Fatal Accident Inquiries (R013053)
Thank you for your e-mail of 10 May 2016 to the Crown Office and Procurator Fiscal Service (COPFS), in which you requested the following information in terms of the Freedom of Information (Scotland) Act 2002:
“May I ask how many Fatal Accident Inquiries are currently on your books (as of today). In other words, FAIs that you have agreed to go ahead with but are still either awaiting a date, or have a future date
Secondly, can you tell us what the cases are, date of incident, name(s) of victims, and where the incident took place.
Thirdly can I find out how many were on the books on or around the same date in 2015.
And fourthly, with regard to the 2015 data what the cases are, date of incident, name(s) of victims, and where the incident took place.
Finally in all the outstanding cases could you highlight in each instance the reasons that FAI has not yet commenced.”
I am aware that you made a similar request in 2014 under reference R00738 but I feel it is important to reiterate the explaination of COPFS’ role in the investigation of all sudden, suspicious and unexplained death in Scotland for ease of reference.
As you were previously advised, the investigation of deaths reported to the Crown Office and Procurator Fiscal Service is currently overseen by our specialist Scottish Fatalities Investigation Unit (SFIU). The Unit was launched by the then Lord Advocate in March 2011 to ensure that all death reports are prepared according to the highest possible standards; that policy and practice in the investigation of deaths is applied consistently; and that appropriate and timely decisions are taken throughout the life of such cases.
SFIU engage as soon as possible with bereaved nearest relatives and those acting on their behalf in order to identify any concerns which they have so that, where appropriate, these can be thoroughly considered as part of the investigation into the circumstances of the death.
SFIU works to ensure that deaths investigations are carried out as quickly and efficiently as possible however, as you will appreciate, some of the deaths which are reported to COPFS are complex and require significant investigation and/or the consideration of a number of medical or technical experts including lengthy expert investigations by regulatory authorities before Crown Counsel will be in a position to make a final decision as to proceedings and that in turn affects the time that passes before the Court can be petitioned to hold an FAI. In particular, in December 2013 the Lord Advocate issued guidance to all Procurators Fiscal working within the Scottish Fatalities Unit to advise that an application to the Court to hold a Fatal Accident Inquiry (the petition) should be made by the Procurator Fiscal to the relevant court within two months of receiving Crown Counsel’s to hold a discretionary Fatal Accident Inquiry.
Where criminal proceedings are contemplated these will ordinarily take place prior to any Fatal Accident Inquiry. In such cases, this may also result in the FAI taking place some time after the death.
In terms of section 1(1) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (the 1976 Act), where a death has occurred in defined mandatory categories, or where it appears to the Lord Advocate to be expedient in the public interest in the case of a sudden, suspicious or unexplained death to hold an inquiry under the 1976 Act, the Procurator Fiscal will apply to the sheriff for the holding of an inquiry into the circumstances.
The mandatory categories for Fatal Accident Inquiries are those deaths that take place in terms of Section 1(1)(a) of the 1976 Act (i) following an an accident in the course of the deceased person’s employment or occupation, and (ii) where the person who died was at the time of their death in legal custody. If, however, criminal proceedings have been concluded in respect of any such death, or in respect of 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, then an inquiry under the 1976 Act need not be held.
As you will see from the information provided, some of the cases in which an FAI is still to be held are not cases in which an FAI requires to be held in terms of Section 1(1)(a) of the the 1976 Act. Such cases arise where the death was sudden, suspicious, or unexplained or has occurred in circumstances such as to give rise to serious public concern and where it appears to the Lord Advocate to be expedient that an Inquiry should be held into the circumstances, he has discretion to instruct such an Inquiry (Section 1(1)(b) of the 1976 Act). In these cases, the circumstances of the death are fully investigated by the SFIU and reported to experienced Crown Counsel. Crown Counsel are the senior, independent lawyers who take decisions on behalf of the Lord Advocate in this most serious cases. Crown Counsel will then provide an instruction, on behalf of the Lord Advocate, on whether a discretionaty FAI should be held.
Prior to and following the granting of the petition by the Sheriff, SFIU works closely with colleagues from the Scottish Courts and Tribunal Service to ensure that the most effective use possible is made of court time when FAIs are held.
