Fatal Accident Inquiries (FAIs)
The provisions of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 apply to any fatal accident occurring in Scotland. When investigating fatal accidents you should, of course, ensure that relatives of the deceased are advised and kept informed of HSE's involvement in the investigation, and are sent a copy of the 'Information for bereaved families' (Scotland) (see Contact with relatives of people killed through work activities). The Act also applies to any accident from which death has resulted which has occurred (a) in connection with the exploration of the seabed or subsoil or the exploitation of their natural resources; and (b) in that area, or any part of that area, in respect of which it is provided by Order in Council under the Continental Shelf Act 1964 s3(2) that questions arising out of acts or omissions taking place therein shall be determined in accordance with the law in force in Scotland.
The Procurator Fiscal is required to hold an inquiry if it appears that the death has resulted from an accident occurring in Scotland while the person who has died, being an employee, was in the course of his employment or, being an employer or self-employed person, was engaged in his occupation as such. The Procurator Fiscal who must conduct the mandatory inquiry is the Fiscal whose district appears to be most closely connected with the circumstances of the death. An inquiry does not need to be, but can be, held in cases where criminal proceedings have been concluded against any person in respect of the death or any accident from which the death resulted and the Lord Advocate is satisfied that the circumstances of the death have been sufficiently established in the course of such proceedings. Similarly, inquiries need not be held under the Act where an inquiry has been held under HSW Act s14 unless the Lord Advocate otherwise directs.
There are also discretionary powers given under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 to the Lord Advocate when he considers it to be expedient in the public interest to hold an inquiry into the circumstances of a 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. An inquiry could therefore be held under these discretionary powers in the circumstances of a fatal accident to a member of the public arising out of work activities which caused his death.
Reporting to the Procurator Fiscal
Guidance on liaison between the Procurator Fiscal, police and HSE when a work related death occurs is in the Scotland Work Related Deaths Protocol and Work-related deaths: liaison with police, etc, including consideration of individual and corporate manslaughter/homicide. Where HSE (or the local authority) lead an investigation the guidance below should be followed.
You should as soon as possible inform the Fiscal that HSE are conducting an investigation. You should give an indication of the likely time scale for investigation and, if possible, agree time scale and means of future communications. It may be appropriate at an agreed stage of the investigation to provide the Fiscal with a written summary, or interim report, where you should inform the Fiscal of future lines of inquiry.
Where you consider prosecution appropriate a full prosecution report should be submitted. Where prosecution is not recommended a report should be sent to the Fiscal including your investigation findings and recommendations, with reasons. In particular, if breaches of the law have been identified but prosecution is not recommended, this should be fully explained. For simple cases the report may be in the form of a letter, normally a report in the format of the Inspectors Report should be used.
The Fiscal will clearly understand that the reports supplied by you are confidential and are not for production in the court or for publication but are supplied for his use in preparing for the inquiry. In some cases however some parts of your report and in particular those containing factual matters may be produced by the Fiscal in Court especially if he is minded to call you to give evidence at the FAI.
Fatal accidents may be reported to the Fiscal in circumstances where it appears to him that HSW Act applies, but where investigation has not been undertaken by any enforcing authority. HSC/E has a policy that all work related fatal accidents be investigated. So, if such an accident is drawn to our attention then an investigation should be commenced. However, investigation should only be carried out by the appropriate enforcing authority. Investigation should not be carried out simply because another authority has declined to investigate and the Fiscal has asked HSE instead.
HSE investigates for the purpose of enforcing the relevant statutory provisions and our investigation should be proportionate to achieving that end. Should the Fiscal direct or request investigation that appears to go beyond our remit, or purpose, then you should explain our role to the Fiscal and suggest that he/she direct the police to investigate the particular issue in question. The Fiscal has no authority to direct HSE though we should always seek to cooperate with any reasonable request.
Procedure at FAIs
A Fatal Accident Inquiry is advertised in the press a minimum of 21 days before the date on which it will be held in the Sheriff Court.
