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Section 2: General
2.1 This section of the paper was 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.
A The purpose and features of an FAI under the Act
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.
1. Should there be any change in the purpose or the features of FAIs?
2.3 Seventy responses were received to this question. Nineteen were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fourteen from lawyers and their representative bodies; thirteen from other individuals and groups including academia, charities and unions; seven from the judiciary; seven from relatives; four from investigators; three from procurators fiscal, including the COPFS; and two from expert witnesses. There was no consensus on this question.
2.4 Many respondents called for change in the purpose or features of FAIs. For example, Shepherd and Wedderburn LLP suggested the following list of changes:
"[B]etter exchange of written statements and relevant material well in advance of the Inquiry to restrict and reduce the amount of oral evidence led; more effective use of preliminary hearings so that relevant parties can exchange documentation as well as providing the parameters around the issues to be investigated; ensuring that the Fiscal who conducts the Inquiry is appropriately briefed and experienced in conducting such Inquiries; effective management of Inquiries by the Sheriff, recognising that where this has occurred Inquiries are less prolonged and more directed towards the critical issues determined by the Act; use of agreed written statements either to excuse witnesses or to confine their evidence to matters supplementary to those written statements."
2.5 However, a number of respondents opposed change. For example, the Judges of the Supreme Courts commented that:
"[A]n FAI as presently envisaged has certain essential features. It is public, local and inquisitorial. It is presided over by a judge and evidence is led by the procurator fiscal acting in the public interest. In most cases there are recognised participants and the determination is in the public domain. There is no compelling case for departing from these essential features and one would not wish the process to become any more adversarial than is sometimes the case."
2.6 There were also calls from Aberdeen University School of Law, the COPFS, Scotland's Commissioner for Children and Young People and Victim Support Scotland for the purpose to be made clearer and Elizabeth Mauchland suggested that sheriffs should call expert witnesses, suggesting they should have an inquisitorial, rather than a passive, role.
B The forum for an FAI
2.7 FAIs are held in the sheriff court. Some contributors pre-consultation suggested that a forum other than the sheriff court would be more appropriate.
2. Should FAIs be held in some forum other than the sheriff court?
2.8 Seventy-three responses were received to this question. Twenty responses were received from interested parties, such as the Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; fourteen from other individuals and groups including academics, charities and unions; eight from the judiciary; seven from relatives; three from investigators; three from procurators fiscal, including the COPFS; two from expert witnesses and one from SLAB. There was no consensus on this question.
2.9 Many respondents opposed change. For example, the Sheriffs Principal said:
"The sheriff court has capacity to deal with FAIs and many sheriffs are experienced in dealing with them. Sheriffs Principal have as a matter of practice undertaken lengthy and high profile inquiries. The creation of a separate "tribunal" or other body for the sole purpose of hearing FAIs would in our view constitute an unjustified expense."
2.10 However, a number were in favour of some form of change in respect of the forum. For example, Families Outside said:
" FAIs could be held in a court building or other government forum if need be, but not in a court room. The setting should be official, but not as formal as a court room setting, ideally at a round or oblong table, such as in a conference room. Court rooms in this country are by definition associated with accusatorial proceedings and consequently with findings of guilt and attribution of blame. If proceedings are indeed inquisitorial, the setting should remind participants of this. Further, a formal court room increases anxiety to people who are not accustomed to such a setting. Participants in an FAI are already likely to be in some distress or under pressure, so the setting should not exacerbate this."
2.11 Of those in favour of a change, three wanted a move to the Court of Session for some or all FAIs. However, eleven respondents expressly noted their opposition to such a move. Thirteen respondents in favour of a change suggested a new tribunal system and the others in favour of change, that commented, recommended a less formal and more flexible system, which could be provided for within the current sheriff court system. Of those opposed to changing the forum, there was still some support for more flexibility in the current system, such as the ability to appoint Court of Session judges.
C Procurators fiscal
2.12 Some contributors pre-consultation suggested that the COPFS should have specialist procurators fiscal to handle FAIs. It was said that they could be engaged to work locally or as part of a centralised unit, with links to local procurators fiscal.
3. Should specialist procurators fiscal handle FAIs? If so, should they be part of a centralised team dedicated to FAIs?
2.13 Sixty-seven responses were received to the first part of this question. Eighteen responses were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; eleven from other individuals and groups including academics, charities and unions; eight from relatives; seven from the judiciary; three from investigators; three from procurators fiscal, including the COPFS; and two from expert witnesses. There was no consensus on this question.
2.14 Fifty-three responses were received the second part of this question. Seventeen responses were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; thirteen from lawyers and their representative bodies; eight from other individuals and groups including academics, charities and unions; seven from relatives; three from the judiciary; three from investigators; and two from expert witnesses. There was no consensus on this question.
