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Section 3: The decision that an FAI should be held
3.1 This section of the paper is concerned with the categorisation of deaths for which an FAI is or may be required; and the communication of decisions as to whether there should be an FAI.
A The mandatory category
3.2 The procurator fiscal (for the district with which the circumstances of the death appear to be most closely connected) is under a duty to investigate the circumstances of the death and apply to the sheriff for the holding of an FAI where it appears that the death has (a) resulted from an accident occurring in Scotland while the person who has died was in the course of employment or, being an employer or self-employed person, was engaged in his occupation as such, or (b) occurred when the person who has died was, at the time of his death, in legal custody. 14 These make up the mandatory category.
3.3 In regard to deaths at work, it should be noted that in 1967 the Grant Committee recommended that the requirement to hold an FAI into a death due to an accident in the course of industrial employment should be abolished 15. The Committee took the view that such deaths should be the subject of an FAI only where the Lord Advocate thought it appropriate. The Government of the day rejected the recommendation, and had the requirement for an FAI extended to cover self-employed persons.
3.4 Given that the Health and Safety Executive (the HSE) may, with the consent of the Secretary of State, direct an inquiry to be held into a fatal accident at work, it might be argued that there may be no need for an FAI into deaths at work. It might be said that such a death should be subject to an FAI only where the Lord Advocate decides, following a decision of the HSE not to inquire into the death, that one should be held.
3.5 A person is in "legal custody" if (a) he or she is detained in, or is subject to detention in, a prison, remand centre, detention centre, or young offenders institution; (b) he or she is detained in a police station, police cell, or other similar
place; or (c) he or she is being taken to any of the places mentioned above to be detained therein or from any such place in which immediately before such taking he or she was detained. 16 The definition does not cover persons detained by the police other than in a police station, or those who are remanded to the care of the local authority or subject to a court-imposed hospital order.
3.6 It has been suggested that it would be desirable to expand the definition to include deaths in police custody outwith police stations and deaths of patients detained under the Mental Health (Care and Treatment) (Scotland) Act 2003. There is legal authority for the view that there is no reason to afford those detained under mental health legislation any less rights under Article 2 of the ECHR than those detained in a prison or in a prison hospital. 17 It has also been suggested that deaths of children in care should be included.
3.7 Other suggestions for inclusion in the mandatory category include deaths caused by drugs and and deaths on roads.
3.8 It may be noted that other countries provide for mandatory inquests into deaths of people detained under compulsory mental health powers; unresolved homicides; deaths from anaesthesia; deaths of unidentified people; deaths in care (including children in care and patients in alcohol and drugs assessment or treatment centres); and apparent suicides. 18
3.9 As against that, it may be said that it is not in the public interest for the Lord Advocate to require an FAI into, for example, every road death, let alone incur the need to increase resources for this purpose. It has been suggested by some contributors that a suitable balance has already been achieved. Accordingly, in their view, there is no need to change the mandatory category.
6. Should the deaths which fall within the mandatory category be changed?
3.10 It has also been suggested that there should not be a mandatory requirement for an FAI where the cause of death is clear, as with death by natural causes.
3.11 With regard to deaths in legal custody, it is understood that such deaths give rise to the state's accountability under Article 2 of the ECHR, in the sense that it is for the state to explain the circumstances. However, there may be an exception to this where preliminary independent investigation establishes that it was plain that the state could not possibly bear responsibility for the death. 19 This might apply in the case of deaths by natural causes. If there were room for such an exception, the views of the relatives of the deceased would no doubt require to be taken into account.
3.12 As against that, some contributors take the view that there should be no room for exception, especially in the case of deaths in legal custody.
7. Should the requirement to hold an FAI into a death which falls within the mandatory category be subject to exception?
B Discretionary category
3.13 The procurator fiscal (for the district with which the circumstances of the death appear to be most closely connected) is also under a duty to investigate the circumstances of the death and apply to the sheriff for the holding of an FAI where it appears to the Lord Advocate to be expedient in the public interest that an FAI should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as give rise to serious public concern. 20
3.14 Where there is a question of a discretionary FAI, the procurator fiscal is expected to ascertain the views of relatives and convey them to the Crown Office. These views will be taken into account, but the decision is ultimately a matter for the Lord Advocate. However, it has been said that the views of other interested parties should be considered, and that they should have the opportunity to make representations to Crown Office before a decision is made about whether or not an FAI should be held.
3.15 On the other hand, it might not always be possible to know who the interested parties are. Further, it could be said that it is undesirable that other interested parties, who have a vested interest in the Lord Advocate's decision, should have the opportunity to seek to influence the outcome.
8. Should other interested parties be able to make representations to the Lord Advocate during the decision making process?
3.16 It is noted that during the 1990s there were an average of 121 FAIs a year, but thereafter the average dropped to 61 FAIs a year. The COPFS has explained that in recent years there have been fewer deaths resulting from accidents in the course of employment and in legal custody, but say that its policies in respect of the discretionary category are under ongoing review. During the course of 2003-2004 there was an in-depth examination of policy in relation to the investigation of deaths. This resulted in the expansion and clarification of the guidance in relation to the exercise of the Lord Advocate's discretion in respect of FAIs.
3.17 It appears that the Lord Advocate has adopted a more selective approach over time so as to ensure that discretionary FAIs are only held when there are clearly matters of public interest. For example, it is understood that isolated incidents involving errors of judgment, one-off medical errors or instances of poor driving will not normally provide sufficient justification for discretionary FAIs. However, the COPFS emphasise that the Lord Advocate considers the facts and circumstances of each death and decides whether or not it is in the public interest to hold an FAI.
3.18 The decision-making process is not prescribed by statute. Crown Office relies on its own guidance. If Crown Counsel decides that an FAI should not be held, the relatives are so informed. Some contributors have said that they should be given a more detailed explanation in the form of a reasoned decision, and that, if this were done, the decision would be less likely to be questioned. At present there is no right of appeal, but parties can apply for judicial review 21, although this is narrower in its scope than an appeal on the merits.
3.19 As against this it could be argued that the current process is adequate in the circumstances, and that a formal, reasoned decision may be unnecessary and a requirement to provide one unduly onerous.
9. Where the Lord Advocate decides not to hold an FAI, should a formal, reasoned decision be provided to relatives of the deceased?
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