The purpose of this note is to give a brief introduction to Fatal Accident Inquiries for those who are not familiar with them. It is not intended to be exhaustive. The intention is to explain why an FAI is held, what it is intended to achieve and where it fits within the overall picture of pursuing a civil claim arising out of a fatal accident.
The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 came into force on 1 March 1977 [1]. Both the preceding 1895 Act and the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 (c 35) were repealed by the 1976 Act [2].
Under the new Act [3], the Lord Advocate made the Fatal Accidents and Sudden
Deaths Inquiry Procedure (Scotland) Rules 1977, which came into force, with
the Act, on 1 March 1977 [4].
The 1976 Act provides for the holding of two types of inquiry, mandatory and
discretionary. Provision is made for a mandatory inquiry in the case of a death
(1) apparently resulting from an accident in Scotland sustained at work [5],
or (2) occurring during the time in which the person who died was in legal
custody [6].
The 1976 Act extends the provisions in the first of these categories to include not only an employee who died in the course of his employment but also an employer or self-employed person who was engaged in his occupation as such [7].
The mandatory provisions apply to deaths occurring ‘in Scotland’ after the commencement of the Act on 1 March.
* Source: The Laws of Scotland Stair Memorial Encyclopaedia
[1] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c 14), s 10(5); Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 Commencement Order 1977, SI 1977/190. See generally I H B Carmichael Sudden Deaths and Fatal Accident Inquiries (1986).
[2] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s 8(2), Sch 2.
[3] FASDI(S)A 1976, s 7.
[4] Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, SI 1977/191, r 1.
[5] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c 14), s 1(1)(a)(i).
[6] FASDI(S)A 1976, s 1(1)(a)(ii).
[7] FASDI(S)A 1976, s 1(1)(a)(i).
Waiver of mandatory inquiry
The mandatory provisions may be waived where the Lord Advocate is satisfied
that the circumstances of the death have been sufficiently established in
the course of criminal proceedings against any person in respect of the death
or any accident from which the death resulted [1]. As any criminal proceedings
are normally concluded before the question of a public inquiry is determined,
this proviso could prove beneficial in obviating any need to have the same
evidence adduced twice and in lessening the risk of adding to the distress
of bereaved families. While the Fatal Accidents and Sudden Deaths Inquiry
(Scotland) Act 1976 does not state how the circumstances are to be brought
to the attention of the Lord Advocate to consider such a waiver, the procurator
fiscal would appear to be the most appropriate agency, bearing in mind his
duties both as public prosecutor and as the person to whom investigation
of such deaths is entrusted. This would include a Road Traffic Prosecution.
Discretionary inquiries[1] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c 14), s 1(2).
[1] See the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c 14), s 1(1)(a), .
[2] See the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 (c 35), s 3 (repealed),
[3] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s 1(1)(b),(2).
[4] See above.
The holding of the inquiry
The inquiry must be held in public [1] as soon after the making of the necessary
order by the sheriff as is reasonably practicable in such courthouse or other
premises as appear to him to be appropriate, having regard to the apparent
circumstances of the death [2]. This restates the terms of earlier legislation
[3], and allows the holding of inquiries in places such as town halls or
community halls where they appear to be more appropriate to needs.
Previously, proceedings were heard before a jury in the sheriff court [4], however, the jury is no longer necessary. The Sheriff does not have to conduct the inquiry as nearly as possible in accordance with the ordinary procedure in a trial. Instead, the rules of evidence, procedure and powers of the sheriff to deal with contempt of court and to enforce the attendance of witnesses are to be as nearly as possible those applicable in an ordinary civil cause brought before a sheriff sitting alone [5]. Nevertheless, it is still the specific duty of the procurator fiscal to adduce evidence with regard to the circumstances of the death in question [6]. This is a natural extension of his duty to investigate the circumstances in the first place and to instigate the inquiry.
A provision which is perhaps of more practical importance than at first appears gives the sheriff the power at any time to adjourn the inquiry to a time and place specified by him at the time of the adjournment [7]. This power is of importance where an essential witness may be working abroad and not available at the time when the inquiry is first held.
[1] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c 14), s 4(3), which is expressed to be subject to s 4(4), for which see below.
[2] FASDI(S)A 1976, s 3(1)(a).
[3] See the Fatal Accidents Inquiry (Scotland) Act 1895 (c 36), s 4(1)(repealed), and above.
[4] See FAI(S)A 1895, s 5(4)(repealed), and above.
[5] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s 4(7).
[6] FASDI(S)A 1976, s 4(1).
[7] Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, SI 1977/191, r 9.