Our specialist staff based in the SFIU have expertise in dealing with deaths investigations and FAI preparation and presentation which ensures that all lines of inquiry are fully considered at the earliest possible stage and pursued.
During the preparation stage they identify evidence which can be agreed in advance of inquiries which can avoid the need for witnesses to give evidence which, of course, ensures that the best use is made of court time. In addition, although, unlike in criminal proceedings, there is no statutory requirement to disclose evidence, the SFIU is proactive about disclosing evidence to the legal representatives of interested parties where it is known that an FAI will take place. These measures all reduce the risk of adjournments to FAIs.
I have considered your request for information and can respond as follows:
1) At the time of receiving your request there were 19 cases where the Procurator Fiscal had made an application to the Court to hold a fatal accident inquiry, but the FAI had not yet commenced.
2) Some of the information that you have requested, namely the date and location of each death, as well as whether the FAI is discretionary or mandatory, has been provided at Annex A. Where the name of the deceased is already in the public domain because the FAI has already been advertised this has also been included.
I have not provided details regarding the circumstances of the death or the exact location of the death as I consider that this information is exempt from release. Firstly I consider that this information is exempt in terms of sections 34(2)(a) and (b)(i) of FOISA because it is held by the Crown Office and Procurator Fiscal Service for the purpose of an inquiry instituted under the 1976 Act but not for the time being concluded and/or it is held by COPFS for the purpose of any other investigation being carried out by virtue of a duty to ascertain the cause of death of any person. In addition, I consider the information to be exempt from release in terms of section 39(1) of FOISA on the basis that its disclosure would, or would be likely to, endanger the mental health of an individual.
These exemptions are not absolute so I have required to consider the public interest in releasing the information held, notwithstanding the exemptions.
One of the primary purposes of holding an FAI is to allow the court to make a final determination on the time, date, location and circumstances of an individual’s death. I consider that to release such details to the public, prior to a final determination of the court being made, would significantly undermine the purpose of holding such an inquiry and would adversely affect the confidence that the deceased’s nearest relatives and, consequently, the public would have in the role of COPFS and the courts in investigating all sudden, suspicious and unexplained deaths in Scotland. I also consider that the release of such personal, sensitive and distressing information, as well as releasing the names of the deceased individuals, would be likely to have a negative impact on the mental well-being of relatives of deceased persons who may not wish such information to be proactively published by COPFS.
I am, therefore, satisfied that the public interest lies in maintaining the aforementioned exemptions.
3) It may assist to explain that COPFS uses a live operational case management system, specifically designed to receive criminal and death reports from the police and other specialist reporting agencies and to manage the cases for prosecution purposes. The information held on the system is structured for these operational needs, rather than for statistical reporting or research purposes.
The number of FAIs where petitions were granted by the court but had not yet commenced by 10 May 2015 is not information that is recorded on the COPFS electronic case management system. While SFIU does hold a live database of all outstanding FAIs this cannot be searched or considered retrospectively. To provide the information that you have requested we would have to conduct a manual search of all deaths reported to COPFS prior to each of the dates specified that, at that stage, had not been closed off. Section 1(1) of FOISA does not oblige a Scottish public authority to comply with a request for information if the authority estimates that the cost of complying with the request exceeds a specified financial threshold, which is currently £600. We estimate that due to the volume of cases, checking all such cases to comply with this request would exceed the £600 threshold.
You may wish to contact the Scottish Courts and Tribunal Service (SCTS) to enquire whether they hold such information.
4) You have asked to know in each instance the reason why an FAI has not yet commenced. As explained above SFIU works to ensure that deaths investigations are carried out as quickly and efficiently as possible however, as you will appreciate, some of the deaths which are reported to COPFS are complex and require significant investigation and/or the consideration of a number of medical or technical experts including lengthy expert investigations by regulatory authorities before Crown Counsel will be in a position to make a final decision as to proceedings and that in turn affects the time that passes before the Court can be petitioned to hold an FAI. In five of the cases indicated on Annex A the Health and Safety Executive carried out an investigation into the death, and in four other cases on the list the death was reported to Crown Counsel for instructions in relation to the holding of criminal proceedings.