Fatal Accident Inquiries: review

Introduction and Background

The responsibility for the investigation of any death that requires further explanation rests with COPFS. This includes any sudden, unexpected or unexplained death and any death which has occurred in circumstances which give rise to public concern. The death of a loved one is a traumatic and distressing event. For those bereaved by sudden or unexplained death, involvement with the procurator fiscal service and an unfamiliar justice system, occurring at a time of significant personal crisis or distress, can be bewildering and concerning. All are entitled to expect a thorough and professional investigation and to be guided through the process with sensitivity and respect. Protracted investigation and unexplained delays is likely to undermine public confidence in COPFS and, potentially, in Fatal Accident Inquiries.

What is a Fatal Accident Inquiry ( FAI)?

1. A Fatal Accident Inquiry is a public examination of the circumstances of a death in the public interest. FAIs are conducted before a sheriff, following an investigation by the procurator fiscal. The procurator fiscal is responsible for presenting the evidence. Other interested parties, including nearest relatives or employers are also entitled to lead evidence.

2. Having heard the evidence, the sheriff will issue a determination that includes findings on where and when the death and any accident resulting in the death occurred and the cause of such death or accident. Where the sheriff has identified reasonable precautions which might have avoided the accident or death; defects in any system of work which led or contributed to the accident or death; any fact relevant to the death, ^[1] he/she may make recommendations to prevent similar deaths happening in the future. Determinations of public interest are published on the Scottish Courts and Tribunals Service's ( SCTS) website.

3. Unlike criminal or civil proceedings, an FAI is an "inquisitorial" process where the sheriff's role is to establish the facts surrounding the death, rather than to apportion blame or to find fault. ^[2] In contrast, criminal and civil proceedings are "adversarial" in nature. In criminal proceedings the purpose is to establish whether the accused is guilty of a crime and in civil proceedings, it is often to establish legal rights or liability. FAIs are not usually held until a decision has been taken on whether there should be criminal proceedings.

Review of Fatal Accident Inquiries Legislation

4. The law governing Fatal Accident Inquiries has recently been scrutinised by the Scottish Parliament, with the passage of the Fatal Accidents and Sudden Deaths etc. (Scotland) Bill ("the Bill"), resulting in the enactment of the Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 ("the Act"). ^[3]

5. Prior to the introduction of the Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, the legislative framework for FAIs was governed by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 and the Fatal Accidents and Sudden Deaths Procedure (Scotland) Rules 1977.

6. In 2009, the Scottish Government commissioned a review on the operation of the FAI legislation, led by Lord Cullen of Whitekirk (the "Cullen Review"), to ensure that Scotland has an effective and practical system of public inquiry into deaths, fit for the 21st century.

7. The Cullen Review made 36 recommendations. The recommendations which were addressed to the Crown Office and Procurator Fiscal Service ( COPFS) ^[4] were largely implemented by the establishment of the Scottish Fatalities Investigation Unit ( SFIU), a specialist unit to lead the investigation of all suspicious, sudden and unexplained deaths.

8. The Scottish Government accepted most of the recommendations made in the Cullen review and consulted on proposals to introduce legislation. The Bill was introduced to implement most of the recommendations and reform and modernise the law in relation to FAIs.

Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016

9. The Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 received Royal Assent on 14 January 2016. It repeals the 1976 Act and introduces new provisions to govern the system of FAIs in Scotland. ^[5] Other changes will be implemented through procedural rules made by the Court of Session, following consultation with the Scottish Civil Justice Council ( SCJC) to the Court of Session. ^[6]

10. The Act retains the requirement to hold an FAI where a death occurs in Scotland as a result of a work-related accident or where the deceased was in legal custody at the time of their death. Such inquiries are referred to as "Mandatory inquiries". ^[7] The Lord Advocate can decide not to hold a mandatory FAI, if satisfied that the circumstances of the death have been sufficiently established during the course of other proceedings. ^[8]

11. The Act also retains the discretion of the Lord Advocate to hold an FAI into a death which is sudden, suspicious, unexplained or has occurred in circumstances which give rise to serious public concern. Such inquiries are referred to as "Discretionary inquiries". ^[9]

12. The main features of the Act that differ from the previous provisions are:

• The definition of "legal custody" is redefined and mandatory inquiries are extended to include the deaths of children in secure accommodation (Section 2);
• The Lord Advocate has discretion to hold an FAI in certain circumstances where someone who ordinarily resides in Scotland dies abroad (Section 6);
• The Lord Advocate must prepare a family liaison charter setting out how the procurator fiscal will liaise with the family of a person to whose death an inquiry may or is to be held. The Lord Advocate must consult appropriate persons before preparing the charter; lay the charter before the Scottish Parliament and publish the charter (Section 8);
• The Lord Advocate is to provide written reasons where a decision is taken not to hold an FAI, if requested to do so (Section 9);
• It alters and extends those persons who may participate in an FAI (Section 11);
• It provides greater flexibility in the location and accommodation that can be used for holding FAIs (Sections 12 and 13);
• It provides for a preliminary hearing ^[10] system and for agreement of evidence (Sections 16 and 18);
• A requirement is placed on those to whom sheriffs recommendations are directed to respond or to provide reasons for not responding and SCTS will publish this information on their website (Section 28); and
• It allows for inquiries being re-opened or for fresh inquiries to be held where there is new evidence (Sections 30, 33 and 34).

13. During the consultation process and the passage of the Bill, repeated criticisms were made of long delays between the date of death and the start of FAIs. A number of factors were advanced for these delays including:

• The need to wait for the outcome of other investigations by bodies such as the Health and Safety Executive or the Air Accidents Investigation Branch;
• The need to obtain expert evidence;
• The need to consider whether criminal proceedings should be instigated and, where appropriate, to conduct these first;
• The complexity of some investigations, especially those involving medical and health and safety considerations, and the over-riding necessity of conducting deaths investigations thoroughly; and
• The time elapsed between the death and it being reported to the procurator fiscal.

Aim/Remit

14. While one, or a combination of these factors, are likely to have contributed to delays in some FAIs, the lack of analysis on a case-by-case basis of the reason(s) for any delay inhibits meaningful discussion on the impact of each of these factors. Rather than relying on anecdotal assumptions, the aim of this inspection was to obtain factual data on the causes of delay, to identify recurring themes and make recommendations to improve the efficiency and effectiveness of deaths investigations and the FAI process.

Methodology

15. Evidence was obtained from a range of sources, including:

• Interviews with key personnel at COPFS involved in the investigation of deaths and preparation of FAIs;
• Interviews with representatives from the Mental Welfare Commission, British Transport Police, Air Accidents Investigation Branch, Maritime and Coastguard Agency, Marine Accident Investigation Branch, Health and Safety Executive, Healthcare Improvement Scotland, Care Inspectorate, Central Legal Office, and the Scottish Government;
• Interviews with criminal justice partners including social workers, sheriffs, solicitors, Police Scotland, Ministry of Justice and Scottish Legal Aid Board;
• A review of relevant documentation; and
• Examination of 88 cases where an FAI had been concluded between 2012/13 to 2014/15, ^[11] including all relevant information from the case files and COPFS IT systems. We examined a range of factors, including the type of FAI, the age of the case, the reporting agency, the use of experts, the involvement of participants including nearest relatives, whether there was a criminal investigation and reasons for adjourning proceedings. In each case we measured timelines between various milestones including the date of death to the start of an FAI.

16. We would like to thank all those that gave up their time to assist with this inspection and in particular the staff of the Scottish Fatalities Investigation Unit ( SFIU) for their open and active participation.