Review: Sudden deaths and FAIs
Former sheriff Douglas J Cusine is impressed by Gillian Mawdsley’s new study of sudden deaths and FAIs in Scotland.
For me, there are two very significant sentences in this impressive book: “The public should be able to understand the role of an FAI…” (para. 2.01) and “It is crucial for all involved in the death investigation process and in undertaking FAIs to remember that sympathy must be extended to all relatives involved.” (para. 13.09).
The author brings a wealth of experience to this book. It begins with a clear explanation of the system for reporting sudden deaths in Scotland, and includes a surprising account of the delay by prison officials in reporting a death in custody.
Chapter 2 introduces the FAI system, setting out when a FAI must be held and when it is discretionary. The latter will often need careful explanation to relatives should the Crown decide not to hold an FAI. A following chapter narrates the history leading to the current 2016 Act (Chapter 4.)
Chapter 5 deals with the importance of pre-inquiry procedure and the issuing of the decision (determination) by the sheriff. Some sheriffs, usefully, provide an “executive summary” which will give the essence of the fuller version and save the media reading time.
Deaths in custody have a chapter devoted to them (Chapter 6), as do deaths abroad (Chapter 8). While there are similarities between Scottish FAI and coroners’ inquiries, there are also marked differences and the author wisely includes a chapter on the system south of the border.
Given the sentences quoted at the beginning, the author deals with family representation and public access to FAI records (Chapters 9, 11). In the concluding chapter (12), the author looks critically at where we are and does not shy away from criticism – and there are critical comments, where appropriate, in other parts, e.g. in Chapter 5 where various cases involving delays are highlighted. These delays have been the subject of comment in SLN and elsewhere, and the Crown are often not portrayed in a favourable light.
One notorious example is that of the young couple whose car went off the A9 in July 2015, where the FAI started only in 2023. To me and many others, this is a disgrace, as we still do not know why a 999 call was not acted on nor what, if anything, has been put in place to ensure, so far as possible, that there is no recurrence – and, equally importantly, relatives will have to relive this tragedy when, perhaps, they have begun to “come to terms ” with their losses.
If there is a problem with a “system”, the sooner an FAI is held the better. Responsible organisations will put their houses in order immediately; others may not and the FAI may be crucial in ensuring that the less diligent do what is needed.
As the author points out, the Crown may decide not to have an FAI if the facts have been aired in other proceedings, e.g. a criminal trial. Sadly, I know of two cases, both in Aberdeen, where FAIs took place despite there having been a criminal trial.
In both cases, the sheriffs upheld a “no case to answer” submission, and the Crown would have adduced all evidence which it considered necessary for a conviction. In both cases, the “FAI” sheriffs (and I was one) were assured that more information would come out. I had reservations, as did my colleague, which proved to be well-founded.
In the other case, my colleague awarded expenses against the Crown to mark what she saw as a waste of court time and unnecessary distress to the relatives. The 2016 Act provides that a sheriff cannot make such an award but the explanation (not the author’s), viz: that the sheriff can control vexatious behaviour at the hearing, is unconvincing if the issue is whether there was an need for an FAI at all.
This is an excellent and clear exposition of the law and practice. My sole comment is that the index could have been fuller. An index should be produced for those who are unfamiliar with the topic, and those in a hurry. It is often best prepared by the author(s). For example the professionally-produced index for a book which I co-authored was a third of the size of what is now the index.
To illustrate my point, the index here lists four places where “expenses” are dealt with, but there should have been a reference to para. 5.85 (the section of the 2016 Act dealing specifically with this). Furthermore, a determination cannot be founded on in either criminal, or civil proceedings, but I struggled to find this in the index (It is in para. 5.86).
This is a minor quibble, but reviewers can be like that!
Sudden Deaths and Fatal Accident Inquiries in Scotland: Law, Policy and Practice by Gillian Mawdsley. Published by Bloomsbury Professional, 323 pp.