Scottish Government

CHAPTER 2 CURRENT LEGISLATION AND ORGANISATION

This chapter is concerned with:

• the statutory legislation for fatal accident inquiries in Scotland (paragraphs 2.1 - 2.11);
• the procurator fiscal and the Lord Advocate (paragraphs 2.12 - 2.22);
• communications with relatives and their legal representation (paragraphs 2.23 - 2.24);
• the location and timing of the fatal accident inquiry (paragraphs 2.25 - 2.26);
• procedure (paragraphs 2.27 - 2.33);
• public inquiries into deaths in Scotland (paragraphs 2.34 - 2.37); and
• article 2 of the European Convention for the Protection of Human Rights and Freedoms (paragraphs 2.38 - 2.45).

The statutory legislation for fatal accident inquiries in Scotland

2.1 The Fatal Accidents Inquiry (Scotland) Act 1895 introduced mandatory public inquiries before a sheriff and jury into the causes and circumstances of fatal accidents sustained by employers or employees in the course of "industrial employment or occupation." ³ The jury were required to return a verdict setting forth, so far as was proved, when and where the accident and the death or deaths took place, and the cause or causes. ⁴

2.2 The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 amended the 1895 Act by extending the verdict of the jury to include the person or persons, if any, to whose fault or negligence the accident was attributable, the precautions, if any, by which it might have been avoided, any defects in the system or mode of working which contributed to the accident, and any other facts disclosed by the evidence which, in their opinion, were relevant to the inquiry. ⁵ In practice it was rare for the jury to attribute fault or negligence. The 1906 Act also provided that, in the case of a sudden or suspicious death, the Lord Advocate might, whenever it appeared to be expedient in the public interest, direct that a public inquiry into the death and its circumstances should be held. Such an inquiry was to follow the procedure under the 1895 Act as amended. ⁶ Later the Prisons (Scotland) Act 1952 made it mandatory that an FAI should be held where a prisoner in a prison died. ⁷

2.3 These provisions were the antecedents of the Act. However, the Act differed in that it adopted the recommendation of the Grant Committee in 1967 that FAIs should be held before a sheriff sitting alone, on the basis that the requirement of a jury under the previous legislation served no useful purpose. ⁸ On the other hand the government of the day did not accept the committee's recommendation that inquiries into deaths due to accidents in the course of industrial employment should cease to be mandatory. Indeed, it extended the mandatory category to include the deaths of self-employed persons.

2.4 Thus the Act provides for a mandatory FAI (i) where it appears that the death has resulted from an accident in Scotland while the person who has died, being an employee, was in course of his employment or, being an employer or self-employed person, was engaged in his occupation as such; and (ii) in the case of a death where the person who has died was, at the time of his death, in legal custody. The only rider to this is that an FAI does not require to be held into a death in the mandatory category where criminal proceedings have been concluded against any person in respect of the death and the Lord Advocate is satisfied that the circumstances have been sufficiently established in the course of such proceedings. ⁹

2.5 Provision is made for a discretionary FAI where it appears to the Lord Advocate to be expedient in the public interest that an inquiry should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern. ¹⁰

2.6 Each of the categories relates to a death occurring "in Scotland", which by itself refers to the land of Scotland and its territorial seas. However, section 9 of Act provides, in its current form, that a death or any accident from which death has resulted which has occurred (a) in connection with any activity falling within subsection (2) of section 11 of the Petroleum Act 1998; and (b) in that area, or any part of that area, in respect of which it is provided by Order in Council under subsection (1) of that section that questions arising out of acts or omissions taking place therein are to be determined in accordance with the law in force in Scotland, is to be taken to have occurred in Scotland. The Civil Jurisdiction (Offshore Activities) Order 1987, ¹¹ which was made under previous legislation and kept in force by the Petroleum Act 1998, currently so provides in respect of part of the United Kingdom continental shelf. Accordingly to that extent the sheriff court has extra-territorial jurisdiction in respect of FAIs.

2.7 It may be noted that the Coroners and Justice Bill, which is currently before the United Kingdom Parliament, makes provision for FAIs in Scotland in respect of the death outside the United Kingdom of persons engaged in, or linked to, active service abroad. This would follow notification of the Lord Advocate by the Secretary of State or the Chief Coroner in England. ¹² The Act would be amended by the insertion of section 1A for this purpose. ¹³ The Lord Advocate would have to determine the appropriate district and sheriffdom for such FAIs. Since the purpose of these provisions related to defence it was outwith the competence of the Scottish Parliament.