The Fiscal will conduct the inquiry and examine the witnesses called by him but under the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 s4(2) it is competent for you, as investigating inspector to appear at, take part in and adduce evidence at the inquiry. It may be convenient in some cases to arrange with the Fiscal that you should deal with technical points and those relating to the observance of HSW Act and other relevant statutory provisions although such circumstances will normally be dealt with by the Fiscal calling you as one of his witnesses. The representatives of the deceased, the employer of the deceased and any other person who the Sheriff is satisfied has an interest in the inquiry may also appear and give evidence at the inquiry. In any case where it is thought that there may be criticism at the FAI of the HSE supervision of the undertaking at which the fatality occurred consideration should be given as to whether HSE should have separate legal representation.
In accordance with the Fatal Accidents and Sudden Deaths Inquiry Procedure ( Scotland) Rules 1977, intimation of the holding of an inquiry under the Act must be sent to HSC. In practice, notification will normally be sent to an HSE office and the notice will then be routed to the appropriate inspector concerned. It is expected that normally an inspector will attend at every FAI so notified.
Where expert evidence is necessary an inspector should be prepared to give expert evidence and will be examined as such by the Fiscal. An inspector will also be called upon to give evidence when he can speak to material facts which cannot be established by other evidence. It is not desirable however, that an inspector should be called as a witness in all cases.
If you are called as a witness at the inquiry, the Fiscal will not at such inquiry ask you when giving evidence to attach blame directly to any person or persons but this would not prevent the Fiscal inquiring about the question as to whether any particular requirement of the law was duly observed and who was responsible for observing that particular requirement. It is also likely that you will be asked questions by other interested parties who are appearing at the inquiry.
It should be borne in mind that the rules of evidence applying to FAIs are the rules for civil cases, such that all hearsay evidence is admissible, as well as all documentary evidence. This is often very useful in cases involving accidents at work for example, as inspectors who arrived promptly at the locus can give valuable evidence regarding what they heard or were told, not normally admissible in criminal proceedings.
The reports furnished by you will be accepted by the Fiscal in lieu of precognition and citation to attend for precognition will be dispensed with unless ordered by the Lord Advocate. If you are contacted for precognition by other agents, the approach should be co-operative; however, if you are in any doubt, you should consult your line manager.
It is not the function of the Sheriff at a FAI to decide whether anyone was at fault or whether a breach of the law has been committed. His function in terms of s6 of the 1976 Act is to determine:
- where and when 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 other facts which are relevant to the circumstances of the death.
Not infrequently the Sheriff will make a merely "formal" determination dealing only with heads (a) and (b) which are the only findings which he must make. In such cases the determination is sometimes given at the conclusion of the Inquiry. In other cases the Sheriff will reserve his determination and issue it in writing to all interested parties, including HSE, some time later.
The determination of the Sheriff is not admissible in evidence or able to be founded on in any judicial proceedings of whatever nature arising out of the death or out of any accident from which the death resulted. So the determination cannot therefore be relied on by the relatives of the deceased in an action for damages in consequence of the death1. The evidence given at the Inquiry is however very useful to parties in such actions.
Procedure following FAIs
After the FAI, the Fiscal will submit his report to Crown Counsel with a copy of any report from HSE. In cases where Crown Counsel is not satisfied with the reason given for not taking proceedings, it is open to him to instruct the Fiscal to prosecute. For this reason it is important that reasons for not submitting a prosecution report are made very clear in letters to the Fiscal.
Following recent case law2 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.
The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 s6(4) provides that HSC may be provided with a copy of the application made under s.1 of the Act; the transcript of the evidence; any report or documentary production used in the inquiry, and the determination of the Sheriff without payment of any fee. A copy of the transcript of the evidence should normally be requested only when the evidence at the inquiry reveals facts not previously known which could cause HSE to alter its opinion or proposals for action in any case.
1. 1976 Act Sec 6(3)
2. Smith v Lord Advocate 1994 SLT 379; Lothian Regional Council v Lord Advocate 1993 SLT 1132.