Fatal accident inquiries benefit from recommendations in new act - Mark Donaldson

Mark Donaldson, Partner & Solicitor Advocate, Clyde & Co

In Scotland, a Fatal Accident Inquiry (FAI) is held in certain situations, most often where someone has died whilst at work or in legal custody and the circumstances have not otherwise been made public during other proceedings such as a prosecution. The decision on whether an inquiry is needed rests with the Crown.

An inquiry will normally be heard in the Sheriff Court closest to the location of the incident resulting in death. It aims to establish where, when and how an accident occurred and, if possible, give guidance on how similar accidents might be prevented in future.

For 40 years, the procedure was underpinned by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. In 2008, the Scottish Government invited Lord Cullen to ensure the procedures were still fit for purpose.

The review was published in 2009 and Lord Cullen made a number of recommendations to ensure the inquiry system remained effective, efficient and fair. Taking into account the recommendations, the Government carried out a wider consultation, ultimately resulting in a new Fatal Accident and Sudden Deaths Act, coming into force in 2016.

Five years on, how effective has the 2016 Act been in dealing with the issues highlighted by Lord Cullen and ensuring the inquiry system remains fit for purpose?

There were nearly 40 recommendations covering the process and I consider two aspects: focus and formality.

In relation to focus, the pre-2016 system had no requirement for a preliminary hearing in advance of the inquiry itself. Approaches varied from court to court and sometimes it might only be on the first morning of the inquiry that you found out for sure who else was taking part. It could also take a few witnesses before the main themes and issues became clear. There were also occasions where an inquiry might temporarily go off at a tangent or get bogged down on one particular aspect.

Recognising this, the 2016 Act brought in mandatory preliminary hearings. In addition there is a requirement on participants to lodge a notice in advance of the preliminary hearing, setting out what they think the inquiry should cover and specifically highlighting matters likely to be in dispute, an indication of the number of witnesses and productions anticipated and what they will speak to/cover.

At the preliminary hearing, the Sheriff must consider the notices, explore with parties the matters genuinely in dispute and set down what the inquiry will cover, the witnesses and productions required, the date it will start and the anticipated duration.

Parties are also directed to cooperate and produce a document incorporating the background information the inquiry will need which is not in dispute.

Pre-2016, rules covering agreement of evidence were a little inflexible and on occasion witnesses had to attend and speak to matters not really in dispute. Under the 2016 Act the Sheriff has wider powers to receive written statements in place of oral evidence to help with focus and reduce formality.

So what is the verdict on the 2016 Act five years on?

In my experience, the work done in advance to clearly identify and agree what the inquiry will cover, the matters in dispute and having only the essential witnesses and documents tends to make the evidence flow better. Inquiries are definitely shorter and, with any aspects in dispute being better focussed, tend on the whole to be less adversarial and more collaborative. In combination with the post-2016 norm for the Sheriff and Advocates/Solicitors to wear business clothes rather than wigs and gowns, the atmosphere is less formal, hopefully making proceedings seem less alien and easier to follow.

However there is still a problem with overall timescale. The five I have done in the last year have taken on average 27 months to get from accident to first day of inquiry.

Fatal accidents are by nature complex and challenging and need to be approached with care and consideration. But where possible earlier decisions on whether an inquiry is required or not will allow maximum benefit to be gained from the 2016 Act, achieving the aim of a system that remains effective, efficient and fair.

Mark Donaldson, Partner & Solicitor Advocate, Clyde & Co