2.8 Section 6(1) of the Act provides that at the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff has to make a determination setting out the following circumstances of the death, so far as they have been established to his satisfaction -

"(a) where and when the death and any accident resulting in the death took place;

(b) the cause or causes of such death and any accident resulting in the death;

(c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided;

(d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and

(e) any other facts which are relevant to the circumstances of the death."

2.9 It should be noted that, unlike the previous legislation, no provision is made by the Act for the sheriff making any finding of fault or negligence. This is no part of the function of the sheriff. ¹⁴ Sheriffs make recommendations in about one third of determinations.

2.10 The Act provides that the sheriff's determination is not to be admissible in evidence or be founded on in any judicial proceedings of whatever nature arising out of the death or of any accident from which death resulted. ¹⁵ On the other hand the Act places no restriction on the use of evidence given at an FAI, in so far as evidence in any legal proceedings is admissible in any other.

2.11 In the conduct of an FAI the sheriff performs a judicial function, ¹⁶ but, unlike a judge in an ordinary court of law, does not determine the rights or obligations of any party. The sheriff has a limited power to make an award of expenses. ¹⁷ The determination, like the reports in other forms of public inquiry, is not subject to appeal, but its specific findings in relation to the heads of section 6(1) may be challenged by judicial review. ¹⁸

The procurator fiscal and Lord Advocate

2.12 The Crown Office and Procurator Fiscal Service is responsible for the investigation of all sudden, suspicious, accidental, unexpected and unexplained deaths in order to establish the cause of death and the circumstances which gave rise to them. The COPFS is organised into eleven areas, each of which is headed by an area procurator fiscal who is responsible for the work of his or her area and is accountable to the Lord Advocate as the head of the systems of criminal prosecution and the investigation of deaths. On devolution the responsibilities of the Lord Advocate as head of these systems was preserved. In the Scotland Act 1998 they are referred to as the Lord Advocate's retained functions. The Scotland Act provides that "[a]ny decision of the Lord Advocate in his capacity as head of the systems of criminal prosecution and investigation of deaths in Scotland shall continue to be taken by him independently of any other person". ¹⁹

2.13 Each of the eleven areas has either a dedicated deaths unit or an area deaths specialist, with specific responsibility for the investigation of deaths for criminal proceedings and FAIs. A senior member of legal staff is assigned to supervise the investigation of deaths. All but two of the areas have a deaths unit.

2.14 Currently around 14,000 deaths are reported every year. About half of them are investigated by the procurator fiscal. The investigation may be triggered by a report from the police or some other agency such as a prison governor or a hospital authority. The nature and extent of the investigation will depend on the facts of the case. The procurator fiscal will obtain police statements, precognitions and expert reports to such extent as is necessary. Some of these investigations may, of course, lead to criminal prosecution. In practice the need for an FAI arises in only a very small fraction of the cases. The procurator fiscal has to consider, in the light of investigations, whether an FAI is, or may be, required. He or she has a statutory power to cite witnesses for precognition. ²⁰

2.15 If an FAI appears to be mandatory the procurator fiscal will normally proceed to arrange for one without reference to Crown Office. The wide discretion given to the Lord Advocate permits the holding of an FAI in a variety of situations, such as an unexplained death in hospital or a death in circumstances suggesting a risk to public health or safety or a road accident on a bad stretch of road. ²¹ Where there is a question of a discretionary FAI, the procurator fiscal has to report to the deaths unit which is part of the High Court Unit in Crown Office, with the views of the relatives of the deceased and his or her recommendations. It is for Crown Counsel, in consultation with the Law Officers where appropriate, to decide whether a discretionary FAI should be held, and for the procurator fiscal to apply for one if so instructed. A decision of the Lord Advocate to decline to apply for the holding of a discretionary FAI is open to challenge by judicial review. ²²

2.16 It is normal for a prosecution arising out of a fatal accident to be brought to a conclusion before any petition for the holding of an FAI is presented.

2.17 In cases which attract high public interest, such as a disaster, the procurator fiscal has to consider the possibility of other forms of public inquiry, in particular an inquiry under the Inquiries Act 2005 (see paragraphs 2.36 - 2.37). A decision in favour of such a public inquiry is a matter for the Scottish Ministers.

