What Is a Fatal Accident Inquiry in Scotland?

When someone dies suddenly or in circumstances that raise wider questions, there may be a formal investigation into what happened. In Scotland, one possible part of that process is a Fatal Accident Inquiry (FAI).

A Fatal Accident Inquiry is a court process with a particular purpose. It is not a criminal prosecution and it is not a claim for compensation. Instead, it examines the circumstances of a death and considers whether lessons can be learned that could help prevent similar deaths in future.

For families, the different legal processes that can follow a death can understandably be difficult to distinguish. Below, we explain what a Fatal Accident Inquiry in Scotland is, when an inquiry must or may be held, what its findings can achieve, and how an FAI sits alongside any separate civil proceedings.

1. What Is a Fatal Accident Inquiry (FAI)?

A Fatal Accident Inquiry is a judicial inquiry held in the Sheriff Court, administered by the Scottish Courts and Tribunals Service, to investigate the circumstances of certain deaths in Scotland. This is separate from more routine administrative steps such as registering death certificates.

FAIs are governed principally by the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, passed by the Scottish Parliament, together with procedural rules set out in the Act of Sederunt (Fatal Accident Inquiry Rules) 2017 and the Explanatory Notes that accompany the 2016 Act. The inquiry is conducted by a Sheriff, usually one of a small number of specialist Sheriffs, and proceedings are brought in the public interest by the Procurator Fiscal, part of the Crown Office and Procurator Fiscal Service (COPFS), acting on behalf of the Lord Advocate.

The purpose of an FAI is not to decide who should be punished or to award compensation. Its role is fact-finding and, where appropriate, identifying steps that might help prevent similar deaths in the future. An FAI is inquisitorial in nature rather than adversarial, meaning the Sheriff's role is to establish what happened rather than to decide between opposing sides.

Proceedings usually begin with a Preliminary Hearing, before evidence is heard from witnesses and experts, and documents or other relevant material are considered. Interested parties may also have legal representation and take part in the proceedings where permitted by the court.

At the end of the inquiry, the sheriff issues a written determination, which becomes a matter of public record alongside other notices and determinations of the court. This can set out findings about matters including:

• when and where the death occurred
• when and where any accident resulting in the death occurred
• the cause or causes of the death and any accident
• reasonable precautions which might realistically have prevented the death or accident
• defects in systems of working which contributed to the death or accident
• other facts relevant to preventing deaths in similar circumstances

An FAI is therefore primarily concerned with understanding what happened and whether anything can be learned for the future.

2. When Is an FAI Mandatory Versus Discretionary?

Not every unexpected or unexplained death results in a Fatal Accident Inquiry.

Under Scots law, there are circumstances in which an FAI is generally mandatory, subject to the provisions and exceptions contained in the legislation. There are also circumstances in which the Lord Advocate has discretion to decide that an Inquiry should be held because it is in the public interest.

Mandatory fatal accident inquiries

Broadly, a mandatory FAI is required in relation to certain deaths:

• which occur while a person is in legal custody, including deaths in custody within the Scottish Prison Service; or
• which result from an accident occurring in the course of the person's employment or occupation, including on workplace premises.

A death in legal custody may include, for example, a death occurring while someone is imprisoned or otherwise detained by lawful authority.

A work-related death may lead to a mandatory inquiry where the statutory test is met, allowing the circumstances of the accident, relevant working practices and possible preventative measures to be examined publicly.

However, the legislation contains qualifications and exceptions, so the fact that a death falls into one of these broad categories does not necessarily mean that the practical route to an FAI will be identical in every case.

Discretionary Fatal Accident Inquiries

An FAI can also be held in circumstances where it is not legally mandatory.

The Lord Advocate may decide that an inquiry should take place where a death was sudden, suspicious or unexplained, or occurred in circumstances that give rise to serious public concern, and where it is considered to be in the public interest for the circumstances to be examined through an FAI.

This means the decision is not simply based on whether a family would like an Inquiry to take place. The Crown considers the circumstances of the death and whether the statutory public-interest test for an inquiry is satisfied.

Before an FAI takes place, the circumstances of the death will usually have been investigated by the Procurator Fiscal, often with support from the Crown Office's Scottish Fatalities Investigation Unit. Depending on the case, that investigation may involve information from organisations such as Police Scotland, regulators, public bodies, employers, medical professionals or other agencies.

3. Who Is Represented At a Fatal Accident Inquiry? Do I Need Legal Representation?

The FAI will take place before a Sheriff.

