Accessibility |

COPFS

Fatal Accident Inquiries (13-03-14)

Freedom of Information: Fatal Accident Inquiries - 13 March 2014

Thank you for your e-mail of 13 March 2014 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:

1) "Firstly, how many FAIs 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?"

2) "Secondly, can you tell us what the cases are, date of incident, name(s) of victims, and where the incident took place?" and

3) "Thirdly, can I find out how many were on the books on or around the same date in 2004 and 2013. And... with regard to the 2004 and 2013 data, when were the original incidents in all the cases?"


Before considering your requests it may be of assistance to explain COPFS' role in the investigation of all sudden, suspicious and unexplained death in Scotland.

As you may be aware, 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 SFIU deals with approximately 13,500 deaths per annum. The Unit was launched by the 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.

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 for the district most closely connected with the circumstances of the death 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 (i) 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 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.

Where it appears to the Lord Advocate to be expedient that an Inquiry should be held into the circumstances of such deaths, he has discretion to instruct such an Inquiry. 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 an FAI should be held.

In December 2013 the Lord Advocate issued guidance to all Procurators Fiscal working within the Scottish Fatalities Unit which states that petition should be made to the relevant court within two months of receiving Crown Counsel's instruction to hold a Fatal Accident Inquiry.

Prior to and following the granting of the Petition by the Sheriff, SFIU works closely with colleagues from the Scottish Court Service to ensure that the most effective use possible is made of court time when FAIs are held and an FAI Management Group was established between us for this purpose.

The 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.

SFIU works to ensure that deaths investigations are carried out as quickly and efficiently as possible however, there are a number of factors that contribute to the time taken for an FAI to commence. One such factor is that in some cases there can be a delay between the date of death and it being reported to COPFS. This can arise because the circumstances do not at first give rise to concern to relatives of the deceased but they later report concerns.

Further delays can also occur while COPFS await the outcome of investigations being carried out by regulatory authorities in to matters in respect of which, by virtue of statute, they are the initial investigators such as the Health and Safety Executive and the Air Accident Investigation Branch.

Another potential source of delay is that, once the Procurator Fiscal has lodged a petition with the court for an FAI to be held, it can often take several months for the FAI to commence due to the availability of suitable court time.

Where criminal proceedings are deemed appropriate at the outset, that is a further reason why an FAI will take place some time after the death. An FAI cannot take place until the criminal proceedings which have commenced have concluded. Even when criminal proceedings do not ultimately take place, it is often necessary for significant enquiries to be carried out to determine whether criminal proceedings are appropriate, prior to considering whether or not an FAI should be held.

Finally, it can take time for an FAI to be held simply due to the need to ensure that the particular death is fully and effectively investigated.

An investigation may require additional enquires to be carried out by expert witnesses and careful consideration of a subsequent report prepared by them. Due to the often complex nature of such investigations it is not possible to easily estimate in advance how long it will take for such experts to complete their investigations. Many are necessarily lengthy. Further delays can also arise when the findings of an expert witness raises further issues that require additional investigation or instruction of further expert investigations and reports.

SFIU engage as soon as possible with bereaved nearest relatives and those acting on their behalf in order to identify any concerns which the family members may have regarding the circumstances surrounding the death so that, where appropriate, these can be thoroughly considered as part of the investigation into the circumstances of the death.

SFIU ensure that the families of the deceased continue to be kept involved throughout the process of investigating the death as further information emerges in the course of the investigation process. In some instances it can take a considerable time for there to be certainty that no further issues or concerns are going to be raised by concerned relatives that require further investigation. This ensures that all matters that an FAI may require to address have been identified and thoroughly investigated, prior to a final decision being reached by Crown Counsel.

Before confirming whether or not they would wish an FAI to take place, families and their representatives, and other parties who may be involved if an FAI is instructed, need to be given time to digest and consider the information contained in expert reports which SFIU have obtained. They may wish to consult their own experts, leading in turn to further questions being put to the original expert by SFIU before all available information is ready for consideration by Crown Counsel.

I have considered your request for information below.

1) At the time of receiving your request there were 25 cases where an FAI had been petitioned for and granted but had not yet commenced. In relation to some of these cases, criminal proceedings had been required and, as such, an FAI could not commence until the criminal proceedings had concluded. In other cases the Health and Safety Executive (HSE) were the initial investigators and Crown Counsel could not consider whether to hold an FAI until the HSE investigations had concluded. These cases have been highlighted for your convenience.

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.

I have not provided details regarding the name of the deceased, 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 March 2004 and March 2013 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 Freedom of Information (Scotland) Act 2002 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 Court Service (SCS) to enquire whether they hold such information.

Annex A

Record No

Date of Death

Mandatory/ Discretionary

Federation

  1. 1

Death reported to police in 2010

Discretionary

West



22/05/2007

Mandatory

East

3

05/06/2011

Mandatory

East

  1. 3

21/06/2011

Mandatory

West

  1. 4

24/06/2011

Discretionary

West

6

20/07/2011

Mandatory

West

  1. 5

22/07/2011

Mandatory

West

  1. 6

21/09/2011

Discretionary

North

  1. 7

30/10/2011

Mandatory

North

10

17/11/2011

Mandatory

West

11

18/11/2011

Discretionary

North

12

24/11/2011

Mandatory

North

13

01/02/2012

Mandatory

West

14

20/02/2012

Mandatory

North

15

02/03/2012

Mandatory

West

  1. 8

03/05/2012

Mandatory

West

17

20/05/2012

Mandatory

East

18

17/06/2012

Mandatory

West

19

26/06/2012

Mandatory

East

20

25/12/2012

Mandatory

East

21

28/03/2013

Mandatory

North

22

04/05/2013

Mandatory

East

23

22/05/2013

Mandatory

West

  1. 9

27/06/2013

Mandatory

North

25

21/09/2013

Mandatory

West