2.18 It has been noted that there has been a considerable drop in the numbers of FAIs since the 1990s. For example, in 1998/99 141 FAIs were recorded by the COPFS, whereas in 2008/09 the number was 57. The COPFS stated that this has been due to a number of factors. In its response to the consultation paper, it referred to "better provision of clinical histories from medical staff; rapid advances in medical technology (in particular CT and MRI scans); and developments in histology and DNA techniques". It also said that since the 1970s there have been fewer road traffic deaths, deaths in custody and deaths at the workplace. The COPFS stated that there has been no policy decision to reduce the number of FAIs, subject to the qualification that, in the case of drug-related deaths, there has been a move towards a more rigorous prosecution policy.

2.19 The COPFS has a working relationship with not only the police but also, in accordance with memoranda of understanding or a protocol, with the Air Accidents Investigation Branch, the Rail Accident Investigation Branch, the Office of Rail Regulation, the Marine Accident Investigation Branch and the Health and Safety Executive. The procurator fiscal commences investigation at the same time as these bodies. They supply preliminary reports and findings where an FAI is mandatory or a discretionary FAI is contemplated. I understand, however, that a decision to proceed with an FAI in advance of the conclusion of their investigations would only be taken where it was clear that there was no prospect of the remainder of the investigation yielding information material to an FAI, or of the FAI being an obstacle to the completion of the investigation. Reports are also made to the procurator fiscal by the Maritime and Coastguard Agency which investigates significant breaches of maritime legislation.

2.20 The COPFS states that over a number of years it has developed collective expertise in dealing with major fatal incidents, some of which have required to be the subject of a public inquiry. In many it has taken the leading role in the investigation of alleged crimes or offences alongside the investigation of the deaths. This expertise has helped inform current practices and procedures, and has been incorporated into revised guidance and training for staff.

2.21 I have also taken account of two recent developments. In 2008 a specialist Health and Safety Division was established in the COPFS to deal with all cases reported by the police, the HSE, local authorities and other specialist reporting agencies which have a health and safety element. The division also deals with deaths in the workplace where a specialist health and safety input is required, whether for prosecution or an FAI. This division is led by a senior prosecutor and consists of experienced lawyers working in different parts of Scotland, with dedicated senior Crown Counsel.

2.22 Further, on 31 August 2009 the Lord Advocate announced that she would establish a new specialist unit to lead the investigation of complex sudden and unexplained deaths. She stated that, with the proposal that procurators fiscal become involved in new areas, such as the investigation of Scottish military deaths abroad, to which I referred in paragraph 2.7, and the increasing pace of scientific developments, there was a need for procurators fiscal to have access to highly trained specialists and investigators who would bring their expertise to bear from the earliest stage of an investigation.

Communications with relatives and their legal representation

2.23 The procurator fiscal is expected to obtain the views of the relatives, and discuss the decision of the Lord Advocate with them; to discuss with them or their legal representatives what witnesses he or she intends to lead and ask whether there are any questions which they wish to be answered; to explain the process to them and keep them up to date with progress. He or she may put questions to witnesses at their request. The work of the procurator fiscal may be supplemented by that of Victim Information and Advice, which can provide information and advice to relatives where an FAI is to be held or where there are likely to be significant further inquiries into a death. It does not provide emotional support. It can provide details of the few agencies which give such support. Victim Support Scotland does not officially provide support in connection with FAIs as it is not funded for that purpose.

2.24 Legal aid is available for relatives (and others). In 2006/07 the Scottish Legal Aid Board received 23 applications for legal aid in respect of FAIs, of which 8 were granted. The corresponding figures for 2007/08 were 23 and 4; and for 2008/09 19 and 15. It is understood that the SLAB requires to be satisfied that there is some identifiable purpose in the applicant being separately represented from the Crown.

The location and timing of the fatal accident inquiry

2.25 The procurator fiscal has to apply for an FAI to the sheriff with whose sheriffdom the circumstances of the death appear to be most closely connected. ²³ On such application the sheriff has to make an order fixing the time and place for the holding by him of the FAI, "which shall be as soon thereafter as is reasonably practicable". ²⁴ It may be noted that section 3 of the 1895 Act required the procurator fiscal to collect evidence "so soon as he receives information of the death or deaths", and also "forthwith" present a petition to the sheriff for the holding of the FAI.

2.26 In practice the procurator fiscal gives advance notice to the sheriff clerk of the need for the FAI, its projected length and any significant considerations, such as a large number of witnesses or parties, security matters or expected media interest. They discuss how the required accommodation, resources and space within the court's programme may be provided.

