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Section 2: General
2.1 This section of the paper is concerned with the purpose and features of an FAI; the forum in which it should be held; the procurator fiscal; and jurisdictional issues, such as deaths abroad and multiple deaths in more than one jurisdiction.
under the ActFAIA The purpose and features of an
2.2 An FAI is a fact-finding exercise carried out in the public interest. The rules of evidence and the standard of proof are the same as for civil cases in Scotland. The sheriff seeks to determine where and when the death and any accident resulting in the death took place, and the cause or causes of the death or such accident. Practices, procedures or actions will be relevant only in so far as they have some bearing on the circumstances in which the death occurred.
2.3 The purpose of an FAI is the public examination of the circumstances of the death where that is warranted. An examination of the Act shows that it treats certain features of the FAI as essential. They are that:
- it is held locally
- it is inquisitorial in nature
- it is conducted by a judge
- evidence is presented at the hearing by the procurator fiscal
- evidence is examined in public
- there are recognised participants, including the wife or husband, or nearest known relative, of the deceased
- there is a public determination by the judge as to the circumstances of the death
1. Should there be any change in the purpose or the features of FAIs?
FAIB The forum for an
2.4 FAIs are held in the sheriff court. Some contributors have a suggested that a forum other than the sheriff court would be more appropriate.
Firstly, it has been said that the sheriff court is not suitable for FAIs of medical or technical complexity, and perhaps also where the regime in which the death occurred (eg that of a prison) may not be readily understood, and that for these FAIs there should be a specialist tribunal, to whom a reporter would present evidence.
2.5 As against that, it may be said that it is undesirable to fragment the system; that it may not always be practicable to identify which FAIs should be assigned to such a tribunal; and that the need for specialist or background knowledge could be met by the selection of, and guidance for, suitably qualified sheriffs or a greater use of assessors.
2.6 Secondly, it has been said that all FAIs should be taken out of the sheriff court and assigned to some form of tribunal dedicated to the conducting of FAIs. Some have said that the court setting is over-formal, and that the proceedings frequently are over-elaborate, and tend to be adversarial and intimidating for witnesses and relatives. It is suggested that FAIs should be held by such a tribunal (sitting locally), which would have an unmistakably inquisitorial role. It is claimed that this less formal setting would be more likely to put witnesses at their ease and get at the truth. It might also be said that separation from the sheriff court would also free FAIs from having to compete with civil and criminal cases (all adversarial proceedings) for time in the sheriff court.
2.7 However, it may be said that it is unnecessary to depart from the sheriff court model which has been in use for many years. It should be possible for sheriffs to ensure that they adopt an inquisitorial role, preventing lawyers from seeking to pin blame and lay the foundation for a claim of damages. If necessary, sheriffs could be specifically selected and given guidance for this purpose. There could also be greater insistence on the holding of FAIs "as soon [after the procurator fiscal's application]… as is reasonably practicable". 11
2.8 Thirdly, it has been said that FAIs should be taken out of the sheriff court and heard in the Court of Session on the basis that matters which may involve the need for compliance with Article 2 of the European Convention on Human Rights (the ECHR), which is concerned with the right to life, ought to be handled in the supreme court in Scotland.
2.9 As against that suggestion it may be said that it would, if anything, compound the criticisms which have been made of the sheriff court as the forum. It might also increase the cost of legal representation. Further, as matters stand, there is no legal authority to suggest that the operation of the Act may be incompatible with the ECHR.
2. Should FAIs be held in some forum other than the sheriff court?
C Procurators fiscal
2.10 In regard to FAIs, it is expected that the procurators fiscal:
- will apply for an FAI when it is mandatory;
- will, where there is a question of a discretionary FAI, report to Crown Office with the views of relatives and his or her recommendation;
- will apply for such an FAI if so instructed by Crown Counsel;
- will intimate the decision to the relatives, and discuss it with them;
- will obtain police statements, precognitions and expert reports;
- will discuss with the relatives or their legal representative what witnesses the procurator fiscal intends to lead;
- may ask them whether there are any questions they wish to be answered;
- will explain the process to them and keep them up to date with progress;
- may put questions to witnesses specifically on behalf of the relatives
2.11 In the larger areas, such as Glasgow and Edinburgh, there are Death Units. The staff of these units deal with the investigation of deaths at large, including deaths caused by crime. The COPFS guidance 12does not provide for a specific length of time for which a member of staff should remain in such a unit. It is understood that in the smaller areas, the investigation of deaths, along with various other matters, are handled by senior and experienced staff.
2.12 There are currently no units that are structured specifically to deal with deaths which will, or may, be the subject of an FAI.
2.13 It has been said by some contributors that there is a need for better investigation for FAIs, and that this would save time and expense at the stage of the hearing; that procurators fiscal may be understaffed and the statements taken
by the police are sometimes inadequate. It has also been claimed by some that procurators fiscal are not familiar with civil cases; need better training for FAIs; and are not experienced in leading medical evidence. It is also said that, perhaps due to constraints on expenditure, they do not always secure the services of the most authoritative experts.
2.14 Some contributors have suggested that the COPFS should have specialist procurators fiscal to handle FAIs. It has been said that these specialists could be recruited, for example, from the ranks of civil practitioners or from existing members of the COPFS who have particular aptitude for handling FAIs. Their work would start from the point when it is clear that an FAI has to be held because it is mandatory or, as the case may be, when there is a live question as to whether there should be a discretionary FAI. It would include the important responsibility of maintaining good communications with the deceased's relatives. They could be engaged to work locally or as part of a centralised unit, with links to local procurators fiscal. If centralised, this specialist team would resemble similar specialist units within the COPFS, such as the Health and Safety Division which is soon to be established.
3. Should specialist procurators fiscal handle FAIs? If so, should they be part of a centralised team dedicated to FAIs?
D The deaths of Scots abroad
2.15 There have been calls for provision to be made by statute for mandatory FAIs into the deaths of Scottish servicemen and women abroad. Specific provision to this effect would be outwith the competence of the Scottish Parliament, because defence is reserved to the UK Parliament. It is understood that the making of such provision is currently the subject of discussions between the UK and Scottish Governments. It is not within the remit of this Review.
2.16 It is considered that it would be within the remit of this Review to make a recommendation that the Act should be extended to provide for FAIs into deaths of all Scots (ie including Scottish service personnel) abroad where the bodies are repatriated, on the basis that this would be covered by the retained functions of the Lord Advocate in regard to the investigations of deaths. For this purpose it would, of course, be necessary to have a workable definition of "Scots", such as persons normally resident in Scotland.
2.17 However, such an extension of the Act could be problematic, because of its practical and resource implications, especially if FAIs into such deaths were to be mandatory. An added complication may be that it is not possible to compel witnesses from outside the UK to attend to give evidence.
4. Should the scope of the Act be altered so as to cover FAIs into the death of Scots abroad?
E Multiple deaths in separate sheriffdoms due to a single cause or raising similar issues
2.18 Application for the holding of an FAI has to be made to the sheriff with whose sheriffdom the circumstances of the death appear to be most closely connected 13. It has been said that there should be a widening of the current jurisdictional approach, which is focused on the location of the death or the most significant event leading to the death. The current system does not address situations in which clusters of deaths occur within different sheriffdoms, but have arisen from a single event or raise common or identical issues, for example as a result of a particular infection. It may be said that in such cases it is undesirable that an FAI is unable to consider the whole context and the evidence relating to it. As the law stands, there are legal and practical issues to overcome before a single FAI can be held into multiple deaths in such circumstances.
5. Should it be possible for FAIs to be held, where appropriate, into multiple deaths in more than one jurisdiction?
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