Follow-up review of Fatal Accident Inquiries

Liaison with Bereaved Relatives

130. The impact of a loved one's death is traumatic and personal and the reaction of nearest relatives can vary widely. Family dynamics can be complex with different reactions from different family members; some may wish to be represented at any inquiry and others may wish privacy and choose not to engage with the procurator fiscal and want no involvement with the FAI. To retain confidence in the investigation and any subsequent FAI, communication must be timely, clear, consistent, empathetic and tailored to the bereaved relatives' needs.

Victim Information and Advice (VIA)

131. VIA is a specialist unit within COPFS, providing a service to victims, witnesses and bereaved families. VIA provide updates on the progress of cases, practical advice and support. At the time of our thematic review, SFIU West and HSD had a dedicated VIA Officer. The presence of a VIA Officer who could offer practical advice and support throughout the investigation and the FAI proceedings was greatly valued by bereaved families.

132. While recognising the fluidity of staff and unpredictable absences may inevitably result in changes of personnel, given the relatively low number of FAIs, we recommended:

Recommendation 9

COPFS should provide a single point of contact for the nearest relatives in all FAIs.

133. We also reported that, in most cases, there was no handover meeting with the nearest relatives by the procurator fiscal dealing with the criminal case and SFIU and that there was a lack of continuity of support for nearest relatives.

134. The impact of an unexpected death of a loved one, especially if the death was caused by a criminal act, is devastating and the distress is compounded by the trauma of having to interact with an impersonal criminal justice system. Placing bereaved relatives' needs at the heart of the process, we recommended:

Recommendation 10

There should be a single point of contact for the nearest relatives throughout the criminal proceedings and any subsequent FAI.

Recommendations 9 and 10

Action Taken

135. All of the geographical SFIU teams now have a dedicated VIA resource. From 23 April 2019, VIA is the point of contact for all new discretionary and mandatory FAIs. For continuity purposes, in some of the older cases, the person who has primarily dealt with the case and the nearest relatives will retain contact, with in some cases, additional support from VIA.

136. Having a VIA presence in each team provides a dedicated VIA resource throughout any criminal and FAI proceedings.

Status: Achieved

Family Liaison Charter

137. The Family Liaison Charter (the Charter) applies to any death reported or any FAI applied for on or after 1 September 2016. It sets out: how and when initial contact will be made with the nearest relatives; what information the nearest relatives can expect to receive; the key stages where updates on progress will be given throughout the investigation and; what contact and information will be given during any criminal proceedings and at the FAI. Crucially, information is to be provided in a manner agreed by the nearest relatives and COPFS at the outset. Where a personal meeting takes place or there has been telephone contact (if that is the preferred method of contact), this will be followed up with a letter containing a summary of those discussions.

138. A process map of the commitments at the various stages is provided at Annex B.

Case Review

139. In every case reported after 1 September 2016 a template, containing the various commitments of the charter, is added to the case directory. At the top of the template there is a section to record the manner and frequency of contact wished by the nearest relatives. There were 15 cases in our review where the death occurred after 1 September and the charter should have been applied from the outset. We examined the 15 cases to ascertain if there was compliance with the obligations set out in the charter.

Communication

140. We found that:

141. In all 15 cases there was a point of contact for the relatives whether it was VIA or a procurator fiscal dealing with the case or in some instances a combination of both.

Initial Report and Post Mortem

142. Following receipt of a death report, the nearest relative should be advised:

• if there is a post mortem
• the cause of death and any amended cause of death and
• if the results of the post mortem will take more than 12 weeks.

143. In all 15 cases, the nearest relatives were advised if there was to be a post mortem, the cause and any amended cause of deaths and if the results of the post mortem were not expected within 12 weeks.

Further Investigations

144. Where further investigation is necessary, whether by the police or another reporting agency, the procurator fiscal should:

• Contact the family no later than 12 weeks after the death has been reported, to inform them of progress made and likely timescales for the investigation. A personal meeting will be offered at this time which will take place within fourteen days unless the family indicate they do not wish a personal meeting.
• Contact the family every six weeks to advise of the progress of the investigation and ascertain if they wish a personal meeting or in accordance with their needs and wishes.
• Contact the family at any stage where there is a significant development in the investigation, unless this would be likely to prejudice any potential prosecution. A personal meeting will be offered unless the family have already indicated they do not wish to attend personal meetings.

145. The difficulty in assessing compliance with this part of the charter is that in the majority of cases the relevant section at the top of the template recording the family's wishes on the type and frequency of contact was not completed. In some cases, the information was contained in the body of the template; in others there was an entry on an administration screen on the COPFS IT system and in some there was no record.

146. Of the 15 cases:

147. There was regular six weekly contact and at times of any significant development or in accordance with the specified wishes of the family in nine cases.

148. In four cases, there was no contact over a prolonged period – in one case five months and in three more than a year.

149. In two cases, there was no record of a meeting being offered to the nearest relatives. In one the initial letter had a link to the charter and within it a reference to being entitled to a meeting but this is only evident if the relative opens the link and reads the charter. To comply with the requirements of the charter the offer of a meeting should be explicitly stated in the letter advising of further inquiries or recorded in the template if discussed by telephone.

FAI

150. COPFS should:

• Inform the bereaved family when a report is to be submitted for Crown Counsel's instructions on whether or not there should be an FAI and to take into account their views in reaching a decision and in how we communicate that decision.
• Inform the bereaved family of Crown Counsel's decision on whether or not there should be an FAI in relation to the death within fourteen days of this decision being made.
• Offer a meeting if Crown Counsel decides that there should not be an FAI to explain the reasons for this decision. These reasons will also be confirmed in writing unless the family have indicated they do not wish to be provided with these.
• Explain what happens if Crown Counsel decide that an FAI should be held and meet with the family to discuss this process if the family wishes.

151. We found that the obligations at this stage were complied with in all cases.

Conclusion of Court Proceedings

152. COPFS should:

• Offer to meet with the bereaved family at the conclusion of any criminal proceedings or FAI and after the determination has been issued to explain the outcome and to discuss any issues arising.

153. We found that the obligations at this stage were complied with in all cases.

New Recommendation

In order to assess compliance with the Family Liaison Charter a record of the wishes of the family should be recorded on the charter template.

154. This would provide a record of the nearest relatives' preferences where contact has to be made with the bereaved relatives by another person where there are staff absences due to illness or leave.

Nearest Relatives and Interested Parties

155. In our thematic review we found that the purpose of the FAI was not always fully understood by nearest relatives. For some it was regarded as a forum to attribute fault or blame and apportion liability to a particular person or organisation, or to raise issues that were not relevant to establishing the circumstances and cause of the death. To assist nearest relatives families, grieving following the sudden death of a loved one, we recommended:

Recommendation 11

SFIU should provide written notification to all participants on the issues COPFS intends to raise at the inquiry.

Recommendation 11

Action Taken

156. This recommendation was superseded by the 2017 FAI rules that specify the type information that must be provided in the first notice.^[57] It includes:

• A brief account of the circumstances of the death, so far as known to the procurator fiscal;
• The identity of the deceased;
• Any issues identified by the procurator fiscal which it is anticipated the inquiry should address;
• Whether the procurator fiscal considers that a preliminary hearing is unnecessary and, if so, the reasons for that view;
• The type of inquiry – mandatory or discretionary and if mandatory, the category of mandatory inquiry; and
• The identity of any person who the procurator fiscal considers might have an interest in the inquiry.

Status: Superseded by FAI Rules