Procedure

2.27 In response to the application by the procurator fiscal the sheriff has to grant warrant to cite witnesses and havers to attend at the FAI at the instance of the procurator fiscal or of any other person who may be entitled by virtue of the Act to appear at it. ²⁵ The procurator fiscal has then to intimate the holding of the FAI and the time and place fixed for it to the wife, husband, civil partner or nearest known relative of the deceased, and, where relevant, the employer or the authority in whose legal custody the deceased was at the time of his death. Intimation is also to be made to the Secretary of State for Employment in cases falling within section 9 of the Act; and to any minister or government department with power to cause a public inquiry to be made. Intimation of the holding of an FAI is to be given not less than 21 days before its date. ²⁶

2.28 The procedure at and prior to the holding of the FAI is to some extent set out in the Act and in the Rules made under the Act. ²⁷ This has been supplemented by the holding in some cases of preliminary hearings in advance of the FAI. Provision for this purpose was made in the Glasgow and Strathkelvin Act of Court (Consolidation) Part IV, and in Practice Note No 1, 2004 for the Sheriffdom of Lothian and Borders. In the case of the former the provision is mandatory, whereas in the case of the latter it is at the discretion of the sheriff. However, each set is broadly to the same effect. Thus the former states that at the preliminary hearing the sheriff is to ascertain from the parties or their representatives, so far as is reasonably practicable, whether the inquiry is likely to proceed on the date assigned, and in addition is to take steps to identify -

"(a) the likely length of the inquiry and whether it can be concluded within the time allocated;

(b) the state of preparation of the parties or their representatives;

(c) the availability of witnesses;

(d) the issues which are likely to be raised at the inquiry;

(e) evidence that may be led by affidavit in terms of Rule 10 [of the Rules] and any evidence that can be agreed;

(f) special arrangements for bulky/voluminous productions;

(g) whether evidence should be recorded by mechanical means or by use of a shorthand writer;

(h) the order of parties' cross-examination of witnesses;

(i) whether there are any other parties on whom intimation of proceedings should be made;

(j) any other matter any party wishes to raise."

2.29 While notice of the holding of the FAI has to be given not less than twenty one days before its date, ²⁸ the sheriff may assign the date for a preliminary hearing before it. ²⁹

2.30 At the FAI it is the duty of the procurator fiscal to adduce evidence as to the circumstances. The procurator fiscal may appear on his or her own behalf or be represented by an assistant or depute procurator fiscal or Crown Counsel. ³⁰ The wife or husband, or the nearest known relative of the deceased, the employer of the deceased (where relevant), an HSE inspector and any other person who the sheriff is satisfied has an interest in the FAI may appear and adduce evidence. Each may appear on his or her own behalf or be represented by an advocate or a solicitor or, with the leave of the sheriff, by any other person. ³¹ The witnesses led by the procurator fiscal and the other parties are subject to cross-examination.

2.31 Subject to the provisions of the Act and the Rules, the rules of evidence, the procedure and the powers of the sheriff to deal with contempt of court and to enforce the attendance of witnesses are to be "as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone". ³² The sheriff is entitled to be satisfied that any circumstances referred to in section 6(1) have been established by evidence, notwithstanding that that evidence is not corroborated. ³³

2.32 The reference to the rules for ordinary civil causes enables the sheriff to order the recovery of documents and the examination of witnesses on commission or interrogatories, and to request for the taking of the evidence of witnesses abroad. ³⁴

2.33 The public nature of the proceedings should be noted. The FAI is to be held in such courthouse or other premises as appears to the sheriff to be appropriate. ³⁵ Public notice of the holding of the FAI and of the time and place fixed for it is to be given. ³⁶ The FAI is to be held in public, subject to any reporting restrictions ordered by the sheriff in the case of persons under seventeen years of age. ³⁷ The sheriff has to read out the determination in public, save where he or she requires time to prepare it and considers that it is not reasonable to fix an adjourned sitting for the sole purpose of reading out. In such a case the sheriff clerk is to send free of charge a copy to the procurator fiscal and to any person who appeared or was represented at the inquiry and is to allow any person to inspect it free of charge for three months. ³⁸ Subject to payment of a prescribed fee, any person may obtain a copy of the determination, and any person with an interest in the inquiry may obtain a copy of the transcript of the evidence within three months of the determination. ³⁹ The texts of determinations are available on the internet. ⁴⁰

