What is a Fatal Accident Inquiry? FAI Explained

A Fatal Accident Inquiry is a public hearing in Scotland that investigates how a person died to learn and consider what might be done to prevent similar deaths in future. Families usually first hear about the process after a loved one has died in custody, in a workplace accident, or in another setting where the Crown Office decides a public examination of the facts is in the public interest.

What is a Fatal Accident Inquiry or FAI?

A Fatal Accident Inquiry, often shortened to FAI, is a Scottish judicial process for investigating certain deaths. It takes place in public, in front of a Sheriff (a type of judge), with no jury. Evidence is presented by the Procurator Fiscal on behalf of the Crown, and other parties with a legitimate interest can also be represented.

The Inquiry is inquisitorial rather than adversarial. It is not a trial. Nobody is in the dock and the Sheriff is not asked to apportion blame. The purpose is to establish the facts of the death and to identify whether similar deaths could be avoided in future.

The closest equivalent in England and Wales is an inquest, which is run by a Coroner. Scotland has neither inquests nor Coroners. Investigations into reportable deaths are led by the Crown Office and Procurator Fiscal Service (COPFS), and where a public hearing is needed, that hearing is an FAI.

The law that governs Fatal Accident Inquiries

FAIs are governed by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, which received Royal Assent on 14 January 2016 and replaced the long-standing Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. Procedural detail is set out in the Act of Sederunt (Fatal Accident Inquiry Rules) 2017, which deals with how evidence is led, how the Sheriff manages the timetable, and how parties are notified and can apply to take part.

The 2016 Act followed a review by Lord Cullen of Whitekirk and was intended to modernise an older statute that dated to the 1970s. Among its changes, the Act expanded the categories of death that can or must be investigated, allowed inquiries to be held into deaths abroad in some cases, and introduced a power to reopen inquiries when fresh evidence comes to light.

When is a Fatal Accident Inquiry mandatory?

Under the 2016 Act, an FAI must take place where the deceased was in legal custody at the time of death, or where the deceased died as a result of an accident at work. The Act extends mandatory inquiries for deaths in lawful custody to the deaths of children in secure accommodation, recognising that those settings carry the same state responsibility as prison or police custody.

In a small number of situations the Lord Advocate can decide that even a mandatory inquiry is not required. The most common reason is that the circumstances of the death have already been examined in detail in criminal proceedings, and an FAI would not add to public understanding. Where a family asks for a mandatory FAI to be held and the Lord Advocate decides not to proceed, the 2016 Act requires a written explanation to be given.

Discretionary Fatal Accident Inquiries

Beyond the mandatory categories, COPFS can hold an FAI in any other case where it is “expedient in the public interest”. That phrase is not exhaustively defined in the Act. In practice, discretionary inquiries are held into deaths that raise wider concerns: deaths in NHS settings where systemic issues are identified, deaths in private care or detention, deaths arising from incidents on transport networks, deaths abroad of UK-connected individuals, and deaths whose circumstances point to lessons that should be learned across an industry or institution.

COPFS is required to consider the views of the deceased’s family before deciding whether to hold a discretionary inquiry. Families can ask for a decision not to hold an inquiry to be reviewed.

How an FAI works in practice

The investigation that precedes an FAI is led by the Procurator Fiscal, often with input from Police Scotland, health and safety regulators, or other specialist bodies. The Crown Office decides whether to bring criminal charges first. If it does, those proceedings will be concluded before any FAI starts.

Once an FAI is set down, the case is allocated to a Sheriff Court, usually in the area where the death took place, although the Lord Advocate has the power to direct an inquiry to a different sheriffdom. Sittings can be held in a court building, another suitable public venue, or online. The Sheriff decides where and how the Inquiry is held.

Most Inquiries begin with a Preliminary Hearing. At this hearing the Sheriff identifies who is taking part, narrows down the issues that need to be examined, and sets an estimate for the length of the Inquiry. More than one Preliminary Hearing may be needed where the issues are complex.

