Public inquiries: guidance for Ministers and officials

Other types of inquiry

Fatal Accident Inquiries

The normal form of inquiry into a death or deaths in Scotland is an inquiry under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (‘the 2016 Act’), commonly referred to as a fatal accident inquiry or FAI.

FAIs are specialist inquiries held in the sheriff courts quite routinely and they are considerably cheaper to the public purse than 2005 Act inquiries. The purpose of an FAI is to establish the circumstances of the death and consider what steps, if any, might be taken to prevent other deaths in similar circumstances. A single FAI may be held into more than one death, even where the deaths were in different sheriffdoms or sheriff court areas. FAIs, like other forms of inquiry, are inquisitorial rather than adversarial, they are therefore very well suited to inquiring into deaths that are sudden, suspicious, or unexplained, or that otherwise occurred in circumstances giving rise to serious public concern.

The Lord Advocate is the head of the system of investigation of sudden, unexpected and suspicious deaths in Scotland, as well as for the prosecution of crime. These are functions performed independently of any other person. Where a death is reported to the Crown Office and Procurator Fiscal Service (COPFS), procurators fiscal, acting on behalf of the Lord Advocate, consider whether a death requires further investigation, attempt to ascertain the cause of death, and consider whether criminal proceedings and/or an FAI are appropriate.

• Some 11,000 sudden, suspicious or unexplained deaths are reported to COPFS each year.
• COPFS carry out death investigations in around half of these cases. Some of these will result in criminal proceedings.
• 50-60 FAIs are conducted each year.

The 2016 Act makes an FAI mandatory in the cases of deaths which occurred in Scotland in legal custody, the death of a child required to be kept or detained in secure accommodation, or as a result of an accident that occurred in the course of employment or occupation. Other FAIs are held on a discretionary basis where the Lord Advocate considers that the death was sudden, suspicious, or unexplained or occurred in circumstances giving rise to serious public concern, and that holding an FAI is in the public interest. Even in circumstances that would usually lead to a mandatory FAI, where the Lord Advocate is satisfied that the circumstances of the death have been sufficiently established during the course of certain specified legal proceedings, including an inquiry under the 2005 Act, the FAI might not be necessary.

The Scottish Courts and Tribunals Service (SCTS) handle administrative arrangements, while COPFS investigates the death and handles family liaison, Crown witnesses, etc. Parties who were participants in the FAI, to whom sheriffs direct their recommendations, are required to respond in writing to SCTS to indicate whether and to what extent they intend to implement the recommendations. If they do not intend to implement the recommendations, they are required to explain why not. Recommendations will otherwise be considered by the relevant regulatory bodies, whether devolved or reserved.

Where there is an active question of whether an FAI or an inquiry under the 2005 Act should proceed, it should be brought to the attention of the Civil Law and Legal System Division within the Justice Directorate which has policy responsibility for FAIs and other inquiries. As the Lord Advocate’s functions are exercised independently of the Scottish Government, great care must be taken to ensure that COPFS’ investigations are not undermined or impliedly criticised should interested persons be aggrieved and calling for Ministerial action. An FAI may only be held in relation to a death which either requires a mandatory FAI or meets the criteria for holding a discretionary FAI. FAIs are not an alternative to a public inquiry in cases where public concern is unrelated to the occurrence of deaths.

Inquiries under other legislation

In very specific circumstances, an inquiry may be established under other legislation, such as the Financial Services Act 2012, the Merchant Shipping Act 1995, Health and Safety Act 1974, Gas Act 1965 and the Energy Act 2013.

Non-statutory inquiries

Aside from statutory inquiries, it is open for Ministers to consider the establishment of a non-statutory inquiry. They can be very similar in form and style to a 2005 Act inquiry; however, they are not able to wield the same powers and they are therefore essentially reliant on the cooperation of those involved. There is also no specific statutory obligation to make the proceedings or findings public. In some cases, for example those cases involving national security or other reasons of sensitivity, which may be the appeal for establishing a non-statutory inquiry.

Some of the reasons given for using a non-statutory approach include:

• to facilitate a more inquisitorial and less formal approach and
• to enable an inquiry to take evidence in private.

Examples include the Hutton Inquiry (an investigation into the circumstances surrounding the death of the Ministry of Defence scientist, Dr Kelly) and the Morecambe Bay Investigation (investigation into serious incidents in maternity hospitals).

Non-Statutory Committees or Commissions

A Commission or Committee may be established to act independently of Ministers to investigate a set of circumstances and, if properly appointed, can command as much public confidence as a public inquiry.

However, there could be concerns that Ministers will exert improper influence over the committee or commission, including in the provision of resources and funds. Such bodies will have no powers to compel the appearance of unwilling witnesses or the production of evidence and are not required to be conducted in public.

