August 2019 saw the publishing of the Follow-Up Review of Fatal Accident Inquiries by the Inspectorate of Prosecution in Scotland. The review considered what progress, if any, that has been made by the Crown Office and Procurator Fiscal Service (COPFS) since the original report was released over three years ago.
There have been several areas identified where the COPFS have failed to implement the recommendations or where not enough progress has been made. The review shines a light again on what is considered by many to be a system not fit for purpose with the period of time between the death of an individual and the beginning of a Fatal Accident Inquiry growing in disparity.
A Fatal Accident Inquiry is a robust instrument to expose systematic failing and unsafe working practices as well to ensure there are systems to safeguard and protect those that are held in legal custody.
What is a Fatal Accident Inquiry?
A Fatal Accident Inquiry, or FAI, is a public examination of the circumstances of a death conducted before a Sheriff. The procurator fiscal is responsible for presenting the evidence. Other interested parties, including nearest relatives, employers or organisations are also entitled to lead evidence.
The purpose of an inquiry is to establish the circumstances of the death, and to consider what steps, if any, might be taken to prevent other deaths in similar circumstances. The Sheriff’s role is to establish the facts surrounding the death, rather than to apportion blame or to find fault. The FAI is a fact finding procedure rather than fault-finding. It is not to establish civil or criminal liability.
Types of Fatal Accident Inquiry
Mandatory Inquiries - There is a requirement to hold an FAI where a death occurs in Scotland in the following circumstances:
- a work-related accident
- where the deceased was in legal custody
- a child required to be kept or detained in secure accommodation at the time of their death.
Discretionary Inquiries – Where a death is sudden, suspicious, unexplained or occurred in circumstances which give rise to serious public concern and it is deemed in the public interest for an Inquiry to be held into the circumstances of the death, the Lord Advocate may instruct an Inquiry.
The Follow Up Review – What To Take Away?
The report found that from the date of death to an FAI taking place for all types of cases was on average a staggering 522 working days. The figures were even worse where discretionary cases were concerned with the average sitting at 763 working days.
The review has found a drop in FAIs held in 2014/15 to 2018/19 of 50% in mandatory FAIs and only 12 discretionary FAIs in the last three years. Whilst it would be reasonable to expect that the drop in FAIs may be indicative of a decrease in deaths occurring in the workplace, statistics show that in the same period there have been an increase in deaths recorded due to accidents at work.
We are seeing an increase in fatalities but a decrease in FAIs being carried out. Statistics compiled by the Health and Safety Executive confirm 18 work related deaths for the period of 2014/2015 compared with 29 for 2018/2019. Why is there a decrease in mandatory FAIs if the number of deaths rise? This aberration can be causally linked to the time taken to hold an FAI.
The initial review has made recommendations for a streamlined reporting and notification process with monthly reconciliations introduced with the most recent review commenting that progress has been made but not yet fully achieved.
Three years on from the original review and there has been little progress in improving the public’s confidence in the present system. Excuses such as overstretched workloads and inefficient collaborations are unlikely to be justifications that can be sustained any longer.
The Review comments that the lack of progress in the last three years is disappointing. Despite increased funding in 2018 to increase staffing levels, the COPFS has made little to no progress in shortening the time scale for either mandatory or discretionary Fatal Accident Inquiries.
There continues to be a lack of transparency for family members into the decision making and investigations carried out by the COPFS and the determinations made.
Whilst health and safety laws are foremost in tackling deaths in the workplace, Fatal Accident Inquiries play a key role in demonstrating lessons that can be learned with a view to reducing deaths. It is imperative that they are dealt with promptly and efficiently.
To access the Follow-Up Review of Fatal Accident Inquiries published by the Inspectorate of Prosecution Scotland: follow this link: https://www.gov.scot/publications/follow-up-review-fatal-accident-inquiries/
Blog by Conor Kenny, Trainee Solicitor