This article is intended to answer some frequently asked questions regarding Fatal Accident Inquiries (FAIs) in Scotland. An FAI is a formal investigation led by a Sheriff to establish the circumstances surrounding a death, with a focus on preventing future fatalities in similar situations. The inquiry is not intended to assign blame but to examine potential safety lapses and systemic issues. This article addresses the various stages of the FAI process.
What is the law governing Fatal Accident Inquiries in Scotland?
The law on Fatal Accident Inquiries (FAIs) is set out in the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. The procedure to be followed during an FAI is contained in the Act of Sederunt (Fatal Accident Inquiries Rules) 2017.
What is the purpose of a Fatal Accident Inquiry (FAI)?
The purpose of an FAI is for a Sheriff to investigate the circumstances surrounding a death and determine what steps might be taken to prevent similar deaths in the future. It is important to note that the purpose is not to assign blame but rather to establish the facts and provide recommendations for prevention. Criticism of parties involved may be made, but blame is not the focus.
What deaths will be investigated by a Fatal Accident Inquiry?
There are two types of inquiries:
Mandatory Inquiry: This occurs when someone dies during the course of their employment, while in legal custody, or if a child dies in secure accommodation.
Discretionary Inquiry: This is convened when the Lord Advocate considers that a death was sudden, suspicious, unexplained, or occurred under circumstances that raise serious public concern. An inquiry will be held if it is deemed to be in the public interest.
Who is responsible for investigating the circumstances of a death?
In Scotland, the Crown is responsible for investigating deaths. A designated Procurator Fiscal (PF) will be appointed to lead the investigation. This investigation can take time and may run alongside linked civil or criminal proceedings. Once the PF has concluded their investigations a first notice will be submitted. On receipt of the first notice the Sheriff must make a first order. It is most likely that the first order will require a preliminary hearing to be fixed.
What happens at the preliminary hearing?
The preliminary hearing is the first court hearing in the FAI process. During this hearing, the PF and other participants inform the Sheriff of their readiness to proceed to a full evidential hearing. The PF represents the Crown's interests and ensures the family’s position is heard, especially if the family does not have separate representation. Participants can include family members, employers of the deceased, and any other relevant parties. This hearing allows participants to outline how they may assist the inquiry. The Sheriff manages the case and makes orders regarding the evidence and documents. Often, parties agree on some evidence, which is recorded in a Joint Minute.
What happens after the preliminary hearing?
After the preliminary hearing, the Sheriff may either schedule another preliminary hearing or set dates for the full evidential hearing. It is common for multiple preliminary hearings to take place before the full hearing.
What occurs during the evidential hearing?
The evidential hearing is similar to other court proceedings. The date for the hearing depends on factors like the availability of court time and participants. During the hearing, the PF leads witnesses, and participants can cross-examine them. The hearing is not designed to assign blame, but oral evidence may be used in criminal proceedings. Witnesses may testify about the facts of the death or provide expert opinions. The Sheriff may ask questions of the witnesses as well. After all evidence is presented, participants make submissions analysing the evidence and suggesting the findings the Sheriff should make.
What is a determination, and what does it include?
After the evidential hearing, the Sheriff writes a determination, which is a detailed decision addressing the circumstances surrounding the death. The determination includes:
- When and where the death occurred
- The cause of death
- The cause of any accident leading to the death
- Any precautions that could have been taken to avoid the death
- Any defects in the working system that may have contributed to the death
- Any other relevant facts about the death
Can the Sheriff make recommendations in their determination?
Yes, the Sheriff may make recommendations in their determination if they believe changes should be made to prevent similar deaths in the future. These recommendations are directed to relevant participants, who are required to respond within 8 weeks. The response should explain any actions taken in response to the recommendations or provide reasons why no changes are being made.
What happens after the determination is made?
Once the determination is issued, the participants must respond to any recommendations which are addressed to them within 8 weeks. Both the determination and the responses are published on the Scottish Courts website. After the response is submitted, the FAI process is concluded, and there is no further procedure, nor is there any follow up to check how parties have implemented the recommendations.
Key takeaways
FAIs come in all shapes and sizes. They are the State's tool to investigate certain deaths in Scotland. They involve a thorough investigation of death and can involve a range of investigatory bodies. The Sheriff's Determination can have important consequences through recommendations made. It is crucial for interested parties to be advised by experienced solicitors who can assist with navigating through the process, and ensure that all relevant evidence is before the Sheriff so that the Determination is informed and useful for all parties.