2.15 Many respondents were in favour of specialist procurator fiscals. For example, Sheriff Frank Richard Crowe said:
"There should be a particular Advocate Depute appointed to consider cases reported to Crown Office and able to offer the Lord Advocate consistent and high quality advice as to whether and when FAIs should be held. This individual should be supported by a small team in Crown Office able to provide advice to local fiscals engaged in deaths marking and investigation. This unit ought to be responsible for training local dedicated deputes in deaths investigation, reporting and Inquiry work…
Sadly on some occasions the reaction by COPFS and Scottish Court Service to the holding of an FAI is to involve casual staff and afford the case no court programming priority. I would have thought an FAI should by its very nature have priority over all summary crime and almost all sheriff court civil casework. Frequently poor estimates of the duration of inquiries are made and extra days are slotted in at 3 monthly intervals since all other sheriff court case work seems to have priority. The resultant halting progress adds to delays and anxiety for relatives and difficulties for practitioners."
2.16 However, some respondents opposed the creation of specialist fiscals. For example, the Forum of Insurance Lawyers (Scotland) said:
" COPFS should ensure that any Procurator Fiscal allocated to present the evidence at an FAI has had sufficient training in all relevant aspects of FAIs."
2.17 The HSE, the Scottish Prison Service, all the relatives who responded and all the Scottish Health Service bodies who responded support specialist procurators fiscal and were either in favour of a centralised unit or were not explicitly against it.
D The deaths of Scots abroad
2.18 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 abroad where the bodies are repatriated.
4. Should the scope of the Act be altered so as to cover FAIs into the death of Scots abroad?
2.19 Fifty-three responses were received to this question. Twelve responses were received from interested parties, such as the Scottish Health Service bodies, local government and medical and health groups; twelve from lawyers and their representative bodies; eight from the judiciary; eight from other individuals and groups including academics, charities and unions; three from relatives; three from investigators; three from procurators fiscal, including the COPFS; two from expert witnesses; and one from SLAB. There was no consensus on this question.
2.20 Many respondents were in favour of altering the scope of the Act to cover FAIs into the deaths of Scots abroad. For example, Mr I. H. Buist Carmichael said:
"Procurators fiscal should have the power, and the duty, of inquiring into, and investigating the circumstances attendant upon the deaths occurring abroad of Scottish residents, analogous to the current requirement, laid upon a coroner [in England and Wales]… At least the deceased's relatives will have the opportunity of voicing any concerns they may have regarding the circumstances of the death, or the standard of investigation in the country where the death occurred."
2.21 However, a number of respondents were against altering the scope of the Act to cover FAIs into the deaths of Scots abroad. For example, DLA Piper Scotland LLP said:
"[T]here would be many practical problems with this including the difficulty for the Crown of carrying out detailed investigations in a foreign jurisdiction… [which] would have significant resource and financial implications for the Crown."
2.22 From those in favour there appeared to be a general view that such FAIs should be discretionary rather than mandatory.
2.23 As regards views expressed against altering the scope, there was frequent reference to "practical and resource implications" and "securing evidence and witnesses". In addition, the Scottish Commission for the Regulation of Care mentioned the need to "respect for the judicial systems in other jurisdictions".
E Multiple deaths in separate sheriffdoms due to a single cause or raising similar issues
2.24 Some contributors pre-consultation suggested 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.
5. Should it be possible for FAIs to be held, where appropriate, into multiple deaths in more than one jurisdiction?
2.25 Fifty-seven responses were received to this question. Thirteen responses were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; thirteen from lawyers and their representative bodies; eight from the judiciary; eight from other individuals and groups including academics, charities and unions; five from relatives; four from investigators; three from procurators fiscal, including the COPFS; two from expert witnesses; and one from SLAB. There was no consensus on this question.
2.26 Many respondents were in favour of multiple death FAIs covering more than one jurisdiction. For example, Mr Rod Sylvester-Evans said:
"[T]he investigation into a multiple fatality accident should be holistic in approach, examining the cause and circumstances, which includes identifying the immediate cause(s) and the root, underlying causes. This often involves many parties and regulatory agencies working at a national and even international level. It seems incongruous and wasteful of resources that the fruits of such investigation should not be considered in a single FAI albeit one that covers more than one jurisdiction."
2.27 However, some respondents opposed multiple death FAIs covering more than one jurisdiction. For example, NHS National Services Scotland said:
"It would be preferable to hold a Public Inquiry of some kind rather than an FAI."
2.28 Some respondents questioned who would control such an FAI and commented that there may be potential dilution of the advantages of holding an FAI locally.
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