FAIs: a new lease of life

The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 has remained largely untouched for over 30 years. However, that situation looks set to change following the recent announcement that Lord Cullen of Whitekirk is to lead a review of the legislation. Expected to last about a year, the review has a wide remit to ensure that the fatal accident inquiry (FAI) system continues to be fit for purpose in light of changes to other parts of the justice system.

FAIs account for a surprisingly high proportion of the decisions reported from the sheriff courts and are of significant importance. The law governing public inquiries set up by ministers was recently updated by the Inquiries Act 2005 and the Inquiries (Scotland) Rules 2007. The review is therefore a welcome opportunity for an examination of the current FAI system and whether it similarly requires to be updated.

Whilst its remit is very wide, there are three main areas which have been the subject of comment by judges and sheriffs in recent years, namely the exercise of discretion by the Lord Advocate in deciding whether to hold a FAI; the responsibility of procurators fiscal to investigate, prepare and conduct FAIs; and the proper procedure to be followed.

Current framework

In addition to their role in relation to the prosecution of crime, fiscals investigate sudden deaths and the circumstances surrounding them. FAIs are mandatory into deaths resulting from accidents at work or deaths in legal custody. However, if it appears to the Lord Advocate to be expedient that an inquiry should be held into the circumstances of a death on the grounds that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern, then a discretionary FAI may be held.

Despite the responsibility of the Lord Advocate and the procurator fiscal in respect of FAIs, the proceedings are civil rather than criminal. Consequently, the standard of proof is on the balance of probabilities. However, the positions of the various parties are not contained in any written pleadings, nor is there any special provision for advance notification of witnesses or productions.

Following evidence and submissions, the sheriff’s determination should, as a minimum, set out the “formal findings”, namely the date, time, place and cause of death. Where appropriate the sheriff shall also determine any reasonable precautions whereby the death might have been avoided; the defects in any system of working which contributed to the death; and any other facts relevant to the circumstances of the death.

Discretion to hold an inquiry

Although refusals by the Lord Advocate to hold FAIs have been the subject of judicial reviews over the years, it was only recently that a decision not to hold an inquiry was overturned. In Kennedy and Black v Lord Advocate [2008] CSOH 21, Lord Mackay of Drumadoon held that when a person dies following treatment in hospital, obligations arise under article 2 of the European Convention on Human Rights. Those obligations require the UK to have in place a system capable of providing a practical and effective investigation of the facts relating to the death of that person, and the determination of any civil liability relating to their death. That system can include the possibility of criminal, civil or disciplinary proceedings, and the initiation of an investigation by the state. In Scotland, this could be by way of a FAI or a public inquiry set up by the Scottish Ministers.

Lord Mackay held that the Lord Advocate had erred in law by failing to recognise that article 2 was engaged. In addition, the view taken as to the potential scope of a FAI was erroneous. The Lord Advocate failed to take into account relevant and material considerations and as a result, the decisions not to hold FAIs were reduced.

By contrast, in November last year, Lady Smith considered article 2 in detail and upheld the Lord Advocate’s decision to refuse to hold a FAI in Alice Emms [2007] CSOH 184. In that case, expert reports obtained by the fiscal concluded that the treatment in question was appropriate and essential. The petitioner was not in a position to challenge the expert views and there was no reason to have any concerns about the care and treatment of the deceased.

It would therefore appear that wider issues of public concern are necessary to challenge successfully the exercise of the Lord Advocate’s discretion. However, this is a very vague requirement and it is envisaged that in light of the decision in Kennedy and Black, calls for FAIs will be more likely, as will challenges to the Lord Advocate’s decisions to refuse to hold FAIs. Lord Cullen’s review may therefore wish to examine closely whether current arrangements provide the most effective and practical form of deaths inquiry compared with other models, as well as the interaction with other forms of investigation including public inquiries and investigations carried out by bodies such as the Health & Safety Executive.

The fiscal’s responsibility

Sheriff Davidson’s determination in Donnet (Dundee Sheriff Court, 4 July 2007) contained a number of observations in relation to the nature and purpose of FAIs. Sheriff Davidson expressed considerable regret that more than four years had elapsed between the death of Mr Donnet and his family receiving the determination, the blame for which he placed firmly on the procurator fiscal, who appeared to him consistently not to give appropriate priority to investigating, preparing and conducting FAIs.

