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Normally the death of a person is expected or the circumstances surrounding it can be ascertained. Under usual circumstances, a doctor will issue a death certificate which confirms the time, place and cause of death, the deceased's family can then register the death and proceed with the funeral arrangements. Although the majority of deaths which occur in Scotland are clinically expected, there are some which occur unexpectedly. This can be extremely distressing for families and friends of the deceased, due to the suddenness and any uncertainty surrounding the death. Scottish Government statistics show that there are approximately 14,000 sudden deaths each year in Scotland - half of which require investigation by the Procurator Fiscal.
The majority of sudden deaths can be explained after initial investigation, however, there are occasions when a death cannot be explained and the circumstances surrounding the death have to be investigated during using a court process called a Fatal Accident Inquiry. In Scotland, there are between 50 and 60 Fatal Accident Inquiries held each year.
The procedure carried out during a Fatal Accident Inquiry has evolved over time. There has been a variety of legislative developments throughout the years and a review of the Fatal Accident Inquiry procedure by Lord Cullen in 2008. For the purposes of this guide, only the current procedure will be discussed. If you need a Scottish lawyer to provide expert legal advice on a Fatal Accident Inquiry in Scotland whether you are based in Glasgow, Edinburgh, Dundee, Aberdeen, Dumfries (or elsewhere in Scotland), please contact us here.
A broad understanding of Fatal Accident Inquiries in Scotland.
An explanation of the circumstances which lead to a Fatal Accident Inquiry.
A description of the different people involved in a Fatal Accident Inquiry.
Description of what happens during a Fatal Accident Inquiry.
The differences between Scotland and England with regard to investigating sudden or unexplained deaths.
What are sudden, unexplained or suspicious deaths?
What is a Fatal Accident Inquiry?
What role does the Procurator Fiscal have in Fatal Accident Inquiries?
When is a Fatal Accident Inquiry held?
Why is a Fatal Accident Inquiry held?
What happens during a Fatal Accident Inquiry?
Who are the people involved in a Fatal Accident Inquiry?
If criminal charges are brought against someone for causing a death (where applicable), can a Fatal Accident Inquiry still be held?
What is the Sheriff's judgment?
What are the differences between Scotland and England & Wales?
What is a sudden death?
A death is deemed to be sudden if it was not clinically unexpected by medical professionals.
A death is deemed to be unexplained where the cause of death is not clear, and where a doctor is unable to determine what caused the deceased's death.
Where a death is sudden or unexplained and a doctor is unable to issue a death certificate, it must be reported to the Procurator Fiscal .These types of deaths are normally reported to the Procurator Fiscal by a doctor, the police or a local registrar of births, deaths and marriages. The Procurator Fiscal is responsible for deciding when an investigation needs to be conducted and what level of investigation is necessary. If the death is not reported by the police, the Procurator Fiscal may instruct the police to conduct an initial investigation into the death to determine if the death is believed to be suspicious. The medical history of the deceased person is taken into consideration during the investigatory process to establish if it is significant in determining the cause of death. Although it is necessary for the death to be reported to the Procurator Fiscal, after initial investigation with the medical profession, it may be decided that no further action needs to be taken and a death certificate can be issued to the family of the deceased. However, there are occasions when a more detailed investigatory process is needed.
A death is deemed to be suspicious when it is thought that criminal conduct is responsible for causing the death.
All suspicious deaths must be reported to the Procurator Fiscal. The Procurator Fiscal will request that the police conduct an investigation to determine if criminal conduct has been responsible for causing the death or contributing towards it. The types of deaths which are categorised as being suspicious include:
If after further investigation by the police and medical profession, the Procurator Fiscal is unable to establish the cause or circumstances surrounding a death, they will apply to the Sheriff at Sheriff Court located nearest to where the death occurred, asking for a Fatal Accident Inquiry to be held.
A Fatal Accident Inquiry is a public inquiry and is governed by the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976. The aim of a Fatal Accident Inquiry is to establish the cause of death, the circumstances which led to the death occurring and to find ways in which to prevent the death in question happening again. A Fatal Accident Inquiry is described as an inquisitorial court hearing, where information is provided through the oral and written evidence of witnesses. The Sheriff ingathers the evidence presented during the hearing and delivers his judgement known as a determination. A Fatal Accident Inquiry is not a criminal trial and therefore, no fault or blame is apportioned to anyone, but is rather a fact finding exercise.
There are a number of instances where a Fatal Accident Inquiry is mandatory to determine the circumstances of a sudden or unexplained death.
