Thematic review of Fatal Accident Inquiries

176. While the police are the main source of reports submitted to COPFS, there are other agencies that have particular technical expertise to investigate and report specific types of deaths. Agencies involved in investigations that may result in an FAI include HSE, MAIB and AAIB. COPFS is dependent on the outcome of such investigations prior to considering the possibility of criminal proceedings or an FAI.

Health and Safety Executive and Local Authorities

177. HSE and Local Authorities ( LAs) are responsible for the reporting of health and safety breaches to COPFS, including those that result in fatalities. The investigation seeks to determine underlying causes and ensure that action has been taken by the duty holder to manage any ongoing risk and prevent similar incidents occurring in the future. Following investigation, HSE or the LA will submit a report to HSD with a recommendation on whether there is sufficient evidence for a prosecution.

178. The FAI legislation provides that the Lord Advocate can exercise discretion not to hold a mandatory FAI, if the circumstances have been sufficiently aired during criminal proceedings. ^[79] On receipt of a report from the HSE or a LA, HSD considers the evidence and submits a report to Crown Counsel seeking an instruction on whether there should a prosecution and/or whether there should be an FAI. If all the salient facts are likely to be addressed in the criminal proceedings, COPFS can dispense with holding an FAI, alleviating the need for witnesses and nearest relatives to attend court on a second occasion. The written submission by COPFS to the Justice Committee during the passage of the Bill, advised that in 59% of cases, involving deaths in the course of employment reported to HSD, where there were criminal proceedings which had concluded in the last four years, no mandatory inquiry was held as the circumstances of the death had been fully addressed in the criminal proceedings. ^[80] There are some cases where wider issues regarding the circumstances of the death are not explored in the criminal proceedings and require exposure at an FAI, such as defects in working practices.

179. Historically, issues over which organisation was to lead certain investigations resulted in delays. Over recent years there has been a concerted effort to improve the working relationship between HSE, the police and HSD. When HSE or Local Authorities and/or the police are involved in investigating work-related deaths, including deaths of non-employees, they follow the principles contained in the Work‑Related Deaths Protocol for Scotland ( WRDPS), which sets out the framework for effective liaison between these parties (and others) when investigating such deaths. The protocol clarifies that the police has primacy for investigations where corporate homicide is a consideration. For all other investigations involving potential breaches of health and safety law, HSE assumes primacy.

180. HSE will decide if the circumstances of the death fall within their remit which flows from the regulatory framework of the Health and Safety Act 1974. There have been cases where HSE has declined to investigate as the circumstances are not considered to fall within their area of responsibility. Examples include road traffic deaths at work or deaths within custody or care settings where there is no evidence of systematic failures.

181. The absence of any regulatory body to investigate such cases presents difficulties as the police may not have the relevant expertise.

Timescales for Investigation of Health and Safety Cases

182. COPFS has no authority to direct HSE to carry out investigations nor does it have any control over timescales for the submission of reports.

183. HSE has an internal target to investigate and submit reports to COPFS within 12 months of receiving primacy. Of the seven cases in our review, where HSE was the main investigative body, five cases were reported within the 12 month target. In the remaining two cases, the HSE report was submitted 17 months and 15 months after HSE acquired primacy. Both cases involved some complexity; in one there were technical issues requiring specialist expert analysis and the other involved legal considerations regarding liability between different employers.

184. In five of the cases reported by HSE and dealt with by HSD, at least a year elapsed after receipt of the report from HSE to the start of the FAI. In three cases, there were protracted discussions as to whether there was sufficient evidence to prosecute before an FAI could be considered; in two of the cases, HSE reversed an initial recommendation to prosecute following further discussion with HSD and HSE colleagues. One case involved complex technical issues and a number of expert witnesses were commissioned by various participants. In the remaining case, an interval of 19 months before the case was allocated was the primary reason for the delay between the date of death and the start of an FAI.

185. In addition to the seven cases reported by HSE, they provided supplementary reports at the request of COPFS in 14 cases in our review. In 2 out of the 14 cases, the supplementary report took longer than 12 months to submit.

186. In a follow-up report on an inspection of the HSD published by the Inspectorate last year, we commented favourably on the enhanced effectiveness of HSD as evidenced by a significant increase in the throughput of cases and improved working relationships between HSD and specialist reporting agencies. ^[81]

Air Accidents Investigation Branch ( AAIB), Marine Accident Investigation Branch ( MAIB) and Rail Accident Investigation Branch ( RAIB)

187. Investigations involving air, rail and marine accidents are fortunately not frequent but the nature of such incidents, with potential multiple fatalities, are high profile and of considerable public concern. Specialist investigatory bodies with particular expertise in these areas are responsible for investigating the cause of such incidents.

