Thematic review of Fatal Accident Inquiries

Analysis of Case Review

64. We examined 88 cases between 2012/13 to 2014/15, where there had been a preliminary hearing and the FAI had concluded, representing 100% of all discretionary FAIs ^[32] and 54% of all mandatory FAIs. ^[33] The sample included 35 mandatory cases relating to deaths while in legal custody and 35 relating to deaths while in employment. ^[34]

Chart 7 provides a breakdown of the cases examined by type of FAI and SFIU divisions.

Chart 7 - FAI Case Review ^[35]

65. Table 1 illustrates the average number of working days that elapsed between various stages from the date of death to the start of the FAI.

Table 1 - Average Number of Working Days

66. The timeline for concluding cases where there was a substantive criminal investigation prior to holding an FAI tends to be significantly longer than for cases where there is no such consideration. ^[44] To provide a more representative timeline, we measured the time elapsed between the various stages of investigation, excluding such cases.

67. The findings show that HSD and discretionary cases take longer to investigate than mandatory cases. This reflects the tendency of such cases to involve more complex issues and, in some cases, reliance on external reporting agencies.

Effectiveness of Investigation

68. To evaluate the impact of SFIU, we measured timelines in the following categories:

• All cases ^[45]
• Cases dealt with by local procurator fiscal offices prior to operational responsibility transferring to SFIU on 2 April 2012 ( PFO cases)
• Cases initially reported to and dealt with by local procurator fiscal offices and then transferred to SFIU after 2 April 2012 (transition cases)
• Cases reported to and dealt with by SFIU ( SFIU cases)
• Cases reported in 2014/15

69. Table 2 shows the average number of working days that elapsed between the various stages from the date of death to the start of the FAI.

Table 2 - Average Working Days (excluding HSD cases)

70. The findings demonstrate a positive trend with the average number of days between the date of death to the start of the FAI reducing from 1,003 days (3.9 years) for cases dealt with by local procurator fiscal offices, to 829 (3.2 years) during the transition period, to 316 (1.2 years) for cases dealt with by SFIU and 186 days (0.7 years) for SFIU cases dealt with in 2014/15.

71. The results found in the time taken to progress cases dealt with by procurator fiscal offices should be taken with a 'health warning', in that five out of the seven cases examined related to discretionary FAIs which generally take longer and one case took over five years from the date of death to the start of the FAI.

72. In April 2012, SFIU took over operational responsibility for deaths investigations. Almost all active deaths investigations, including cases of some age, were transferred from local procurator fiscal offices.

73. SFIU operated a policy of prioritising the oldest and newest cases in an attempt to work through the backlog and ensure that new cases were dealt with effectively. This approach resulted in periods of inactivity in a significant number of cases, including some where the investigation had been substantially progressed, prior to transferring to SFIU.

74. This is evidenced by cases during the transition period, ^[54] taking on average 765 days from the date of death to preliminary hearing compared to 276 days for cases progressed by SFIU ^[55] and 150 days for the five cases dealt with in 2014/15. ^[56]

75. The case study below exemplifies the type of delay that arose.

In July 2011, the local procurator fiscal's office received a report of the death of a prisoner who had committed suicide. As the death occurred in custody, a mandatory FAI was required. Initial lines of inquiry were instructed and statements, the post‑mortem report and other productions were submitted by the police within a couple of months of the death. The nearest relatives were contacted and advised of the ongoing investigation.

In the three months prior to the case transferring to SFIU in April 2012, there was no evidence of any other substantive work being undertaken. Following the transfer to SFIU, there was another period of inactivity until February 2013 when a report was sent to SFIU National.

In early 2014, several witnesses were interviewed and thereafter an application was made to the court for the authority to hold an FAI. In April 2014, the FAI was commenced - a timeline of just under three years.

Given the case was non-contentious and relatively straightforward, the delays - where the case was not progressed - are inexplicable. The determination was issued by the sheriff two days after the FAI concluded.

