FAIs – for what purpose?

The current system of fatal accident inquiries (FAIs) is provided for by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. Under the Act, FAIs are mandatory for deaths resulting from an accident in the course of employment or while in legal custody. They are discretionary where a death was sudden, suspicious or unexplained or has occurred in circumstances such as to give rise to serious public concern. Notwithstanding that a death may fall into the mandatory category, the Lord Advocate can decide there will be no FAI if he is satisfied that the circumstances of the death have been sufficiently established in the course of criminal proceedings.

In 2009 Lord Cullen issued his Review of Fatal Accident Legislation on the operation of the 1976 Act. On 19 March 2015 the Scottish Government published the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Bill (the Government’s bill), implementing many of the recommendations made by Lord Cullen.

On 1 June 2015 a second bill – the Inquiries into Deaths (Scotland) Bill (the member’s bill) - was introduced to the Scottish Parliament by Patricia Ferguson MSP. This also gives effect to many of the recommendations of the Cullen report. However, it goes beyond those recommendations and the proposals of the Government's bill.

According to its policy memorandum, the member’s bill has three overarching policy objectives:

1. extending the scope of mandatory fatal accident inquiries;
2. placing families of the deceased at the heart of the inquiry process and giving them their proper place in relation to the investigation of the death of their loved one; and
3. ensuring that lessons learned from the death are enforced for the purposes of ensuring the future safety of Scottish citizens.

Both bills before the Scottish Parliament seek to address the following perceived shortcomings of the 1976 Act.

Delay

The inquiry process is often significantly delayed by pending criminal investigation and prosecution. The member’s bill makes the following proposals, requiring:

• the Lord Advocate, within six months after death (or where there are criminal or other inquiry proceedings into the death, within three months after their conclusion), to notify the relatives of the deceased as to whether or not there is to be an FAI and to give reasons for whatever decision is reached;
• the Lord Advocate, within three months after notifying the relatives that there is to be an FAI, to apply to the sheriff to hold an FAI; and
• the sheriff to hold a preliminary hearing within three months of such application being made.

The Lord Advocate will have some flexibility in meeting these timescales but must keep the relatives informed as to any delay and the reasons for it.

These provisions are more prescriptive than those in the Government’s bill, which require sheriffs to “have regard to the desirability of holding the inquiry as soon as is reasonably practicable”. In its policy memorandum, the Government states: “if artificial timeframes were to be adopted, these would likely mean that a fatal incident may not be adequately investigated, or investigated in a rush, and the cause of death may not be satisfactorily established”.

Involvement of families of the deceased

The families of the deceased are not central to the current inquiry process, nor do they take a role in shaping the scope of the inquiry. The proposals in the member’s bill provide:

• the family of the deceased the right to make submissions on the range and scope of the inquiry at the preliminary hearing; and
• for financial provision to be given to relatives to enable them to be legally represented.

In its policy memorandum the Scottish Government disagrees with these proposals, stating that the “broad thrust of [the member’s] bill seems to be to transfer power to investigate deaths from COPFS, who act in the public interest, to bereaved families who may be seeking to establish grounds for civil redress”. The Scottish Government also cites “severe restraints on public expenditure” as justification for not providing legal aid.

Lack of transparency

The Lord Advocate is not currently required to explain the decision as to whether or not an inquiry will be held. However, the proposals in the member’s bill require the Lord Advocate to provide written notification to the families as to whether or not an inquiry will be held.

The intention is to entitle families of the deceased to question the Lord Advocate and challenge the decision by way of judicial review. The proposal would require that a reason be given for every decision. The Cullen report recommended the Lord Advocate only be required to give reasons where he has decided not to hold an inquiry. The Scottish Government has followed Lord Cullen’s recommendation and believes the member’s bill would mean that bereaved families and their lawyers would effectively wrest control of the system from the Crown Office. It estimates that the Crown Office receives 11,000 death reports per annum, and as such believes that providing reasons for every decision in every case would represent an “almost overwhelming and unachievable burden”. The Scottish Government also points out that decisions can currently be challenged by way of judicial review.