188. The Air Accidents Investigation Branch investigates civil aircraft accidents and serious incidents within the UK, its overseas territories and Crown dependencies. It also provides assistance and expertise to international air accident investigations and organisations - most recently AAIB investigators assisted Norwegian investigators with the investigation into the cause of the Super Puma crash in May 2016.

189. The AAIB inspections are independent and impartial and often involve complex technical and aviation issues.

190. The primary aim of the AAIB is to improve aviation safety globally by determining the cause of air accidents and serious incidents, and making safety recommendations intended to prevent recurrence - it is not to apportion blame or liability. The AAIB does not investigate for, or report to, prosecution authorities. To encourage co‑operation and candour, AAIB do not identify witnesses who have provided information and it has a statutory obligation not to disclose statements obtained to third parties, including prosecutors.

191. To alleviate public anxiety and to highlight any potential safety issues that require to be addressed immediately, the AAIB may release a special bulletin at an early stage providing preliminary findings of their initial investigation. At the conclusion of the investigation, AAIB publishes a report containing recommendations directed to the appropriate body or person.

192. The MAIB has a similar role to that of the AAIB for marine accidents within UK waters and accidents involving UK registered vessels worldwide and the RAIB for rail accidents. Akin to AAIB, their remit is to improve safety and prevent similar accidents occurring rather than to apportion blame or liability. Findings and recommendations made by AAIB, MAIB and RAIB are often adopted by sheriffs in their determination following an FAI.

193. Prosecutors are reliant on the technical and specialist expertise of the AAIB, MAIB and RAIB to identify the cause of any accident which will in turn inform the direction of any criminal investigation. As with HSE investigations, COPFS has no authority to direct these investigations. While, the AAIB, RAIB and MAIB aim to conduct investigations involving fatalities within 12 months, this is dependent on the complexity of the case and the ever changing landscape of priorities they face. Cases where criminal proceedings or an FAI are in contemplation tend to fall within the complex case category.

194. The case involving AAIB from our case review is such an example. It involved the investigation into the cause of the crash of a Super Puma helicopter in Aberdeen. The investigation was complex and required detailed examination of evidence of a technical nature. While AAIB provided an early indication of their findings in a press release published three months after the accident, the full investigation resulting in their final report took 31 months. Following consideration of the AAIB report and a thorough investigation by COPFS, including commissioning expert reports, a decision was taken to hold an FAI. The FAI commenced almost five years after the incident.

195. There were two cases investigated by MAIB in the case review. In one case, the MAIB submitted the investigation report to COPFS within six months of the date of the death and in the other within 12 months. There were no cases involving the RAIB in our case review.

196. The divergence in the role and purpose of investigations by COPFS and these specialist investigative agencies can complicate criminal investigations. AAIB, RAIB and MAIB inspectors will not provide opinion evidence, but will give evidence on factual matters referred to in their reports. The inability of COPFS to access statements obtained by these specialist agencies can result in duplication of investigation with the police obtaining statements from witnesses on behalf of COPFS who have already given statements to AAIB, RAIB or MAIB. In the investigation into the Super Puma crash, the manufacturer of the helicopter provided details of relevant witnesses to COPFS who then instructed the police to obtain statements.

197. To assist with the investigation of such cases, COPFS, the AAIB, RAIB, MAIB and the police have agreed a Memorandum of Understanding recognising the different roles of each organisation and setting out arrangements to ensure effective communication and liaison between all parties during the investigation of an incident or accident. The MAIB, RAIB and AAIB provide witnesses with a copy of their statement and will advise witnesses that they can provide a copy to the police or COPFS, if they so choose.

198. We are aware of public concern regarding delays in FAI proceedings where there have been investigations conducted by authorities such as AAIB. The absence of any authority for COPFS to direct such investigations or influence the priorities of other agencies and the different purpose of the investigation conducted by AAIB and similar agencies that inhibits their ability to share statements and information clearly impedes on the ability of COPFS to progress such cases. While COPFS may undertake some ancillary investigation, the priority is to ensure that any investigation is thorough and of the highest standard and decisions on whether there should be criminal proceedings or an FAI will be influenced and dependent on the findings of the specialist investigative body.