76. The findings confirm that the specialisation of investigation of deaths has increased efficiency and improved the service provided by COPFS. They also highlight a lack of robust and effective change management arrangements to progress cases whilst the move was made to centralise the investigation of deaths. A more incremental transition between the procurator fiscal offices and SFIU, in conjunction with a proactive triage system to identify straightforward cases where little investigation was required, was likely to have enabled more cases to have been progressed expeditiously.

Reporting of Deaths and Initial Inquiries

77. We found that 91% of case reports were received from reporting agencies in three working days or less. In three cases where there was a delay in the submission of the report, one was due to the body of the deceased not being discovered until sometime after the death and in the other two cases, the reporting agency was in constant discussion with COPFS regarding the investigation and lines of inquiry being pursued.

78. On receipt, cases were progressed efficiently. In 81% of cases examined, SFIU divisions instructed preliminary inquiries, such as ordering statements, photographs and productions, on receipt of the death report or within 10 working days or less.

79. We found delays by the reporting agency to respond to requests to obtain additional information in 12 cases. Of these, seven cases were reported by the police and five by HSE. While the police experienced difficulties tracing witnesses in one case, in the others there were substantial delays in submitting statements and productions, despite numerous reminders from COPFS. In two of the seven cases reported by HSE, the submission of the final report took significantly longer than 12 months after the date of death.

Allocation of Cases

80. We found significant variations in the time taken to allocate cases to an investigator with the average being 153 days from instructing initial inquiries. ^[57] The variations arose due to:

• Different practices in the allocation of cases by the SFIU divisions - SFIU West await the receipt of statements and the completion of other inquiries prior to allocating cases, resulting in cases being allocated some weeks or, on occasion, months after the post-mortem. In contrast, SFIU East and North divisions allocate cases within days of the post-mortem; and
• The time required to complete initial lines of inquiry in more complex Health and Safety Division and discretionary FAIs, prior to the case being allocated to prepare for an FAI.

81. The different practices between the SFIU divisions and HSD to allocating cases skews the data and limits our ability to draw any conclusions based solely on the timeline to allocate cases. There were, however, examples where delays in allocating cases resulted in the FAI proceedings being unnecessarily protracted as demonstrated in the following case studies.

A case involving a death in custody where the deceased died of natural causes was reported to the local procurator fiscal office in January 2012. The post-mortem report and statements were submitted by late February 2012. There was no further work undertaken until the case was allocated in October 2012 - nine months later.

Following allocation, the case was dealt with expeditiously with an application for authority to hold an FAI being submitted to the court in February 2013 and the preliminary hearing taking place in March 2013. The case was non-contentious and the circumstances of the death were agreed by joint minute. ^[58]

HSE submitted a report in 2010 regarding a death at work. Further inquiries were instructed by HSD and HSE submitted additional statements and reports in late 2011. 23 months elapsed before the case was allocated to an investigator to progress. Once allocated, the investigation concluded quickly with the FAI being held within three months. Many of the facts surrounding the death were agreed in a joint minute, significantly shortening the FAI.

82. Prior to SFIU being introduced and during the transition period when cases were transferred to the newly formed SFIU, there was a high turnaround of staff resulting in frequent re-allocation of cases. Cases were re-allocated in 46 out of the 88 cases we examined. 35 of the 46 cases occurred during the transition process. The following case study exemplifies the lack of continuity.

A death involving medical issues was reported to the local procurator fiscal office in October 2006. Following receipt of the report, eight principal deputes had involvement with the case, variously instructing different inquiries and commissioning reports until it was allocated to a senior depute to prepare for the FAI in November 2010.

The case was re-allocated in January 2011 to another senior depute, then again in November 2011 and for a third time in March 2012. During this period the case was progressed by a case investigator.

During the course of the investigation, there were a number of protracted periods of inactivity. In total, there were 13 members of staff who interacted with the case. The FAI finally commenced in January 2013, some six years and three months after the date of death.

83. A lack of ownership and continuity often results in an unfocused investigation, work being duplicated and undoubtedly impacts negatively on the relationship with the nearest relatives. Early allocation of cases and continuity of investigator counters such difficulties with positive outcomes as demonstrated in the following case study.

