Thematic review of Fatal Accident Inquiries

132. The death of a loved one is a traumatic and distressing event. If the death is sudden and unexplained, it accentuates the distress and heightens an already stressful situation. The involvement of the procurator fiscal at such a time can be confusing and concerning.

Liaison with Bereaved Relatives

133. During the passage of the Bill, one of the recurring themes was inconsistency in the level of communication with nearest relatives - both in relation to the timing and regularity of contact and the amount of information provided. To retain confidence in the investigation and any subsequent FAI, communication must be timely, clear, consistent, empathetic and tailored to the bereaved relatives' needs.

134. The impact of a loved one's death is personal and the reactions of nearest relatives can vary widely. Family dynamics can be complex with different reactions from different family members. Some wish to grieve privately and for any proceedings to be dealt with expeditiously and as discreetly as possible. In eight cases we examined, the nearest relatives chose not to engage with the procurator fiscal and wanted no involvement with the FAI.

Case Review

135. We found evidence of regular contact with nearest relatives in 66 cases (75% of all cases reviewed). The nearest relatives were informed timeously of the investigation by COPFS and kept updated on the progress of the case, including the decision to hold an FAI. There were examples of excellent communication with the case investigator keeping nearest relatives updated on any significant developments, responding to all their queries, seeking their views on whether there should be an FAI and supporting them at the FAI. Regular contact with the nearest relatives, who are often bewildered by the involvement of COPFS, plays an important role in providing reassurance and making the process more bearable.

The case investigator investigating a death at work wrote to the nearest relatives the day after the post-mortem, explaining the role of COPFS in investigating deaths and invited them to get in touch if they had any issues or wished to raise any concerns.

There were regular letters to the nearest relatives keeping them informed of the investigation and offering a meeting when the post-mortem report was received. A further meeting was arranged to discuss the content of a Marine Accident Investigation Branch report.

The investigator advised the nearest relatives of all significant stages during the FAI process, including when the notice intimating the FAI was due to be published, aware that they resided in a small community.

The nearest relatives attended the FAI and expressed satisfaction with the approach taken by the prosecutor. The investigator subsequently wrote to all seven family members providing a copy of the determination.

136. In 14 of the cases examined, we found contact to be irregular and sporadic. While there was early contact, either in writing or by telephone, to advise that the circumstances of the death were being investigated, communication thereafter was intermittent and - in one case there was no contact with a nearest relative for the best part of three years.

137. Lack of contact with the nearest relatives generally mirrored periods of inactivity or when reports were awaited.

Following receipt of a police report involving a death at work, SFIU contacted the deceased's brother, despite the deceased's wife being named as the next of kin in the police report, to advise that the deceased's body was to be released.

Seven months later, the legal representatives of the deceased's wife wrote seeking an update on the investigation. No reply was sent for a further three months - 10 months after the date of the death - when a response was sent apologising for the delay and the failure to provide the information requested. The nearest relatives were advised that the circumstances of the death would require to be aired at a mandatory FAI. A meeting was offered, but declined.

Victim Information and Advice ( VIA)

138. SFIU West and HSD National have a dedicated VIA officer. We found that 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.

Following a criminal trial, a mandatory FAI was held to explore issues regarding the circumstances of the death that had not been the focus of the criminal trial. The VIA officer who had been the constant point of contact during the criminal proceedings, contacted the family to advise of the possibility of an FAI and seek their views. A senior investigator from SFIU became a point of contact for the family, but to provide continuity the VIA officer also retained contact throughout the investigation, providing regular updates. The VIA officer and senior investigator were present during the FAI. On receipt of the determination, the senior investigator met with the family to answer any queries they had regarding the findings of the sheriff.

Family Liaison Charter

139. During the Justice Committee's consideration of the FAI Bill, the Solicitor General advised that COPFS was in the process of formulating a charter which would set out various milestones where families would be given specific information on the progress of the investigation and timescales to provide clarity to families on how and when they would be communicated with by COPFS during deaths investigations.

140. During the passage of the Bill, COPFS produced a draft charter and following consultation with various stakeholders and organisations with an interest in this area, published the charter in February 2016.

141. The charter sets out: how and when initial contact will be made with the nearest relatives in deaths investigations; 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 will be provided in a manner agreed by the nearest relatives and COPFS at the outset. Where a personal meeting takes place or where 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.