Evidence
The sheriff’s order grants warrant to cite witnesses and havers to attend
the inquiry at the instance not only of the procurator fiscal but also of any
person who may be entitled to appear and be heard [1]. In addition to
the procurator fiscal there are other persons who have a right to attend and
adduce relevant evidence. This group includes the spouse or nearest known relative
of the deceased and, in the case of an accident at work [2], any employer
of the deceased, a health and safety inspector and any other persons who the
sheriff is satisfied have an interest in the inquiry [3]. In the great
majority of cases the evidence adduced by the procurator fiscal is sufficient
for the purposes of all of the interested parties, and it is seldom that such
parties call witnesses in addition to those called by the procurator fiscal.
On the other hand there are cases, especially where there is a possibility
of criticism being levelled or blame being apportioned, where representatives
of interested parties feel that they have to attempt to explore certain avenues
more thoroughly, if possible, in their clients’ interest. This occasionally
lays the system open to the criticism that it is not being used purely for
the prime purpose of establishing the circumstances of a death, but also for
establishing evidence on which a civil claim might be based or defended, although,
as in the Fatal Accidents Inquiry (Scotland) Act 1895 [4], there is a
provision in the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976
that the determination of the sheriff is not to be admissible in evidence or
founded on in any judicial proceedings of whatever nature arising out of the
death or out of the accident from which the death resulted [5].
As in 1895 the legislators have recognised a possible area of conflict. In
getting to the truth of the cause of a death, it may be necessary to examine
witnesses against whom blame may be levelled. Following the 1895 Act [6],
the 1976 Act provides that the examination of a witness or haver is not to
be a bar to criminal proceedings being taken against him [7]. Thus the
driver of a car involved in a fatal road accident may be called to give evidence
at an inquiry under the 1976 Act and may also be prosecuted under the road
traffic legislation. To safeguard his interests to some extent, the Act also
provides that no witness is to be compellable to answer any question tending
to show that he is guilty of any crime or offence [8], a restatement of
a well-established rule of law in Scotland.
On an application by the procurator fiscal or any other person entitled to
appear at the inquiry or at the instance of the sheriff himself the sheriff
may grant warrant to officers of law to take possession of any production which
the procurator fiscal or any other person so entitled wishes to have produced
at the inquiry and to hold it in safe custody pending the inquiry, subject
to inspection by any persons interested [9]. On such application the sheriff
may inspect or grant warrant for any person to inspect any land, premises or
other thing the inspection of which the sheriff considers desirable for the
purposes of the inquiry [10].
The procurator fiscal may appear at the inquiry on his own behalf or by an
assistant or depute procurator fiscal or by Crown counsel [11]; and any
person entitled to appear at the inquiry may appear on his own behalf or be
represented by an advocate, solicitor or, with leave of the sheriff, by any
other person [12]. Such other person might be an official of a trade union.
There is an important innovation in relation to written, as opposed to oral,
evidence. Scots law has for some time been reluctant to admit written evidence
of facts, but now a written statement signed by the person making the statement
and sworn or affirmed to be true by that person before a notary public, commissioner
for oaths or justice of the peace or before a commissioner appointed by the
sheriff for that purpose, may be admitted in place of oral evidence provided
that certain requirements are met [13]. These are that (1) all persons
who appear or are represented at the inquiry agree to the admission of such
written evidence, or (2) the sheriff considers that the admission of such written
evidence will not result in unfairness in the conduct of the inquiry to any
person who appears or is represented at the inquiry [14]. In practical
terms this usually relates to the admission of the post mortem report. The
cause of death is obviously an important part of the evidence at an inquiry
but usually it is not a controversial part of the evidence. Such a statement,
on being admitted in evidence, is to be read aloud at the inquiry, and where
the sheriff directs that the statement or any part of it is not to be read
aloud, he must state his reason for so directing [15]. A certificate that
the statement has been so sworn and affirmed annexed to the statement and signed
by the person making the statement and the person before whom it is sworn or
affirmed is sufficient evidence that it has been so sworn or affirmed [16].
Any document or object referred to as a production and identified in a written
statement is to be treated as if it had been produced and been identified in
court by the maker of the statement [17].
Evidence at the inquiry must be recorded in the same manner as evidence given
in an ordinary civil case in the sheriff court [18]. Where the evidence
is taken down in shorthand it will not be necessary to extend the evidence
unless the sheriff so directs or any person entitled thereto [19] duly
requests a copy of the transcript. Such a person may obtain a copy of the transcript
on application made to the sheriff clerk within a period of three months after
the date of the sheriff’s determination [20].
[1] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c 14), s 3(1)(b). The citation of witnesses and havers and the execution of citation must be in the prescribed form: Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, SI 1977/191, r 8, Schedule, Forms 5, 6.
[2] Ie under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s 1(1)(a)(i): see above.
[3] FASDI(S)A 1976, s 4(2).
[4] See the Fatal Accidents Inquiry (Scotland) Act 1895 (c 36), s 6 (repealed), and above.
[5] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s 6(3).
[6] See the Fatal Accidents Inquiry (Scotland) Act 1895, s 5(4) proviso, and above.
[7] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s 5(1).
[8] FASDI(S)A 1976, s 5(2).