A mandatory FAI involving a death at work was reported to SFIU in January 2014. Statements and reports were ordered the day after the case was received by the case investigator. A meeting took place between the case investigator and the legal representatives for the nearest relatives in February 2014 to discuss issues and identify any concerns. There was continuing regular contact with the nearest relatives throughout the investigation.

The statements and reports requested were submitted within a month and a first stage report was sent to Crown Counsel less than two months after the date of the death. CCI to hold an FAI were received within three weeks and an application was made to the court to hold the FAI the following week. All non-contentious evidence, including the pathology findings was agreed.

The FAI was scheduled for September 2014 and concluded in one day. Overall, the case was dealt with efficiently and expeditiously and attracted positive feedback from the nearest relatives.

84. The significant reduction in time between instructing initial inquiries and allocating cases by SFIU is a positive development.

Investigation and Preparation of FAIs

85. 70% of cases ^[59] examined took longer than 18 months from the date of death to the start of the FAI. This includes 36 mandatory FAIs, 17 discretionary FAIs and all nine cases investigated by HSD. ^[60] 44 (71%) of these cases were dealt with in whole, or in part, by the local office prior to SFIU being established. Only 10 of the 34 (29%) cases progressed by SFIU took more than 18 months demonstrating a significant improvement.

Disclosure

86. We found only one case where an FAI was delayed due to a failure to disclose information timeously.

Mandatory FAIs

87. We found initial work was instructed timeously in all cases. Delays, thereafter, were often due to a combination of a number of factors but the main contributory reasons for delays were as follows:

• In 19 cases there were significant delays in allocating cases for investigation, a number of cases were re-allocated due to workload or staff leaving the unit and, in others, there were lengthy periods of inactivity with no obvious explanation;
• In three cases, there was significant HSD involvement prior to the case being transferred to SFIU;
• In four cases, there were significant delays in obtaining reports and information from reporting agencies and other investigatory bodies;
• In three cases, there were lengthy periods of inactivity following the transfer of the cases from procurator fiscal offices to SFIU;
• In the remaining seven cases, there were differing reasons including late intimation of issues that the nearest relatives wanted investigated, a change of direction of the investigation requiring additional inquiries to be carried out and significant delays in receiving statements and productions from the police due to a specialist toxicology machine being broken delaying confirmation of the cause of death.

Discretionary FAIs

88. On average discretionary FAIs took 4.2 years between the date of death to the start of the FAI. 11 discretionary FAIs concerned an examination of the medical treatment received by the deceased. In the remaining six cases, there had been a criminal prosecution or an extensive criminal investigation.

89. All of the cases involved complex issues, requiring expert reports to be commissioned. Cases requiring expert evidence are by their nature more complex and often contentious, with evidence and conclusions being disputed, which in turn, can lead to further experts being instructed. Cases with multiple experts also present logistical difficulties, including identifying dates when all parties are available to attend the FAI.

90. Other factors that contributed to the delay in progressing these cases included:

• Difficulties in locating some witnesses;
• Delays in allocating cases;
• Late notification of the FAI by COPFS to potential interested parties; and
• Delays in obtaining additional information from the police - in part due to difficulties in tracing witnesses.

Impact of Delays

91. Lengthy intervals of unexplained delays prior to the start of an FAI adversely impacts on:

• The momentum of investigations and the operational capacity of investigating agencies - investigations characterised by lengthy intervals with intermittent requests for further inquiries to be undertaken run the risk of becoming fragmented and lacking continuity, particularly if the investigators have moved on to new investigations;
• The well-being of potential witnesses for whom the prospect of the inquiry "hanging over them" is a source of anxiety and concern;
• The confidence of the nearest relatives and the public; and
• The quality of the evidence and, in some cases, the purpose of the FAI.

In a determination relating to a death in custody, the sheriff criticised a delay of almost three years that had elapsed after the death of the deceased to the start of the inquiry, stating:

"Understandably the memory of many witnesses was affected by the length of time that has elapsed since the deceased's death…I have little doubt that had the inquiry been held timeously, witnesses' memories would have been fresher, particularly in respect of critical evidence about the interaction between the paramedics, the deceased, and the police".