Focus on facts, rather than lessons

It is widely agreed that any investigation should go beyond establishing the cause of the death to learning lessons from the death in order to prevent further occurrences. The proposals in the member’s bill provide:

• for an FAI to be held where, after criminal or other inquiry proceedings are concluded, the Lord Advocate is satisfied that the circumstances of the death are known but is not satisfied there are no further lessons to be drawn from the death to avoid similar accidents in the future;
• that a sheriff’s recommendations as to what action is required to prevent future deaths may be addressed to persons (whether or not participants in the FAI), and that those recommendations be enforceable by criminal sanctions; and
• for the sheriff to give advance notice and a warning notice to any person to whom a recommendation is made, and for an appeal by that person to the Sheriff Appeal Court and to the Court of Session against a recommendation.

In its response to the member’s bill, the Faculty of Advocates suggested that if recommendations were legally binding, parties might be more likely to instruct legal representation to avoid such a burden. The Government’s bill does not propose to make such recommendations legally binding. Instead, parties must respond to recommendations, stating whether and how they intend to comply.

Death resulting from industrial disease/hazardous substances

The current legislation does not provide for a mandatory FAI resulting from exposure to hazardous substances or due to industrial diseases. The proposals in the member’s bill extend the range of work-related deaths (in relation to which an FAI is mandatory) to include deaths resulting from industrial disease or exposure to hazardous substances due to a person’s employment. The FAI need not be held if the circumstance of the exposure is well known within the industry and there are no further lessons to be learned from the death.

The Government does not see this provision as necessary. It takes the view that any death arising in a new industry and raising issues of public concern can be addressed by the holding of a discretionary FAI.

Definition of legal custody

The current definition of legal custody is narrow. Both bills before the Scottish Parliament follow the recommendation of the Cullen report by extending the category of deaths in legal custody and in relation to which an FAI is mandatory. Both bills extend the definition to include children detained in secure accommodation. The member’s bill goes beyond that to include individuals subject to compulsory detention by a public authority, individuals detained by reason of a compulsory treatment order, voluntary in-patient treatment for a mental disorder, and individuals subject to a child protection or supervision order.

Deaths abroad

Both bills propose that FAIs into deaths of Scots abroad where the body is repatriated should be held at the discretion of the Lord Advocate. As with other discretionary inquiries, the death must have been sudden, suspicious or unexplained and have occurred in circumstances giving rise to serious public concern.

Specialist courts

The proposals in the member’s bill:

• require the Lord Advocate to apply for the holding of an FAI by a sheriff specialising in personal injury cases or the specialist personal injury court for all work related deaths; and
• provide for the inquiry to be reopened in the event of new evidence.

The Government sees this proposal as being at odds with its policy of moving away from adversarial FAIs. It maintains that the purpose of an FAI is to act as a fact-finding forum held in the public interest. It should not “attempt to apportion blame or guilt in the civil or criminal sense”. The Government does, however, propose that sheriffs and summary sheriffs might specialise in FAIs.

The Government’s bill also provides for fresh proceedings following the determination of the original FAI. That decision would rest with the Lord Advocate alone, on the basis that it would not be appropriate for someone who felt aggrieved by the original determination to instigate new proceedings.

Compromise ahead?

Both bills are intended to reform and modernise. The Government’s bill contains practical measures to ensure that the system is “effective, efficient and fair”. The author of the member’s bill – Patricia Ferguson – describes them as “tinkering at the edges of this legislation”. She considers that the current system is “not fit for purpose” and her bill represents a “fundamental overhaul of the system”.

Both bills are currently before the Scottish Parliament. Given their inconsistencies there is no realistic prospect of both being enacted as they currently stand. It will be interesting to see what sort of compromise is struck during the amendment process. While any resultant Act seems likely to improve the existing system, it remains to be seen how far the Scottish Parliament is prepared to go when passing this legislation.