Fatal accident inquiries in Scotland: a guide for bereaved families

If someone close to you has died, the Crown Office and Procurator Fiscal Service (COPFS) investigates all sudden, suspicious and unexplained deaths in Scotland, and its Victim Information and Advice service can help with questions, concerns or support. In England and Wales, certain deaths are investigated by coroners under the Coroners and Justice Act 2009 instead; see our guide to coroners' inquests.

This guide explains when an FAI is held, how families take part, what the sheriff's determination covers and how an FAI relates to a compensation claim. It is general information, not legal advice. We are an independent information service, not a law firm.

What a fatal accident inquiry is

An FAI is a public hearing, conducted by a sheriff. When an inquiry is to be held, the procurator fiscal must investigate the circumstances of the death and arrange the inquiry (section 1 of the 2016 Act). Its purpose is to establish the circumstances of the death and to consider what steps, if any, might be taken to prevent other deaths in similar circumstances. It is not the purpose of an inquiry to establish civil or criminal liability.

COPFS says an FAI could take place in a court, another public building or online, and can last less than a day or take weeks. If there is a criminal prosecution following a death investigation, that will usually take place before an FAI.

When an FAI must be held

Under section 2 of the 2016 Act an inquiry must be held into a death in Scotland where:

• the death resulted from an accident in Scotland while the person was acting in the course of their employment or occupation; or
• the person was in legal custody when they died, for example imprisoned or detained in a penal institution or in police custody; or
• the person was a child required to be kept or detained in secure accommodation.

Some deaths connected with offshore activities are treated as having occurred in Scotland (section 5). The Lord Advocate may decide not to hold a mandatory inquiry if satisfied that the circumstances of the death have been sufficiently established in other proceedings, such as criminal proceedings or an inquiry directed by the Health and Safety Executive (section 3).

Discretionary FAIs and deaths abroad

For other deaths in Scotland, an inquiry is held if the Lord Advocate considers that the death was sudden, suspicious or unexplained, or occurred in circumstances giving rise to serious public concern, and decides that it is in the public interest (section 4). COPFS makes that decision at the end of its investigation, always asks for the family's views first and says the family has a right to ask for the decision to be reviewed. If it is decided not to hold an inquiry, the Lord Advocate must give reasons in writing if asked by the spouse or civil partner, a partner who lived with the person as if married, or otherwise the nearest known relative (section 9).

An FAI can also be held into a death outside the United Kingdom of someone who was ordinarily resident in Scotland, if the death was sudden, suspicious or unexplained or caused serious public concern, the circumstances have not been sufficiently established in another investigation, there is a real prospect that an inquiry would establish them, and it is in the public interest (section 6).

The family's role and COPFS timescales

The Lord Advocate must prepare a family liaison charter setting out the information families will receive and the timescales for giving it (section 8). The COPFS Family Liaison Charter, which applies to deaths reported from 1 September 2016, commits to:

• contacting the family no later than twelve weeks after the death was reported, with the offer of a meeting, and then every six weeks while the investigation continues;
• telling the family of Crown Counsel's decision on whether there should be an FAI within fourteen days of the decision, and offering a meeting within fourteen days to explain the reasons if there will not be one;
• applying to the court within two months of a decision to hold an FAI.

Families can take part in the inquiry. Section 11 allows the person's spouse or civil partner, a partner who lived with them as if married, or otherwise their nearest known relative to participate, along with others such as the employer, a Health and Safety Executive inspector or a trade union in a work death, and anyone else the sheriff is satisfied has an interest. COPFS says the nearest relative can choose to have a solicitor represent them.

The determination and recommendations

At the end of the inquiry the sheriff makes a determination setting out when and where the death and any accident happened, the causes, any precautions which could reasonably have been taken and might realistically have avoided the death, any defects in a system of working which contributed, and any other relevant facts (section 26). The sheriff may make recommendations which might realistically prevent other deaths in similar circumstances, but does not have to.

A participant to whom a recommendation is addressed must give the Scottish Courts and Tribunals Service a written response within 8 weeks of receiving the determination, setting out what it has done or proposes to do, or its reasons for doing nothing (section 28). COPFS says determinations are published on the Scottish Courts and Tribunals Service website.

FAIs and compensation claims

An FAI does not decide who is to blame, and a determination is not admissible in evidence, and may not be founded on, in any judicial proceedings of any nature (section 26(6)). A compensation claim therefore runs separately. COPFS says a civil or insurance claim is a separate process, and that if you are thinking about instructing a solicitor, it recommends doing so straight away and not waiting until the end of its investigation.

In Scotland, where a person dies as a result of personal injuries caused by someone else's act or omission that gives rise to liability, relatives can claim damages (sections 3 and 4 of the Damages (Scotland) Act 2011). These can cover loss of support and reasonable funeral expenses, and a sum for things such as grief and sorrow and the loss of the person's society and guidance. The claim must usually be raised within three years of the death, or of the date the relative became aware of the relevant facts, if later (section 18 of the Prescription and Limitation (Scotland) Act 1973), although a court can allow a late claim if it is equitable (section 19A). Our guides to fatal accident claims and making a claim in Scotland explain the claim itself.

Frequently asked questions

Related guides: fatal accident claims, making a claim in Scotland, coroners' inquests, accidents at work and medical negligence in Scotland.

Official sources used for this guide: Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016; COPFS: Guide to Fatal Accident Inquiries; COPFS Family Liaison Charter; Damages (Scotland) Act 2011, s.4; Prescription and Limitation (Scotland) Act 1973, s.18. This guide is general information about the law in the UK, not legal advice; the law can change, so check your own position with a regulated solicitor.