An FAI will be held when a person dies whilst they are being held in police custody. The term police custody applies to a broad spectrum of circumstances, for example when a person is; in a police car, detained by police and is in hospital, being held in a police cell, being transported to the police station, a court or prison. Secondly, a Fatal Accident Inquiry will be held where an employee dies during the course of their employment, this category also includes those who are self-employed.
Where a Fatal Accident Inquiry is mandatory, the Procurator Fiscal will not seek investigatory assistance from the Crown Office, and will proceed directly with a Fatal Accident Inquiry.
The Procurator Fiscal has the discretion as to whether or not to hold an FAI in circumstances where it is believed that the death has caused serious public concern. Whether or not an inquiry is to be held in these circumstances is determined by the Lord Advocate, the chief legal officer of the Crown Office and Procurator Fiscal Service.
Where there is an element of discretion with regard to requesting for a Fatal Accident Inquiry to be held, the Procurator Fiscal has to inform the death unit of the Crown Office and seek the opinion of the deceased's relatives.
The Procurator Fiscal is a solicitor who represents the interests of the public in Scotland. The Procurator Fiscal is accountable to the Lord Advocate as the head of the systems of criminal prosecution and the investigation of deaths. The Procurator Fiscal has a duty to investigate any deaths which are believed to be sudden, accidental, unexplained or suspicious. This role is governed by S.4 (1) of the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976. It is the duty of the Procurator Fiscal to investigate the circumstances surrounding the death. This can be a very short process or can be a lengthy process depending on whether after the initial investigation, a cause can be found to explain the death. From the date a death is reported to the Procurator Fiscal, they are legally responsible for the deceased body until the investigation is completed.
When a death is unable to be explained, it is likely that the Procurator Fiscal will require a post mortem to be carried out. This is a medical examination which is carried out on the deceased person by a pathologist in an attempt to determine the cause of death.
A Fatal Accident Inquiry may be held even though criminal proceedings are being brought against a person in relation to the death. The Fatal Accident Inquiry is usually postponed until the criminal proceedings are completed. Additionally, if the cause and circumstances leading to the death have been established during the criminal proceedings, and the Lord Advocate is satisfied with this, a Fatal Accident Inquiry is not considered to be mandatory, even if the death has occurred during the deceased's employment or when they have been in legal custody.
There are a number of people who are involved in a Fatal Accident Inquiry. Primarily, it is the responsibility of the Procurator Fiscal to lead the evidence, some of which will be through questioning witnesses who have knowledge of the death and documentary evidence, which will probably include medical records. Prior to the inquiry being held, the Procurator Fiscal will have obtained police statements, precognitions from witnesses - including expert witnesses - and ingathered various reports and records. The witnesses to be called will be determined by the nature of the person's death, as will the documents which are used during the hearing. Some of the witnesses involved in the Fatal Accident Inquiry, including relatives of the deceased, may have their own legal representative who will be able to question the other witnesses regarding the death on their client's behalf.
The Scottish Legal Aid Board provides funding to people who are involved in either the criminal or civil court processes. To be eligible for legal aid, the individual has to meet certain criteria involving their private income and capital. If relatives of the deceased have their own legal representative, it is worth enquiring whether they are entitled to help with the cost of their legal representation.
It is the responsibility of the Sheriff to listen to the evidence during the Fatal Accident Inquiry and draw conclusions from it. These conclusions are called determinations. It is important to note that the determinations given by the Sheriff will not apportion or attribute fault or blame against anyone. Moreover, the determinations may not be given until sometime after the conclusion of the Fatal Accident Inquiry.
In accordance with Section 6 (1) of the Fatal Accident and Sudden Death (Scotland) Act 1976, the purpose of the determination is to establish:
When recommendations are made by the Sheriff, they should be actioned by the party or parties to whom they are directed. The recommendations should always, where possible be put into practice.
It is important to note that the determinations given by the Sheriff are not subject to appeal and therefore cannot be changed, however, a judicial review hearing could be held to assess the Fatal Accident Inquiry procedure which led to the determinations been made.
The investigation into sudden, unexplained and suspicious deaths in England and Wales is similar to the procedure followed in Scotland, although the terminology is different. The investigation is conducted by a coroner who is either an experienced doctor or solicitor. The coroners have their own coroner's court where proceedings are held. If after the initial investigatory process, the cause of death cannot be established, the Coroner opens an inquest which is the name given to the court hearing where the inquiry will take place. The inquest is initially opened a few days after the death to establish basic information and then it is suspended until all of the relevant evidence is ingathered.
Nothing in this guide is intended to constitute legal advice and you are strongly advised to seek independent advice on matters that affect you.
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