"The purposes of this inquiry were, inter alia, to identify reasonable precautions which might have prevented his death, to consider defects in systems of working in place at the relevant time and generally to overview working practices with a view to future improvement. The delay in holding this inquiry has undermined these purposes."

92. In contrast to criminal proceedings, there are no legal time limits governing FAIs. During the passage of the Bill, some parties advocated the introduction of time limits by which an FAI had to be held and others advocated the introduction of an early hearing system for mandatory inquiries, to provide families with information on the progress of the investigation and to provide some judicial management.

93. The introduction of time limits was not endorsed primarily due to the wide variety of circumstances that may require to be investigated, including reliance on specialist technical expertise and the need for criminal proceedings to take precedence. The commitment by COPFS to introduce a family liaison charter setting out information to be made available to families and timescales for the giving of information obviated the need for an early hearing system. The Act enshrined the requirement for the Lord Advocate to prepare and publish a family liaison charter.

94. We acknowledge that delays in progressing FAIs are reducing and the management of FAIs by SFIU has significantly improved. However, the review shows that mandatory FAIs dealt with by SFIU, many of which are not complex, take on average 14 months from the date of death to the start of an FAI. In comparison in solemn criminal proceedings, the trial must commence within 140 days of the accused being remanded or 12 months after the accused's first appearance at court.

95. An organisation that seeks to deliver a sensitive, responsive, and thorough investigation, that meets public expectations and takes account of the well-being of potential witnesses involved in such investigations, must ensure that the investigation of deaths that may result in criminal proceedings or an FAI are afforded the highest priority.

96. To reflect that priority, COPFS should introduce an internal target for progressing mandatory FAIs. We recognise that the over-riding requirement is for a thorough and detailed investigation and that some cases will require more time than others, for example, some HSE investigations into deaths that occur in employment and those involving criminal proceedings. However, an internal target for the commencement of the FAI after the receipt of the death report would impose more focus and rigour when dealing with such cases.

Recommendation 4

COPFS should introduce an internal target for progressing mandatory FAIs.

Application for an FAI

97. COPFS is reliant on SCTS to allocate court time and dates for the inquiry. Historically, there were difficulties in obtaining court time due to the pressure of other court business. This was more acute if the FAI was estimated to take a few weeks to conclude.

Discussion commenced with SCTS to allocate court time for a three week period in December 2011. The initial dates identified in April 2012 did not suit the nearest relatives and due to a lack of available courts due to the pressure of other business, FAI dates were offered in August or September 2012. It was eventually agreed to allocate dates in late October 2012 with a preliminary hearing set down for September 2012. At the preliminary hearing, the FAI was adjourned again as the nearest relatives indicated they wished to get an additional report. The FAI was then adjourned for another three months due to the sheriff being unavailable.

The FAI commenced in May 2013. After hearing evidence for two weeks, it was adjourned due to the unavailability of an expert witness on behalf of the nearest relatives. Further difficulty was experienced securing dates that suited the legal representatives for the nearest relatives and one of the interested parties. Dates were eventually identified in December 2013. Again, due to pressure on the diaries of the interested parties the hearing of submissions was postponed until March 2014, some 10 months after the commencement of the FAI.

98. More recently FAIs have been afforded greater priority in the SCTS timetable. Our case review shows a decrease in the time between presenting the application to the court for the authority to hold an FAI and the preliminary hearing. We found that SFIU staff are in regular contact with Sheriff Clerks regarding the allocation of dates and with the exception of inquiries that are likely to take some time or involve logistical difficulties, court time is made available within a reasonable timescale.

99. As highlighted in our review, there are some recurring factors identified as adding delay, including the possibility of criminal proceedings, the use of expert witnesses, reliance on external reporting agencies and late intimation of issues and participation by nearest relatives and interested parties. We undertook further analysis of cases with these features to ascertain their impact and identify any remedial actions.