Public inquiries into deaths in Scotland

2.34 In Scotland there are a number of statutory provisions for public inquiries, some of which interact with the 1976 Act. There are provisions relating to a particular context in which a death has occurred. Section 17(4) of the Gas Act 1965 provides that "[w]here, in the case of an event in Scotland that causes the death of a person, the minister directs an inquiry to be held in public under this section, no inquiry with regard to that death shall, unless the Lord Advocate otherwise directs, be held in pursuance of [the Act]". Section 14 of the Health and Safety at Work Etc Act 1974 is to a similar effect. Subsection (2)(b) provides that the HSE, with the consent of the Secretary of State, may direct an inquiry to be held into any accident, occurrence, situation or other matter. It should be noted that this may relate to health and safety not only in Scotland but also offshore, by virtue of section 1 of the Offshore Safety Act 1992. Subsection (7) provides that where an inquiry is directed to be held by virtue of subsection (2)(b) into any matter which causes the death of any person, no inquiry with regard to that death shall, unless the Lord Advocate otherwise directs, be held in pursuance of the 1976 Act. I understand that there are no recent examples of public inquiries in Scotland under the 1965 or the 1974 Act.

2.35 To a different effect is section 271 of the Merchant Shipping Act 1995 which relates to inquiries into the deaths of crew members and others. Subsection (6) states that no inquiry is to be held under the section where an FAI is to be held under the 1976 Act.

2.36 The 2005 Act, on the other hand, makes general provision for the holding of a public inquiry. That is where it appears to the relevant minister that "(a) particular events have caused, or are capable of causing, public concern, or (b) there is public concern that particular events may have occurred". ⁴¹ The Scottish Ministers may cause such an inquiry to be held, but this is subject to the important qualification that its terms of reference "must not require it to determine any fact or to make any recommendation that is not wholly or primarily concerned with a Scottish matter", which means "a matter that relates to Scotland and is not a reserved matter (within the meaning of the Scotland Act 1998)". ⁴² Where an inquiry would involve a reserved matter it is open to Scottish Ministers along with a United Kingdom minister to cause a joint inquiry to be held, ⁴³ as was the case with the public inquiry into the explosion on 11 May 2004 at a plastics factory operated by ICL Plastics Ltd and ICL Tech Ltd in Glasgow.

2.37 An inquiry under the 2005 Act may include an inquiry into the circumstances of fatal accidents and deaths. ⁴⁴ An example is the inquiry headed by Lord Penrose, announced on 23 April 2008, into hepatitis C/ HIV acquired infection from NHS treatment in Scotland with blood and blood products. However, unlike the statutory inquiries mentioned in paragraph 2.34 above, in the case of public inquiries under the 2005 Act, there is no statutory provision for dispensing with an FAI where it is otherwise mandatory.

Article 2 of the European Convention for the Protection of Human Rights and Freedoms

2.38 Section 1 of the Human Rights Act 1998 incorporated into the law in the United Kingdom a number of the rights and fundamental freedoms set out in the European Convention for the Protection of Human Rights and Freedoms. Article 2(1) of the ECHR states:

"Everyone's right to life shall be protected by law. No-one shall be deprived of his life intentionally".

2.39 In R (Middleton) v. West Somerset Coroner and Another, ⁴⁵ Lord Bingham of Cornhill stated:

"The European Court of Human Rights has repeatedly interpreted article 2… as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life." ⁴⁶

2.40 The European Court of Human Rights has also interpreted article 2 as imposing on member states a procedural obligation. Its essential purpose is to secure the effective implementation of the domestic laws which protect the right to life, and, in cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. ⁴⁷

2.41 What is required to satisfy the procedural obligation depends on the particular case. Where it is claimed that the state was involved in the death of the deceased through the actions or systematic failure of its agents or bodies, the state may be obliged to set up an independent and public investigation. This may arise, for example, where the deceased died in prison or otherwise in the custody of the state.

2.42 For other cases, the state has to have a system for the practical and effective investigation of the circumstances and the determination of responsibility. An example of such a case is a death allegedly caused by medical negligence in an NHS hospital.

2.43 In some cases it has been held that relatives of the deceased may require to be represented and participate in the investigation to the extent necessary to safeguard their legitimate interests. ⁴⁸

2.44 As regards Scotland, Lord Hope of Craighead pointed out ⁴⁹ that the ECtHR had made it clear that an FAI was a means of carrying out an investigation which would satisfy article 2. The same should apply to a public inquiry into the circumstances in which a death occurred.

2.45 The practical difference which article 2 makes is that it may require an FAI or a public inquiry where neither would otherwise have been held. This therefore has implications for the exercise by the Lord Advocate of his or her discretion as to the holding of an FAI. ⁵⁰