Bringing FAIs under review

The aim of the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 was to provide a “more efficient and effective FAI [fatal accident inquiry] system”. Since 2016, criticisms of delays arising within the system have continued. These were seen most recently in relation to the nine year delay in the holding of the FAI into the M9 crash in which Lamara Bell and John Yuill died.

Instructing a general review of the operation of the 2016 Act might be insightful in identifying what is working well, as well as considering the impact on the FAI system of the specific changes introduced by the Act. That would also allow various factors that have significantly affected the operation of FAIs since 2016 to be assessed. These include the increasing demand on the system in the number of death reports received, and the greater complexity and technicality of subject matter, requiring more specialist and lengthy death investigations. The ongoing inevitable effect of Covid-19 on the justice system can also not be ignored. In addition a review would measure how effective FAIs are in bringing about changes through the implementation of their recommendations, one of the key changes intended by the Act.

In recognising that a comprehensive review is unlikely to take place, this article seeks to highlight two ways where changes might be considered. If implemented, these could seek to promote better public understanding of the way the FAI system operates. They could also identify and encourage greater efficiency. First, publishing statistics in relation to the management of the system would enhance overall transparency. Secondly, providing for greater judicial oversight and public awareness where FAIs make recommendations would improve their impact.

Background to the FAI system

Crown Office & Procurator Fiscal Service (“COPFS”) is responsible for investigating sudden, unexpected, unexplained or accidental deaths in Scotland. Since the commencement of the 2016 Act that remit has expanded to include deaths occurring abroad. A proportion of all these deaths will require further investigations being undertaken, culminating in the holding of a judge-led FAI, when instructed. The holding of certain FAIs is mandatory under s 2 of the 2016 Act. Other FAIs are discretionary, instructed by the Lord Advocate under s 4 of the Act where deaths give rise to serious public concern.

It is important to consider the purpose of the FAI system, which is to allow lessons to be learned from the circumstances of the death. It also ensures Scotland’s compliance with article 2 of the European Convention on Human Rights – the right to the protection of life relating to deaths arising in custody at the state’s hands. COPFS’s Strategic Plan 2023-27 accepts its responsibility in “secur[ing] justice for the people of Scotland in respect of… the investigation of deaths”.

COPFS manages the FAI system, admittedly under considerable strain during the pandemic where, inevitably, there were delays in undertaking FAIs as the justice system ground to a halt until operations under social distancing could be commenced. Earlier backlogs in death investigations and in holding FAIs therefore continued, and increased due to the number of Covid-19 deaths. (Covid-19 deaths in care homes are now part of the separate public inquiry.)

The demands on the FAI system need to be clearly understood. That means publishing how many FAIs are outstanding, similar to publication of statistics regarding outstanding criminal trials by Scottish Courts & Tribunals Service. Information regarding FAIs
is currently not publicly available.

Once the number of outstanding FAIs is identified, factoring in the number of FAIs to be held in the future should be relatively straightforward. Inevitably, that figure will vary according to the number of deaths arising annually and the number of FAIs that result.

What is crucial is to assess how many FAIs can be conducted each year. That addresses how quickly any backlog can be tackled and the resources required to manage the conduct and throughput of such FAIs. It includes not only COPFS’s time but also judges’ time and the court estate. Other parties’ time resources, including hospital trusts, Scottish Prison Service, police and pathologists are relevant, if more peripheral factors.

Number of deaths

The number of new deaths reported to COPFS in 2022-23 was 14,149. Some of these, such as those in prison, will result in a mandatory FAI. Scottish Government research identified that the rate of death per 1,000 prisoners increased from 0.85 in 2012-13 to 3.33 in 2022, due to factors such as Covid-19, the number of older prisoners, and suicides in prison. That increases the demand on the FAI system, as both custody deaths and deaths in the course of employment give rise to mandatory FAIs. These should be readily identified when the original report is made to COPFS, then added to the number of outstanding FAIs to provide a snapshot of the demand at any time.

What is admittedly uncertain is the number of discretionary FAIs to be held each year. These are relatively few: four such FAIs were noted as outstanding in August 2022.

Number of FAIs held

According to the report by Scottish ministers under s 29 of the 2016 Act, 43 FAIs were concluded from 1 April 2022 to 31 March 2023. COPFS noted in a similar period that “51 FAIs were completed (concluded in evidence) in relation to the deaths of 59 individuals”. Though these figures differ, they do provide information on how many FAIs are being concluded annually; 51 as the number seems consistent with figures from 2011-12 and 2014-15, confirming that 46 and 54 FAIs respectively were held then.

Holding 51 FAIs annually may not fully address the backlog, recognising continued pressure on the system. Increasing this number would in theory be possible. FAIs under the 2016 Act can be held other than in a court building, relevant if courts are being prioritised to deal with the criminal backlog. Since Covid-19, FAIs can also be held remotely, reducing these court pressures. There may be workforce issues for both COPFS and SCTS, but these have not been identified.

Length of FAIs

A significant factor that has not been fully assessed is the court time taken. FAIs vary in length. An FAI will be brief where no substantial issues arise, such as a prison death from longstanding medical issues. An FAI such as that relating to the Cameron House fire in 2017, with varied interested parties in court, takes much longer.

Ascertaining just how many court days are spent on FAIs annually would help provide an indication of how many FAIs can be completed. That could address whether more than 51 FAIs should or could be held annually, and help manage public expectations on how long it takes to hear the FAI.

Recommendations in FAIs

The FAI system culminates in the issuing of the sheriff’s determination. The determination details the mandatory findings as to the date, place and cause of death. While essential, these are largely uncontentious. The public interest focuses on the determination’s other findings, including any recommendations made by the sheriff under s 26(2) of the 2016 Act. These relate to the taking of reasonable precautions, the making of improvements to any system of working, the introduction of a system of working, or the taking of any other steps. Such recommendations avoid repetition of the circumstances in which the death occurred.

There has been an increase in the number of recommendations made in FAIs, as outlined in the annual report by Scottish ministers. Twenty seven recommendations were made in FAIs from 1 April 2022-31 March 2023. This may be seen as an encouraging statistic. However, the Act does not require any response to be made to any recommendations, nor any judicial management post-FAI. The impact of recommendations may therefore be significantly reduced with no effective continued oversight.

This contrasts to an extent with the inquest system under the Coroners and Justice Act 2009. A coroner can issue a regulation 28 report, similar to making recommendations, where they believe that action should be taken to prevent further death. Such reports require responses, normally within 56 days of the date of the report. The purpose of such responses is seen as “vitally important to society, enabling themes to be recognised, any necessary systemic changes put in place, and any promises of change to be enforced”. That is the exact purpose in holding FAIs. Requiring a more rigorous judicial management approach to reviewing responses to recommendations would help support those interested in effecting change.

Conclusion

The 2016 Act heralded modernisation of the FAI system. Seven years later, reviewing its operation could consider how best to ensure the delivery of an efficient FAI system. It is important for society that the system is as effective as possible.

With the increasing number of deaths being reported, and 51 FAIs undertaken annually, delays are likely to continue if not increase. Aiming at eliminating delays in holding FAIs would ensure that lessons from such deaths can be learned in a timely manner.

Acknowledging the current number of outstanding FAIs would enable the public to understand the demands on the FAI system. Considering how court time is to be allocated to holding FAIs allows a realistic assessment to be made of when an FAI may be held. Increased judicial oversight of responses to recommendations could strengthen the process of ensuring that changes identified by FAIs are made.

Justice is key to the operation of an effective FAI system, as COPFS identifies. Where review of the system is not imminent, implementing these changes may help to improve the system.