The sheriff suggested that it was legitimate for the Scottish Parliament to consider whether, given the fiscal’s apparent lack of interest, responsibility should remain with the procurator fiscal as opposed to some alternative agency dedicated to the investigation of sudden deaths where these have patently not resulted from crime. Whilst acknowledging that there were sound and proper reasons historically for the fiscal’s responsibility to investigate all sudden deaths, unless they were prepared to devote more resources to the preparation and conduct of FAIs Sheriff Davidson found it hard to see how the present unacceptable situation could continue.

More recently, in his determination into the death of Thomas Bolesworth (Glasgow Sheriff Court, 23 January 2008), Sheriff Mitchell was critical of the fiscal in several respects. First, he criticised the decision not to carry out a post mortem, which resulted in the inquiry becoming more lengthy and expensive than it need otherwise have been. Without a post mortem, it could not be known why Mr Bolesworth died. Secondly, the sheriff was critical of the absence of relevant evidence at the inquiry, including police officers, ambulance personnel and nurses. Consequently, much of the evidence related to an examination of surrounding facts and circumstances from which an inference might be drawn as to how the accident occurred. Finally, he regretted the lack of proper investigation by the fiscal in advance of the inquiry, which led to considerable stress and strain for a witness as a result of a suggestion of potential culpability or inappropriate conduct which was without foundation.

The Crown Office and Procurator Fiscal Service (COPFS) recently issued revised guidance and training for all staff involved in the investigation of sudden and unexplained deaths, including instruction in relation to FAIs, to ensure the most professional and responsive service possible. In some sheriffdoms, COPFS have dedicated deaths units, focused on FAI work. However, the review may wish to consider whether further specialisation across the country would be of benefit in light of criticisms from the bench.

Procedural issues

A number of determinations by sheriffs following FAIs have raised questions about the proper procedure to be followed during such inquiries. Despite this, practice still varies across sheriffdoms. In Mauchland (Dundee Sheriff Court, 7 March 2003), Sheriff Dunbar expressed concerns about the lack of focus in the inquiry and questioned whether issues should have been identified prior to the commencement of evidence. Concerns were also raised about the lack of representation of professionals who might be the subject of criticism, justified or not, at such an inquiry.

The sheriff suggested a management meeting prior to the commencement of evidence, so that proper evaluation could be given of the time to allocate to the inquiry and whether proper intimation had been made to all those who might be the subject of criticism. Some years later in Donnet, Sheriff Davidson found it regrettable that Sheriff Dunbar’s observations appeared to have been ignored, and suggested that a separate system with somewhat different rules and aims may be appropriate for medical cases in the future.

More recently, Sheriff Mitchell suggested in Bolesworth that the Sheriff Court Rules Council should examine the issue of fair notice in FAIs. It was suggested by one of the parties during that inquiry that a line of medical questioning by the local authority had not been raised with the consultant in intensive treatment medicine. Sheriff Mitchell took the view that this was a fundamental issue in the conduct of a FAI and should be examined.

In some sheriffdoms, such as Lothian & Borders and Glasgow & Strathkelvin, FAI practice notes have been issued, requiring preliminary hearings to be scheduled in order to consider issues such as the state of preparation of the parties; the likely length of the inquiry; the availability of witnesses and productions; and whether any evidence is capable of agreement. It is hoped that the review will examine the framework of procedural rules for FAIs and consider whether to place these practice notes on a nationwide statutory footing.

Opportunity

A review of this area of Scottish regulatory law is overdue. Whilst concerns have been expressed in recent years in relation to the areas highlighted in this article, the review also provides a chance to examine all aspects of the FAI system. These may include issues such as legal representation of bereaved families, following up on recommendations made by sheriffs, and the use of expert evidence. Those who are regularly involved in such inquiries should make full use of this opportunity to make representations about improvements which could be made to bring about a more structured system for FAIs for the next 30 years.

Jillian Martin-Brown is an associate in Dundas & Wilson’s Dispute Resolution Group, specialising in professional discipline and regulation

ROOT AND BRANCH: CULLEN REVIEW

Among other things, the Cullen review is likely to consider: the sheriff court as the forum for FAIs; the framework of FAI procedural rules; the use of experts; legal representation of the bereaved; status of the sheriff’s recommendations; inquiries into deaths in healthcare or legal custody; categories of discretionary and mandatory inquiries; inquiries into deaths abroad; the interaction with other investigations.