[9] Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, SI 1977/191, r 5.
[10] SI 1977/191, r 6.
[11] SI 1977/191, r 7(1).
[12] SI 1977/191, r 7(2).
[13] SI 1977/191, r 10(1).
[14] SI 1977/191, r 10(1) proviso (a),(b).
[15] SI 1977/191, r 10(3).
[16] SI 1977/191, r 10(2).
[17] SI 1977/191, r 10(4).
[18] SI 1977/191, r 13.
[19] SI 1977/191, r 13 proviso.
[20] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s 6(5)(b); Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, SI 1977/191, r 14. As to fees, see r 15(2).
Assessors
In recognition of the advances in modern technology and the need from time
to time to have expert assessment of facts brought out at fatal accident
inquiries, the sheriff is empowered to summon any person having special knowledge
to act as an assessor at the inquiry [1]. The sheriff’s decision
to use an assessor may be at his own instance or at the request of the procurator
fiscal or of any recognised party to the inquiry [1]. Experience has
shown that this provision has seldom been used. A request to the sheriff
to summon a person to act as an assessor must be made by written motion lodged
with the sheriff clerk not less than seven days before the date of the inquiry [2].
The appointment of an assessor does not affect the admissibility of expert
evidence in the inquiry [3].
[1] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c 14), s 4(6).
[2] Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, SI 1977/191, r 12(1).
[3] SI 1977/191, r 12(2).
The sheriff’s determination
Another significant change from the earlier legislation lies in the sheriff’s
finding, now known as a determination. There has been a noticeable change in
emphasis in the role of the sheriff in investigating the circumstances of deaths.
The role of the jury was often a charade. Sudden unanimous findings abounded
when the requirement to deliberate for at least one hour at the conclusion
of the evidence before a majority verdict could be returned was explained.
Without a jury, sheriffs in Scotland now appear to be taking a more active
part in the inquiries and by doing so are making them more meaningful.
The presiding sheriff is obliged to make a determination at the conclusion
of the evidence and of any submissions made by parties to the inquiry, or as
soon as possible after the conclusion and the submissions [1]. Five areas
have to be covered in the determination, provided of course that the circumstances
have been established to his satisfaction by evidence, which need not necessarily
be corroborated [2]. The first two of the five areas are perhaps self-evident,
covering where and when the death and any accident resulting in the death took
place, and the cause or causes of such death and any accident resulting in
it [3]. The bite comes in the remaining areas. The sheriff must in his
determination set out any reasonable precautions whereby the death or the causative
accident might have been avoided [4]. He must also specify any defects
in a system of working which contributed to the death or associated accident [5].
Finally he must list any other facts, which are relevant to the circumstances
of the death [6].
The sheriff’s determination must be in writing and be signed by him [7].
He must read out the determination in public except in certain circumstances [8].
Thus he is not required to read out the determination where he requires time
to prepare the determination and considers that it is not reasonable to fix
an adjourned sitting for the sole purpose of reading out the determination;
however, in these circumstances the sheriff clerk must send, free of charge,
a copy of the determination to the procurator fiscal and to any person who
appeared or was represented at the inquiry, and must allow any person to inspect
a copy of the determination at the sheriff clerk’s office free of charge
during the period of three months following the date when the determination
was made [9].
While the determination is not admissible in evidence and may not be founded
on in any judicial proceedings arising out of the death or accident in question [10],
the findings may be very persuasive in ensuring that precautions are taken
or defects are remedied with the result that the public could be protected
from some recurring hazard or danger to life.
On the conclusion of the inquiry the sheriff clerk must send to the Lord Advocate
a copy of the determination and, on request, must send to any minister or government
department or to the Health and Safety Commission a copy of the application
for the inquiry, the transcript of the evidence, any report or documentary
production used at the inquiry and the determination [11]. The procurator
fiscal must send to the Registrar General of Births, Deaths and Marriages for
Scotland the name and last known address of the deceased person and the date,
place and cause of death [12].
On payment of the prescribed fee any person may obtain from the sheriff clerk
a copy of the determination [13].
It is competent to judicially review a Sheriff’s determination.
[1] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c 14), s 6(1).
[2] FASDI(S)A 1976, s 6(2).
[3] FASDI(S)A 1976, s 6(1)(a),(b).
[4] FASDI(S)A 1976, s 6(1)(c).
[5] FASDI(S)A 1976, s 6(1)(d).
[6] FASDI(S)A 1976, s 6(1)(e).
[7] Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, SI 1977/191, r 11(1).
[8] SI 1977/191, r 11(2).
[9] SI 1977/191, r 11(3).
[10] Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, s 6(3).
[11] FASDI(S)A 1976, s 6(4)(a).
[12] FASDI(S)A 1976, s 6(4)(b).
[13] FASDI(S)A 1976, s 6(5)(a); Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, SI 1977/191, r 15(1).
Summary
A Fatal Accident Inquiry can prove to be a very important for the following
reasons:
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