• The Crown will always be represented, either by a Procurator Fiscal, or in exceptional cases, by Counsel.
• If the death has taken place in a hospital or in a healthcare setting then the Health Board will be represented by a lawyer.  If a healthcare professional might be the subject of potential criticism then that professional might also have separate legal representation.
• If the death has taken place in a Prison or in custody then the relevant authority such as the Scottish Prison Service or the Police will always be represented by a lawyer. Individual Police or Prison Officers may also be separately represented.
• If the death has taken place at work then the employer will nearly always be represented by a lawyer.
• If any other institution or organisation faces potential criticism then they may also have legal representation.  
• The family of the deceased is always entitled to legal representation. 

Although the family does not have to be represented, legal representation is a good idea because:

• Nearly all other parties will have legal representation
• The Crown does not act for the family. The Crown are there to act independently in the public interest.
• Proceedings can involve difficult and complex evidence and of law
• A lawyer will carry out investigations in advance of the FAI, including the instruction of independent expert Reports.
• FAI’s often involve complex and sensitive examination and cross-examination of witnesses.
• A lawyer will assist the Court to focus on relevant issues  

Drummond Miller have years of experience and expertise in representing not only families but also, unusually, healthcare and other professionals who may be facing criticism.

Legal Aid will always be available to a family where the death has taken place in custody. Legal Aid may be available in other FAI’s.

4. What findings can and can’t be made following a Fatal Accident Inquiry?

An FAI can provide an important public examination of the circumstances surrounding a death.

Following the evidence, the Sheriff issues a determination setting out the findings that the Court is entitled to make under the legislation. Where the evidence supports it, this may include identifying precautions that could reasonably have been taken, defects in working systems, or other matters relevant to preventing similar deaths.

The process can therefore highlight wider lessons and areas where organisations, employers or public authorities may need to consider change, helping improve compliance with safety standards and, where necessary, prompting enforcement action by the relevant regulator.

Where the Sheriff makes recommendations, organisations to which those recommendations are directed may be required to respond. This can help ensure that issues identified during the inquiry receive further consideration rather than simply being recorded.

An FAI Does Not Determine Criminal Guilt

A Fatal Accident Inquiry is not a criminal trial. The Sheriff is not deciding whether a person or organisation is guilty of a criminal offence.

Any question of criminal prosecution is dealt with separately through Scotland's criminal justice system.

An FAI Does Not Determine Civil Liability

An FAI is also not a civil action for damages. The Sheriff does not award compensation to the deceased person's family and the inquiry does not exist to determine whether someone is legally liable to pay damages.

The legislation restricts the determination from making findings framed in terms of civil or criminal liability.

That distinction is important. Evidence explored during an FAI may be relevant to wider questions surrounding a death, but the Inquiry itself has a different legal purpose from proceedings in which liability and compensation are determined.

An FAI Cannot Undo What Has Happened

For families who have lost someone, no legal process can provide a complete answer to the personal consequences of that loss. An FAI can, however, provide a structured and independent examination of the circumstances and, where appropriate, identify lessons intended to reduce the risk of another family experiencing a similar tragedy.

5. How Does an FAI Relate To a Separate Civil Claim?

A Fatal Accident Inquiry in Scotland and a civil claim arising from a death are distinct legal processes.

An FAI is a public-interest Inquiry concerned with establishing the circumstances of a death and identifying potential lessons for the future. A civil claim, by contrast, considers whether there is a legal basis for holding another person or organisation liable and, where appropriate, awarding compensation.

The existence of an FAI does not itself amount to a finding that a civil claim will succeed. Equally, a family does not necessarily need an FAI determination before the possibility of a civil claim can be considered.

The two processes may nevertheless overlap in practical ways. They can involve some of the same underlying events, witnesses, documents or expert evidence. Information emerging from investigations or an FAI may therefore be relevant to the separate consideration of a civil case.

It is also important to be aware that civil claims are subject to legal time limits. Families should not assume that those time limits will automatically be postponed simply because an FAI, Crown investigation or another process is continuing.

Considering a Claim Alongside a Fatal Accident Inquiry

For some families, an FAI is only one part of understanding what happened following a death. There may also be questions about whether a separate civil claim can be made.

These are different processes, and taking part in or awaiting a Fatal Accident Inquiry should not be treated as a substitute for obtaining advice about the possibility of a claim.

If you are also considering a claim alongside an FAI, our litigation team can help you understand the separate civil process, the issues that may need to be investigated and the options available to you. You can find out more on our Fatal Injury Claims page.

We recognise that dealing with legal processes after the death of someone close to you can add further strain at an already difficult time. We at Drummond Miller have years of experience and expertise in handling the most complex and sensitive cases. We can help guide you through all stages of the process, from initial preliminary advice and guidance right the way through to representation at any Fatal Accident Inquiry.

We're here, to get you there.