Health and Safety Prosecution / Fatal Accident Inquiry

A fatal accident inquiry (FAI) is a statutory public inquiry into the circumstances of a death. The Procurator Fiscal can apply to the Sheriff Court to hold a FAI once the investigation of the death is complete. The Procurator Fiscal must hold a FAI when a death was caused during employment, or while in legal custody, i.e. while being held at a police station or prison.

If you or your organisation are ‘invited’ to be a party to a Fatal Accident Inquiry you should obtain immediate independent legal advice.

Very often parties are invited to attend at Fatal Accident Inquiries and can arrange legal representation through insurance policies or can apply for legal aid.

In other circumstances, the Procurator Fiscal can hold a FAI where there are issues of public safety or matters of general public concern arising from a death and there is a need to highlight hazardous or dangerous circumstances or systems that have caused or contributed to it.

At the end of a FAI, a Sheriff makes a determination. The determination will set out:

where and when the death occurred;

  • the cause of death;
  • any precautions by which the death might have been avoided; and
  • any defects in systems that caused or contributed to the death.

A FAI cannot make any findings of fault/blame against individuals.

The Procurator Fiscal is required to hold an inquiry if it appears that the death has resulted from an accident occurring in Scotland while the person who has died, being an employee, was in the course of his employment or, being an employer or self-employed person, was engaged in his occupation as such.

The Procurator Fiscal who must conduct the mandatory inquiry is the Fiscal whose district appears to be most closely connected with the circumstances of the death. An inquiry does not need to be, but can be, held in cases where criminal proceedings have been concluded against any person in respect of the death or any accident from which the death resulted and the Lord Advocate is satisfied that the circumstances of the death have been sufficiently established in the course of such proceedings.

Similarly, inquiries need not be held under the Act where an inquiry has been held under HSW Act s14 unless the Lord Advocate otherwise directs.

There are also discretionary powers given under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 to the Lord Advocate when he considers it to be expedient in the public interest to hold an inquiry into the circumstances of a death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern.

An inquiry could therefore be held under these discretionary powers in the circumstances of a fatal accident to a member of the public arising out of work activities which caused his death.

A Fatal Accident Inquiry is advertised in the press a minimum of 21 days before the date on which it will be held in the Sheriff Court.

The Fiscal will conduct the inquiry and examine the witnesses called by him but the representatives of the deceased, the employer of the deceased and any other person who the Sheriff is satisfied has an interest in the inquiry may also appear and give evidence at the inquiry.

If you are called as a witness at the inquiry, the Fiscal will not at such inquiry ask you when giving evidence to attach blame directly to any person or persons but this would not prevent the Fiscal inquiring about the question as to whether any particular requirement of the law was duly observed and who was responsible for observing that particular requirement. It is also likely that you will be asked questions by other interested parties who are appearing at the inquiry.

It should be borne in mind that the rules of evidence applying to FAIs are the rules for civil cases, such that all hearsay evidence is admissible, as well as all documentary evidence. This is often very useful in cases involving accidents at work for example, as inspectors who arrived promptly at the locus can give valuable evidence regarding what they heard or were told, not normally admissible in criminal proceedings.

Sheriff’s Determination

It is not the function of the Sheriff at a FAI to decide whether anyone was at fault or whether a breach of the law has been committed. His function in terms of s6 of the 1976 Act is to determine:

  1. where and when the death and any accident resulting in the death took place;
  2. the cause or causes of such death and any accident resulting in the death:
  3. the reasonable precautions, if any, whereby the death and any accident resulting in the death might (note: not “would”) have been avoided;
  4. the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and
  5. any other facts which are relevant to the circumstances of the death.

Not infrequently the Sheriff will make a merely “formal” determination dealing only with heads (a) and (b) which are the only findings which he must make. In such cases the determination is sometimes given at the conclusion of the Inquiry. In other cases the Sheriff will reserve his determination and issue it in writing to all interested parties, including HSE, some time later.

The determination of the Sheriff is not admissible in evidence or able to be founded on in any judicial proceedings of whatever nature arising out of the death or out of any accident from which the death resulted. So the determination cannot therefore be relied on by the relatives of the deceased in an action for damages in consequence of the death.

1. The evidence given at the Inquiry is however very useful to parties in such actions.

Procedure following FAIs

After the FAI, the Fiscal will submit his report to Crown Counsel. In cases where Crown Counsel is not satisfied with the reason given for not taking proceedings, it is open to him to instruct the Fiscal to prosecute.

Following recent case law it is now possible for a Sheriff’s determination at the conclusion of the inquiry to be the subject of judicial review. It must be borne in mind in light of these developments that the Sheriff’s determination may not now necessarily be the final one.