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FAIs: addressing the concerns

15 April 19

A solicitor from the Society’s Public Policy team writes on the need to promote understanding of fatal accident inquiries, of which some high profile hearings are in the pipeline

by Gillian Mawdsley

Fatal accident inquiries (FAIs) are a unique Scottish process for investigating deaths. FAIs are neither an inquest nor an inquiry, terms with which the public may be familiar from news coverage such as the inquest into Princess Diana’s death or the current inquiry into the Grenfell Tower fire.

FAIs are held in public into what are personally tragic circumstances of someone’s death. The public tend to lack understanding of the purpose of FAIs, and their concerns may include:

  • the lengthy delay into holding inquiries into deaths in custody;
  • FAI terminology;
  • absence of legal aid for families to allow for FAI representation. 

To justify the public expense of FAIs, they should secure public confidence effectively by promoting accountability and transparency of process, as well as providing closure for the families concerned. Highlighting the role, and limitations, of FAIs might manage unrealistic expectations.  

Are the public aware why FAIs are held? 

Under article 2 of the European Convention on Human Rights, “Everyone’s right to life shall be protected by law.” Investigations into sudden or unexpected deaths such as the Glasgow bin lorry case ensure lessons may be learned to avoid deaths occurring again. 

Member states require to establish a framework of laws, precautions, procedures and means of enforcement as far as reasonably practicable to protect life. In England & Wales, that role is performed by the coroner; in Scotland, it is for the Crown Office & Procurator Fiscal Service. Implementation as to practices and procedures differs. 

Statutory framework 

FAIs are held under the statutory framework of the Inquiries into Fatal Accidents and Sudden Deaths (Scotland) Act 2016, which modernised the law. Inquests are held under the Coroners and Justice Act 2009. 

FAIs may be mandatory for deaths (i) in custody, such as the student, Katie Allan, who died in HMYOI Polmont; or (ii) during the course of employment (and children in secure accommodation), under s 3 of the Act. The public interest in the circumstances of such deaths can be clearly understood. 

Alternatively, FAIs may be discretionary, held under s 4 of the Act where the Lord Advocate considers that it is in the public interest for an FAI to be held and the death occurred in circumstances giving rise to serious public concern. 

Neither “public interest” nor “serious public concern” are statutorily defined, leaving discretion to the Lord Advocate. FAIs are held into an unlimited range of deaths. Between February 2017 and March 2018, more than 30 FAI determinations (mandatory and discretionary) were published. 

Though the death of a family member is a personal tragedy, not all deaths should result in the instruction of an FAI. Families need to understand that no more may be achieved by holding an FAI or that other actions such as negligence may better serve their needs. That takes tact and legal understanding, and perhaps supports the growing recognition that legal aid is required to allow families to be represented. 

FAIs and inquests are substantially similar; both are held in public following investigations into the death undertaken respectively by the fiscal and coroner. Both determine the cause of death. The FAI requires the sheriff to issue a determination, whereas the inquest delivers a verdict. Neither the FAI nor the inquest decide any question of criminal or civil liability, apportion guilt or attribute blame. They are not a trial – which the public finds hard to understand. 

The FAI concludes with the publication of the determination into what may have been a longrunning, complex case. Recommendations may be included, addressed to a person named in the determination. Section 28(2) of the 2016 Act provides for a response either about (i) what has been or is proposed to be done, or (ii) if not done or not intended, the reasons why not. FAIs provide that opportunity for scrutiny and change, but that too may be lost through the limited ambit of an FAI and public understanding as to the outcome.  

What to change

Whatever the nature of the inquiry instructed into the death, promotion is needed of why the inquiry is being held and that it requires to be held timeously. That then meets the state and public expectations of the inquiry. It is the ultimate objectives of the FAI system in Scotland, more than the process, that need to be addressed. How we can work to achieve this could provide a focus for all, as more high-profile FAIs are held, such as into the suicides in prison.

Gillian Mawdsley, solicitor and public policy executive, Law Society of Scotland

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