Fatal accident inquiries (FAI) are statutory public inquiries into the details surrounding the death of a person or group of people. Such an inquiry occurs once the investigation into the death is complete, and the Procurator Fiscal (PF) applies to the Sheriff Court for an FAI. The PF has to hold an FAI when a death occurs during employment, or while in legal custody.
If you or your company, or other organisation, receive a request to participate in a Fatal Accident Inquiry you need to seek independent legal advice immediately.
Parties requested to participate in Fatal Accident Inquiries can often arrange legal representation through their insurance policy or with the help of Legal Aid.
In some circumstances, the PF may hold an FAI if there are issues concerning public safety or general public concern which arise from the death(s) in question, and there is deemed a need to identify any dangerous circumstances which may have caused, or contributed to, the incident.
As an FAI concludes, the Sheriff makes a ruling which will set out:
- the time and location of the death;
- the root cause of death;
- any precautions which may have prevented the death; and
- any system defects that contributed to or caused the death.
An FAI is not allowed to lay fault/blame at the feet of any individual.
The PF is obliged to hold an inquiry if:
- death results from an accident in Scotland while the deceased was acting as an employee for an employer;
- a death results from an accident in Scotland and the deceased was engaged in self-employed activities.
The PF, whose district is most closely linked to the circumstances surrounding the death will conduct the FAI. A FAI can but is not required to, be held if criminal proceedings have been completed against any individual concerning a death, or any accident from which ta death was a result, and the Lord Advocate is satisfied that the circumstances surrounding the death have been established sufficiently during the proceedings.
It is not necessary to hold an FAI if an inquiry has already been held under the HSW Act s14 unless otherwise directed by the Lord Advocate.
The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 also grants discretionary powers to the Lord Advocate if he/she considers it to be in the public interest that an inquiry be held to examine the circumstances surrounding the death on the basis that the death was unexplained, suspicious, sudden or has taken place in circumstances which give rise to public concern.
It is possible then that, under these discretionary powers, an inquiry could be held in the instance of a member of the public suffering a fatal accident arising out of conditions or activities at work.
An FAI will be advertised in the press no less than 21 days before the date it is scheduled to appear at the Sheriff Court.
The PF conducts the inquiry and will examine the witnesses involved, and the employer of the deceased, the representatives of the deceased, or any other person deemed by the Sheriff to have an interest in the inquiry, may also give evidence.
Should you be called as a witness at the inquiry, the Procurator Fiscal will not ask you personally to attach any blame to a party directly. This would, however, not prevent the PF from asking whether you believe whether a particular requirement of the relevant law was observed correctly, and who may have been responsible for ensuring that the law(s) in question were adhered to. It is also probable that the other interested parties appearing at the inquiry will ask you questions.
It is worth remembering that the rules of evidence relating to FAIs are also the rules in civil cases. By this, we mean that all evidence comprised of hearsay is admissible, as is any related documentary evidence. Very often this is useful in cases relating to accidents at work, where inspectors who arrived at the scene promptly may give evidence relating to what they may have heard or been told. This evidence is not ordinarily admissible in other criminal proceedings.
Sheriff’s Determination
The Sheriff at the FAI is not required to decide whether any person was at fault or whether a law breach has occurred. The Sheriff’s function, where the terms of s6 of the 1976 Act are involved, is to determine:
- the time and the death and any accident resulting in the death took place; the cause or causes of such death and any accident resulting in the death:
- the reasonable precautions, if any, whereby the death and any accident resulting in the death might (note: not “would”) have been avoided;
- the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and
- any additional facts which appear to be relevant to the circumstances of the death in question.
The Sheriff frequently makes “formal” determination hearings. These hearings deal only with heads (a) and (b), which are the only findings that they are required to make. In instances like this, the determination can be given at the end of the inquiry. Alternatively, the Sheriff may reserve his determination and release it in writing to all parties, including HSE, at a later date.
The Sheriff’s determination isn’t admissible into evidence, nor is it able to be founded on the back of any judicial proceedings arising out of the death, nor from any accident which resulted in the death. The determination is unable to be relied upon by the relatives of the deceased if pursuing an action for damages as a result of the death in question. Any evidence revealed at the inquiry can, however, be useful to involved parties in such actions.
Procedure after FAIs
Following the FAI, the Fiscal is required to submit its report to the Crown Counsel. In cases where the Counsel is dissatisfied with the reason put forward for not undertaking proceedings, it is possible for the Fiscal to be instructed to prosecute.
Recent case law now makes possible a Sheriff’s determination at the end of the inquiry to be subjected to a judicial review. In light of these developments, it’s worth remembering that a Sheriff’s determination is not necessarily the final one.
Following recent case law, it is now possible for a Sheriff’s determination at the conclusion of the inquiry to be the subject of judicial review. It must be borne in mind in light of these developments that the Sheriff’s determination may not now necessarily be the final one.
