The Role and Management of FAIs
199. FAIs have played a crucial role over the years in exposing failings and defects in working practices and systems, identifying precautions to avoid deaths occurring in similar circumstances and providing oversight on the way authorities have dealt with the deceased while in legal custody.
200. FAIs provide a public airing of the circumstances of a death to allow relatives to hear from those involved what happened so that they have a better understanding of the full circumstances. They also ensure that reasonable measures to prevent a recurrence are identified and that lessons are learned by those with an interest in and the means of preventing such a recurrence
201. The public exploration of the tragic circumstances that have resulted in a death have been instrumental in driving up safety standards across a wide range of working environments.
202. Those held in legal custody are particularly vulnerable. The holding of an FAI into such deaths ensures that there is public scrutiny of the circumstances of the death and on the way in which the state authorities have dealt with the deceased whilst in legal custody. This is important for the maintenance of public confidence in the authorities.
203. There is greater emphasis than ever on accountability but it often goes hand in hand with seeking to hold a person or organisation responsible or culpable. The FAI is a forward looking vehicle - it is a fact-finding procedure rather than fault‑finding. It seeks answers not only for bereaved relatives but the wider public.
204. Witnesses cannot be compelled to answer any questions which may incriminate them and the sheriff's determination may not be founded upon in any other judicial proceedings. 
205. This is intended, in part, to encourage a full and open exploration of the circumstances of the death in an environment where witnesses are able to give frank evidence without concern that it will be used in any other proceedings.
206. However, this does not mean that the sheriff is precluded from reaching findings which may infer fault where it is proper to do so. In the words of I HB Carmichael: "The whole object of impartial public inquiry is to get at the truth, to expose any fault where fault is proven to exist, and in all cases to see to it so far as humanly possible that the same mistake, when it arises through fault or any other reason, is not made in the future". The public interest, in whose name inquiries are held, requires and deserves no less. 
207. We heard from a wide range of persons who had recent experience of FAIs that they found the inquiry to be adversarial and, whether intended or not, it was seen as a vehicle to seek to apportion blame and culpability for the death. Employers from different occupations advised that the adversarial atmosphere of some inquiries while conducted in a public forum had adversely impacted on the well-being of staff involved and on their colleagues by association.
208. During the passage of the Bill, the Justice Committee reported , "that it was struck by the lack of clarity surrounding the purpose of an FAI and a lack of understanding of the intention of inquiries held in the "public interest"."  This resonates with our findings.
209. To emphasise the purpose of FAIs, the Act includes a provision explicitly stating that the purpose of an inquiry is to establish the circumstances of the death, and consider whether any precautions could be taken to prevent other deaths in similar circumstances.  To reinforce the inquisitorial nature of an FAI, it narrates in the body of the Act that it is not the purpose of an FAI to establish criminal or civil liability. 
210. These provisions are to be welcomed. The FAI is a powerful vehicle to expose systematic failings, unsafe working practices and to safeguard and protect those in held in legal custody. A process which is adversarial and combative is counter‑productive - it is likely to inhibit frankness and candour which in turn will diminish the impact of the inquiry and its outcome.
211. As highlighted lengthy delays also impact on the value and relevance of inquiries.
212. Echoing sentiments expressed in the Cullen Review, some representatives who regularly appear on behalf of interested parties in FAIs, suggested that adopting a more informal approach, analogous to that used in employment tribunals, and dispensing with the wearing of wigs and gowns and participants being seated may lessen the "adversarial" nature of inquiry proceedings.
213. As advocated in this report, a more systematic approach to clarifying the purpose and scope of the inquiry; proactive sharing of evidence, including expert reports, to crystallise the issues that are likely to be disputed; and early adjudication on the relevancy of the issues raised by interested representatives may assist in re‑emphasising the inquisitorial role of the inquiry.
214. We recognise that this approach is being implemented in some cases, but its application is patchy. As the Right Honourable Lord Gill stated in his evidence to the Justice Committee:  "In any inquiry of this nature, effective case management is the key to the whole thing. There has to be effective case management in the preparatory stages, and then, once the inquiry starts, efficient and competent chairmanship is required to ensure that the inquiry addresses the relevant points".
215. The new Act requires a preliminary hearing to be held before every FAI unless the sheriff dispenses with the requirement.  The preliminary hearing is critical to both the efficient management of FAIs and managing the expectations of the participants.
216. Preliminary hearings were held in 84 of the 88 cases in our review. Feedback on the importance of the role of preliminary hearings to the efficient running of the FAI was unanimously positive. The following case study illustrates the positive impact of proactive management at the preliminary hearing.
At a preliminary hearing in an FAI relating to a death in custody, the sheriff sought to be addressed on:
- The nature of the evidence, in general terms, of the witnesses;
- The issues that interested parties intended to raise;
- Whether the executions of service for the interested parties were served;
- The status of the witness citations; and
- Whether COPFS intended to examine further an expert witness.
The nearest relatives intimated that they wished to explore the police dealings with the deceased and the medical treatment that he obtained prior to his death. It was emphasised that the focus of the inquiry was the cause of the death.
At the FAI, while there was evidence of the police dealings with the deceased up to and at the time of his death, the main focus of the inquiry was the cause of death and evidence was heard from a toxicologist and a pathologist. The consequences of the use and abuse of various drugs was pivotal.
217. The management of FAIs at Glasgow Sheriff Court was widely commended by those who have regular contact with FAIs.
At Glasgow Sheriff Court, to improve efficiency of the usage of court time for FAIs and identify and plan future business, a number of new measures have been implemented:
- A week of court time is allocated each month to hold FAIs. If it is not required, SCTS is advised and the allocated time is diverted back to criminal or civil matters;
- Where possible, the sheriff meets with the depute conducting the case when the application to hold an FAI is lodged, facilitating early identification of the nature of the inquiry and issues that may arise;
- The sheriff and depute engages with the Clerk of Court to obtain dates for an early preliminary hearing;
- Where possible, the sheriff identified for the FAI will conduct the preliminary hearing - if this is not possible, the outcome of any issues raised and any actions instructed by the sheriff at the preliminary hearing are recorded in the court minutes;
- If there is scope to agree evidence, the sheriff adjourns the preliminary hearing to allow all parties to identify areas of agreement and contention.
Overall, this proactive approach has reduced the number of FAIs waiting to commence and substantially increased court usage.
218. The re-iteration of the purpose of FAIs in the Act, supported and underpinned by court rules designed to reinforce that purpose by focussing on the agreement of non‑contentious facts and encouraging proactive management of preliminary hearings, including early clarification of the issues that require to be examined, should assist in re-emphasising the public interest ethos of FAIs. To ensure FAIs continue to fulfil the important function that they have served requires all those involved, including COPFS, representatives of all participants and the judiciary to foster an environment that encourages transparency and frankness.
Email: Carolyn Sharp, email@example.com