Royal Commissions or Committee of the Privy Councillors

Royal Commissions tend to be held into constitutional matters or broad public policy (for example the 1973 Kilbrandon Report on how to deal with children in trouble which influenced the establishment of the Children’s Hearing System), rather than into a particular event or series of events. Scottish Ministers tend to set up non-statutory reviews, e.g., the review into legal services.

A Royal Commission or an inquiry of Privy Counsellors may be established to act independently of Ministers to investigate a set of circumstances and, if properly appointed, can command as much public confidence as a public inquiry.

A Committee of Privy Counsellors is essentially a variation on the non-statutory ad hoc form of inquiry although its composition allows for security information to be seen by the Committee that the Government could not otherwise make available. Royal commissions, like non-statutory departmental inquiries, are ad hoc investigatory or advisory committees, established by Government initiative (albeit with greater formality) and without statutory powers to compel the attendance of witnesses or the production of documents.

Independent review with a public hearings element

Occasionally, Ministers might commission an investigation of some matter or event by a judge or a QC. It is also possible for there to be a review with a public hearings element. An example of both of these is the independent review into the impact of policing on communities during the Miners’ Strike in 1984-85 conducted by John Scott QC.

Regulatory investigations

Some areas of public service are overseen by regulatory authorities who are granted powers of investigation. The Scottish Public Services Ombudsman and various Accident Investigation authorities, for example, have substantial powers to compel documents and evidence from the relevant authorities within their respective remits, while planning inquiries have all the powers of a tribunal and are usually required to be held in public.

Internal investigations

Any public authority may establish an internal investigation to determine the facts of a case and learn lessons from the experience to improve their future performance. Such investigations are entirely reliant on a commitment to good practice and transparency. Such forms of self-regulation are normally able to establish all the necessary facts and make relevant recommendations, because all the necessary evidence and witnesses are already at the disposal of the public authority.

However, they are rarely held in public, and the authorities are not immune from suits of action arising from the conduct of an investigation, as public inquiries are. The potential for conflict of interest is evident, so self-regulated internal investigations may be subject to criticism for their lack of independence. They may not assuage public concerns, especially if the commissioning authority is itself found (or, perhaps more pertinently) not found to have been at fault.

In some cases, it may be possible to engineer some distance between the part of the authority in question and the part carrying out the inquiry, in order to increase confidence in the independence of the inquiry. For example, a critical incident investigation carried out by a Health Board other than the one where the incident took place.

Independent investigation

Ministers may commission an independent investigation into events without establishing a public inquiry in order to minimise the elements of conflicted interests described in internal investigations, but it would be difficult to entirely remove the potential conflict if Ministers themselves were accountable for the actions giving rise to the events under investigation.

Police investigations and criminal prosecutions

The Lord Advocate is the head of the system of prosecution of crime and investigation of deaths. Only the Lord Advocate, or Procurators Fiscal acting on his or her behalf, can direct the police in the investigation of crime. Ministers cannot.

Police Scotland and COPFS have sufficient powers to investigate any criminal matters and if they have taken the decision so to do, it is unlikely that a public inquiry could determine the facts of a case any more efficiently – or more quickly. A public inquiry is unlikely to serve a useful purpose until criminal proceedings have concluded, and indeed the holding of a public inquiry may even hamper the efficient conduct of criminal proceedings since the disclosure of evidence at a public inquiry may prejudice the rights of the accused at criminal proceedings.

The Lord Advocate may decide that the circumstances of a death have been sufficiently established by proceedings, such as a criminal trial, and that it is unnecessary to hold an FAI which would otherwise be mandatory. The same principles might be said to apply to a 2005 Act public inquiry – if criminal or civil proceedings have already determined the facts in public there may be no strong case for a public inquiry. In the case of the inquiry into the explosion at the ICL Stockline factory, however, an inquiry was held in spite of the fact that a prosecution had already taken place under health and safety legislation.

Police Investigations and Review Commissioner

The purpose of the Police Investigations and Review Commissioner (PIRC) is to independently investigate incidents involving the police and independently review the way the police handle complaints from the public.

The Lord Advocate, as head of the system of prosecution in Scotland, is responsible for investigations into criminal allegations against the police. The PIRC can investigate the circumstances in which an officer may have committed an offence when directed to do so by the prosecutor.

Truth and Reconciliation Commission

No such commission has ever been held in Scotland. Their aim is to establish the facts of a case and to reconcile the parties involved, such as the commission established to investigate the apartheid regime in South Africa. Such a forum raises a number of legal difficulties, with questions arising around the incrimination of witnesses and the defamation of the deceased.