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Fatal Accident Inquires (31-03-14)

Freedom of information: Fatal Accident Inquires - 31 March 14

Thank you for your e-mail of 31 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. “Does the Crown Office have a target for the time in which a Fatal Accident Inquiry should begin, from the time of death?”

2. “What is the time between the date of death and the beginning of the inquiry for all the discretionary FAIs held in the past year?”

3. “What is the average time, in the past 3 years, between the date of death and the beginning of a discretionary FAI?”

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. 

In other cases, 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. 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 to advise that a 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.

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 below.

1. COPFS does not have a target for the time within which an FAI should commence from the date of death. The reason for this is that in many deaths cases there are parts of the overall investigation required into a person’s death which do not sit with COPFS alone but involve others, such as regulatory authorities which we have no legal authority to direct. Such factors are further outlined at point 3 below. 

2. The information that you have requested is provided at Annex A

3. The average time taken between the date of death and the commencement of a discretionary FAI between 31 March 2011 and 31 March 2014 was 1,421 days.

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. At least one case for which an FAI has been held in the past three years was not reported to COPFS until several years after the date of death. 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.

Annex A

Record No.

Date of Death

Date Discretionary FAI Commenced