At the Inquiry itself, evidence is led by the Procurator Fiscal in the public interest. Witnesses give live evidence, and previous witness statements may be read out where the parties agree. A document called a Joint Minute of Agreement is often used to record evidence that all parties accept, which keeps the hearing focused on the points that remain in dispute. Other parties can ask their own questions, lead their own witnesses, and make submissions through their solicitor or counsel.

The length of an Inquiry depends on the complexity of the case. Some are completed in a single day. Others sit on and off for several weeks, particularly where the death involves multiple agencies or contested expert evidence.

Who can take part in a Fatal Accident Inquiry?

The 2016 Act sets out who is entitled to participate in an FAI. The list includes:

• the deceased’s spouse, civil partner, or partner with whom they were living
• the deceased’s nearest relative, where there was no spouse or partner
• the deceased’s employer, where the death happened at work
• a Health and Safety Executive inspector
• a trade union representative
• any other person the Sheriff decides has a sufficient interest in the Inquiry.

Each of these parties can be represented by a solicitor or by counsel. Families do not have to instruct a solicitor. They can attend in person and ask the Sheriff to put questions on their behalf. Many families choose to be represented because the procedure is technical, the evidence is often distressing, and other parties such as employers, prison authorities, or NHS bodies will usually have lawyers of their own.

The Sheriff’s Determination

At the close of the Inquiry, the Sheriff issues a written Determination. The Determination sets out the Sheriff’s findings on:

• when and where the death happened
• when and where any accident causing the death happened
• the cause or causes of the death
• the cause or causes of any accident
• any precautions that could reasonably have been taken to avoid the death
• any defects in a system of working that contributed to the death
• any other facts the Sheriff considers relevant.

A Determination can also include recommendations addressed to specific organisations, asking them to make changes that might prevent a similar death in future. Recommendations are not mandatory. The Sheriff makes them only where the evidence supports them, and where reasonable precautions were already in place, no recommendations will be made.

Once published, Determinations appear on the Scottish Courts and Tribunals Service website. Any organisation that a recommendation is directed to has to respond, either confirming what they will do or explaining why they will not act on it.

A Determination has an important limit. It cannot be used as evidence in any other court proceedings. If a family later pursues a civil claim for damages, that claim runs separately from the FAI, and the Sheriff’s findings cannot be relied on to prove the case. The civil court will hear its own evidence.

How an FAI differs from a criminal trial and an inquest

The differences between an FAI, a criminal trial, and an inquest are sometimes blurred in news coverage, particularly where the same death has prompted more than one process.

A criminal trial decides whether a named accused is guilty of a specific offence. The standard of proof is beyond reasonable doubt, and the consequence is a verdict and, where there is a conviction, a sentence. An FAI does not decide criminal guilt. Where criminal charges arise from a death, those proceedings are dealt with first.

An inquest is the equivalent of an FAI in England, Wales, and Northern Ireland. It is run by a Coroner rather than a Sheriff. The procedure is different, and the rules on who can take part and what findings can be made differ in important ways. Scotland has had no Coroner since 1895, when fatal accident inquiries were first introduced into Scots law.

A public inquiry under the Inquiries Act 2005, is also distinct from an FAI. Public inquiries examine a defined set of issues over a longer period, often national in scope, and are usually chaired by a senior judge or other appointed person rather than a Sheriff. An FAI is narrower in scope and is concerned with the circumstances of the death itself.

Where to get advice

Families considering whether to take part in a Fatal Accident Inquiry have a clear choice to make about representation. The procedure is set down in statute, the issues can be technical, and the other parties usually instruct experienced counsel. We act for families across Scotland in Fatal Accident Inquiries, deaths in custody, and related public inquiries. To talk to one of our solicitors at Aamer Anwar & Co. about your situation in confidence, consider arranging a consultation with us.