Understanding the FAI process can help families and other interested parties know what to expect and how they can participate.
In this article, we will explain:
What a Fatal Accident Inquiry is
When a Fatal Accident Inquiry is held
What happens if an FAI is not held
What happens during an FAI hearing
Who can participate in an FAI
Whether an FAI can result in compensation
What is an FAI?
An FAI is a court process led by a Sheriff to investigate the circumstances surrounding certain deaths in Scotland.
The purpose of an FAI is to establish what happened and consider whether any lessons can be learned to help prevent similar deaths in the future. The process is not concerned with determining criminal or civil liability. Instead, the focus is on understanding the facts surrounding the death and providing recommendations to prevent a similar future occurrence.
When is an FAI held?
If a death has occurred in certain circumstances, an FAI must be held. This includes deaths during the course of employment, while in legal custody (including prison and police custody), or if a child dies whilst in secure accommodation.
An FAI may also be held where the Lord Advocate considers that: -
The death was sudden, suspicious or unexplained, or occurred in circumstances giving rise to serious public concern; and
It is in the public interest to investigate the circumstances further.
An FAI may also be held into the death of a person who was ordinarily resident in Scotland but died in another country. The Lord Advocate will determine when this is appropriate.
What happens if an FAI is not held?
If the Lord Advocate decides not to hold an inquiry, the deceased's spouse, civil partner, cohabitant or, where there is none, their nearest known relative can request written reasons for that decision.
What happens at the FAI hearing?
The Sheriff hears evidence from witnesses, which may include family members, medical professionals, police officers, employers and expert witnesses. The Sheriff is also likely to consider medical records, expert reports and other relevant documents. This provides the Sheriff with a clearer understanding of the circumstances surrounding the death and allows them to consider what recommendations, if any, should be made.
What is the role of the Crown Office and Procurator Fiscal Service (COPFS)?
COPFS is responsible for investigating deaths that may lead to an FAI. The Procurator Fiscal will gather evidence, obtain reports and statements, and consider the circumstances of the death. They will also keep the family informed of significant developments and any decisions about whether an FAI will take place. If it proceeds to an FAI, the Procurator Fiscal will present the evidence to the Sheriff.
Can family members participate in an FAI?
The deceased's spouse or civil partner, cohabitant or, where there is none, their nearest known relative can participate in an FAI as a separate party to the action.
If the deceased's family wish to participate in the FAI, they can choose whether to be legally represented. While legal representation is not required, many families find it helpful to instruct a solicitor, particularly where the circumstances are complex or involve a large amount of evidence. A solicitor can guide families through the process and represent the family's interests throughout the inquiry.
The family of the deceased may be entitled to legal aid to assist with the cost of legal representation. Where the deceased died in legal custody, families are entitled to immediate access to legal aid. In other FAIs, eligibility for legal aid will be assessed by the Scottish Legal Aid Board. For more information, please see here.
Family members can choose the level of involvement that is right for them. For many, participating in the Inquiry provides reassurance that their loved one's death is being fully investigated and gives them an opportunity to have their concerns heard. Families can raise issues they believe should be explored and put questions to witnesses through their solicitor and make submissions to the court.
Alternatively, families may be content for the Procurator Fiscal to address these matters on their behalf. Either way, it is open to the family to attend hearings.
Can other interested parties participate in an FAI?
The Sheriff may also allow other individuals or organisations (known as 'interested parties') to participate if they have sufficient interest in the inquiry. This may include employers, healthcare providers, public bodies, insurers, or others with a connection to the death being investigated. Interested parties can be represented by a solicitor and can lead evidence, ask witnesses questions and make submissions to the court.
What findings can the Sheriff make?
At the end of the FAI, the Sheriff must issue a determination as to the circumstances of the death and make recommendations to prevent a similar incident in the future. The Sheriff's determination will include when and where the death occurred, when and where any accident resulting in the death occurred, the cause of death, the cause of any accident resulting in the death, any precautions which could reasonably have been taken and had they been taken, might have avoided the death or the accident resulting in the death, any defects in systems of working or any other relevant facts. The Sheriff will also make recommendations aimed at improving safety and reducing the risk of similar deaths occurring in the future.
How long does the process take?
Unfortunately, there is no fixed timescale for a Fatal Accident Inquiry. Some FAIs are completed relatively quickly, while others can take several years. The timescale depends on the complexity of the case, the number of witnesses involved and whether expert evidence is required.
Does an FAI result in compensation for the family?
An FAI cannot result in an award of compensation to the deceased's family. In some cases, families may have grounds to pursue a separate civil claim for compensation. Any claim for compensation is entirely separate from the FAI process and will require independent legal advice from a specialist personal injury solicitor. Given the lengthy timescales regularly involved, civil claims are often concluded in advance of the FAI.
For more information on FAIs, please see here.
