This is the process for the public examination of the circumstances of the death, in the public interest. This article will examine the following areas related to FAIs:
- The FAI process in Scotland,
- Changes made to the process in 2016,
- Criticism related to delays in holding FAIs, and
- Potential future developments.
The FAI process in Scotland
FAIs are an inquisitorial process, which seek to establish the facts surrounding the death. The purpose of an FAI is not to apportion blame for the death. They are mandatory where the death was the result of a work-related accident, or where the death was in custody. Discretionary FAIs can be held where the death was sudden, suspicious, unexplained or occurred in circumstances which give rise to serious public concern. COPFS will make a recommendation if they consider a discretionary FAI ought to be held. Ultimately, that decision is made by the Lord Advocate.
The procedures governing FAIs are set out in the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016, and related Regulations. The same rules apply to FAIs investigating a single death as to those investigating a major incident where a number of deaths have occurred. The process is largely designed to enable the Sheriff, who presides over the FAI, to manage it efficiently and with flexibility.
The majority of evidence at the hearing is normally lead by the Procurator Fiscal, who presents the Inquiry for the Crown. Other parties involved may include the deceased's family, employer (if the death occurred at work), and any others with a potential interest in the circumstances of the death.
After conclusion of the hearing, the Sheriff will issue a Determination. The findings in the Determination will include the cause of the death, or accident, and reasonable precautions which could have been taken. They may also include recommendations of steps to be taken to avoid deaths in the future. Participants to the FAI may need to respond to these.
Importantly, the process is a fact-finding one, not a fault-finding one. Although the Determination may include criticism of parties from which a basis for alleging fault may be inferred, it cannot be founded upon in any judicial proceedings of any nature - either civil or criminal. However witnesses are not required to answer questions which tend to show that they may be guilty of a crime.
Changes made to the process in 2016
The 2016 Act brought major changes to the FAI process in Scotland. It was designed to modernise the FAI system, broadening the scope of inquiries, increasing the Sheriff's role and allowing greater flexibility in the process, and improving accountability by requiring organisations to respond to recommendations made by Sheriffs.
It has largely been effective. While there is much public criticism of FAIs, it tends to be focused on issues that arise prior to the court process, such as delays in the decision itself to hold a discretionary FAI.
Criticism related to delays in holding FAIs
Critics of the FAI system often say that it takes too long for FAIs to begin, and in the case of discretionary FAIs, too long for the decision to be made that one will be held. Last year the Scottish Government pledged an extra £5 million funding for the COPFS, some of which was to be allocated to fund improvements to the FAI system. In September 2019, writing in the Times, the Lord Advocate pledged to speed up the process.
So, why can it take such a long time between the death and the start of the FAI process? There is recognition that the COPFS are under-resourced to deal with the number of investigations they are now faced with. Often, investigations into the circumstances of an accident are complex. They may involve multiple agencies: Police Scotland; the Health & Safety Executive; and the Air Accident Investigation Branch to name a few. Investigations carried out by those organisations are often complex, involving the cooperation of many parties and collation and examination of factual and expert evidence. Thorough and careful investigations take time. Delay can also occur when consideration is being made to whether or not criminal proceedings are going to be raised. It would be normal for criminal proceedings to take place prior to any FAI.
One example of a discretionary FAI which was announced some considerable time after the accident itself is the Sumburgh helicopter crash. The FAI was announced in June 2019: the helicopter crash, which claimed four lives, occurred back in 2013. At the time of writing, although an FAI has been announced, the dates for it have not yet been fixed. This length of delay is exceptional, rather than being the norm. Six years is a long time for the families of the victims to have waited to find out whether or not an FAI will be held. Their wait is not over: it may be some time yet before the FAI commences. When announcing the decision to hold an FAI, the Crown Office set out that the investigation had been complex and challenging.
The 2016 Act does not provide a solution to the potential delays between a death and an FAI being announced. As far back as 2009, the Cullen Review recommended that there be a requirement to hold a hearing within three months of a death for mandatory FAIs. That recommendation was not included within the 2016 Act.
Potential future developments
The FAI process has been subject to regular reviews. The Scottish Government carried out a review prior to the 2016 Act provisions being brought into force. It considered the causes of any delays in the FAI process, and made recommendations to improve efficiencies and effectiveness. A follow up review, in August 2019, made new recommendations dealing with proposed improvements to family liaison and prioritisation of FAIs relating to the deaths of young persons in legal custody. These will be reviewed in a follow up report next year.
Legal aid also remains is a significant issue. There has been much publicity around the availability of funding for families who wish to participate in FAIs. The Scottish Legal Aid Board (SLAB) has discretion on whether to grant legal aid, and whether an individual's financial circumstances make it appropriate that they contribute towards it. SLAB has provided funding to some families in some high profile cases. However concerns over the potential lack of funding, and over the families requiring to make personal contributions towards the funding, have resulted in questions being raised in the press and at the Scottish Parliament. The Scottish Government cannot intervene in decisions made by SLAB. However, the Minister for Community Safety responded to concerns about the process by advising of the set up an independent strategic review of legal aid in Scotland.
There is a clear, and very real, public interest in reducing the number of fatal accidents - at work, in custody, and among the general public. The FAI process is designed to contribute to this by providing a forum at which accidents can be effectively investigated and measures to prevent future accidents identified. Overall the new system appears to be working well in practice but it is early days. Reviews which evaluate its effectiveness and address concerns, such as the availability of legal aid, are helpful.
 2016 Act, Section 4(1)
 2016 Act, Section 26(6)
 Fatal Accident Inquiries: review, published 18 August 2016 https://www.gov.scot/publications/thematic-review-fatal-accident-inquiries/pages/1/
 Fatal Accident Inquiries: follow up review, published 7 August 2019, https://www.gov.scot/publications/follow-up-review-fatal-accident-inquiries/pages/1/