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

143. By introducing the charter, COPFS has demonstrated a commitment to the nearest relatives to keep them informed of progress at specific stages of the investigation, in a manner suitable to them. This should address the issue of irregular and sporadic contact identified in our case review.

144. It does not, however, address the frustration experienced by some bereaved relatives caused by a lack of a single point of contact to provide information and support. This arises due to cases being re-allocated and the absence in many FAIs of a referral to VIA.

145. We recognise that the fluidity of staff and unpredictable absences may inevitably result in changes of personnel, but given the relatively low number of FAIs, COPFS should endeavour to provide a single point of contact for the nearest relatives in all FAIs.

Recommendation 10

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

Participation of the Nearest Relatives and Interested Parties

146. The spouse of the deceased, or the nearest relative, is entitled to participate in inquiry proceedings. ^[66] In 42 cases examined, the nearest relatives chose to attend and participate in the FAI or obtained legal representation. In 17% ^[67] of FAIs reviewed, we found late intimation by the nearest relatives that they wished to participate in the FAI resulted in proceedings being adjourned or delayed.

147. 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 regarding matters that were not relevant to establishing the circumstances and cause of the death. Examples of issues that the nearest relatives wished to raise at FAIs included:

• General conditions in prisons;
• Treatment received by the deceased in prison;
• Medical treatment received by the deceased for injuries or illness unrelated to the cause of death and;
• Procedures for prisoners at risk when there was no evidence of depression or suicidal thoughts expressed by the deceased.

148. It is understandable that families, still in shock and grieving following the sudden death of a loved one as a result of a crime or tragic circumstances, will struggle to absorb and understand the system for the investigation of deaths and FAI proceedings.

149. We found that early contact by SFIU to advise that an FAI was likely was typically followed up with a letter to the nearest relatives advising that they were entitled to participate in the inquiry and providing information on likely dates for the inquiry. There were variations in the information provided, but in general we found that there was minimal explanation of:

• The purpose of the FAI;
• The core issues likely to be explored at the FAI;
• The process and procedures that will apply at court; and
• Information and advice on obtaining legal representation.

150. We heard from legal representatives who appear on behalf of interested parties that they are often unclear on the issues that will be raised at the FAI. We were advised that the application to the court seeking authority for an FAI is not routinely disclosed by COPFS and that they are often unsighted on the interested parties notified by SFIU, although it was acknowledged that they had never requested a copy of the application or information on interested parties.

151. As the organisation responsible for investigating and conducting the FAI, COPFS is best placed to advise the nearest relatives of the purpose of the FAI and the issues likely to be explored. To assist the nearest relatives and provide greater clarity on the purpose of the inquiry, we heard that it would assist all participants if there was written notification of the following information:

• A brief narration of the circumstances of the death;
• The purpose of the FAI; and
• The issues intended to be explored.

152. It was advocated that this information could be incorporated into the application for the FAI or issued as a separate document accompanying the correspondence advising potential participants of the FAI. The provision of this type of information was compared to the narrative setting out the criminal conduct in an indictment or a complaint in criminal proceedings. If any of the participants wished to raise other issues at the FAI, this could be canvassed at the preliminary hearing to allow early adjudication by the sheriff on whether the issues were relevant and would assist in ascertaining the circumstances of the death.

153. The provision of such information would also provide bereaved relatives with a document that they could digest in their own time and use to inform discussion with legal representatives, if they so wished.

154. This approach is consistent with the undertaking given to the Justice Committee ^[68] by the Solicitor General to provide notification of all of the issues intended to be raised at the inquiry in the application to the court and to embed this practice as part of the new preliminary hearings system.

Recommendation 11

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

155. In most cases the interests of the bereaved relatives and the public interest coincide, but there are occasions where the nearest relatives wish to pursue a different approach or disagree with the outcome of the investigation by COPFS. Where public interest considerations differ from those of the nearest relatives, it presents difficulties for the prosecutor and can result in a breakdown of the relationship between the nearest relatives and the procurator fiscal.

156. Where there is a divergence of views between COPFS and the nearest relatives, it is preferable for the nearest relatives to obtain independent representation. To facilitate independent representation, SFIU should provide early notification of the issues it intends to explore at the FAI and enclose guidance to the nearest relatives on obtaining legal representation, if they wish other issues to be explored.

157. In order to apply for legal aid and allow any legal representative sufficient time to prepare for the inquiry, the guidance should recommend that if they chose to be legally represented they should instruct a solicitor on receipt of the intimation of the dates for the preliminary hearing and the FAI.