In the third and final episode of our health and safety podcast series, we speak to two people who can help us understand what a Fatal Accident Inquiry (FAI) is and what it is like to prepare for and be involved in one.

Malcolm Gunnyeon from Brodies specialises in health and safety, and Fiona Meek, Risk and Safety Manager at Village Hotels, who will discuss their different perspectives of being involved in an FAI, how lawyers and clients work together throughout the process and what it is like to give evidence at an FAI.

We discuss the potential impact on corporate and personal reputations, when a FAI is required, who decides that one will take place and what the purpose of an FAI is. We also hear about the experience of hearing the final determination.

Episodes one and two of this health and safety series outline the considerations and actions an organisation needs to make following a workplace incident or accident, through to the experience of civil and criminal proceedings. You can listen to these episodes now.

The information in this podcast was correct at the time of recording. The podcast and its content is for general information purposes only and should not be regarded as legal advice. This episode was recorded on 03/10/23.

David Lee, Podcast host

David Lee is an experienced journalist, writer and broadcaster based in Scotland. He is the host of Brodies' podcast series Podcasts by Brodies.

David Lee, Podcast host]


00:00:03 David Lee, Host

Hello and welcome to Podcast by Brodies. My name is David Lee. In this podcast, part of the Health and Safety Series, we discuss what it's like to participate in a fatal accident inquiry. Why do we have fatal accident inquiries or FAI’s? Who takes part in them and what happens?

I'm joined by two guests to help us answer these questions and many more. Malcolm Gunyeonn is a partner at Brodies, specialising in health and safety, and Fiona Meek is Risk and Safety manager at Village Hotels. Malcolm and Fiona will discuss their different perspectives of being involved in an FAI, how lawyers and clients work together throughout the process snd what it's like to give evidence at an FAI.

Welcome, Malcolm and Fiona. Malcolm, to kick us off, can you tell us simply what is a Fatal Accident Inquiry and in what circumstances are they held?

00:00:58 Malcolm Gunnyeon, Partner

A fatal accident inquiry is a public hearing and its purpose is to establish the cause of a sudden, unexplained or suspicious death. There's a whole legislative framework that goes around them, but that's their fundamental purpose, a public inquiry to establish the circumstances of unexplained deaths.

00:01:21 David Lee, Host

Can you give us some examples of FAI’s that have taken place in Scotland that people might have heard of? On the converse, what are the reasons why, in certain circumstances, a fatal accident inquiry wouldn't take place?

00:01:34 Malcolm Gunnyeon, Partner

They're mandatory in certain circumstances. So, if somebody dies whilst at work or if they die in custody, so in in police custody or in a prison, then an FAI must be held the statute is clear on that. In other circumstances, it's up to the crown when they are held, and the general test is whether there's serious public interest in understanding why the death occurred. Quite often they are high profile, as you would expect, and there have been a number in Scotland over the last few years that I suspect lots of people will have heard of, there was the inquiry into the Sumburgh helicopter crash. There was the inquiry into the Louisa fishing boat that capsized where three of the crew were lost and I guess one that gives a good example of the difference between discretionary and mandatory inquiries is the Clutha helicopter crash, where as most people will know a helicopter crashed into the Clutha bar in the centre of Glasgow. In that scenario the inquiry was mandatory in terms of the two pilots on board the helicopter because they were at work, but it was discretionary in relation to the customers who were in the pub, they weren’t in custody and they clearly weren't employed, or they weren't in their employment at that time. The Crown could have said they weren't going to have an inquiry for their deaths, but clearly significant public interest where a commercial helicopter crashes onto the on the roof of a pub so that's why the inquiry was held to cover all of those deaths in that set of circumstances.

00:03:16 David Lee, Host

Who makes that decision? Malcolm, who decides if an FAI is necessary if it is a discretionary one as you've described and all? Ultimately, what is an FAI? What is it there to do? What is its purpose?

00:03:38 Malcolm Gunnyeon, Partner

It's always the Crown Office or the Crown Office in Procurator Fiscal Service who will decide if a discretionary inquiry is to be to be held or not. Quite often, one of the reasons they might decide not to hold an inquiry is if there's been a prosecution following a health and safety incident and they take their view that all of the issues that might be considered at an inquiry have actually been covered off in the prosecution so there's no need to have everybody involved, go through all of those issues again and particularly family members who will have found the prosecution process traumatic, if there isn't anything going to be achieved by an inquiry, why put the family members through that trauma for a second time? So arguably there's no public interest in having an inquiry in those circumstances, but it is a question of discretion for the Crown. The family do have a right to have that decision reviewed so if the Crown decide not to have an inquiry, then the family can ask for that to be reviewed by a more senior person within Crown Office.

In terms of its purpose, it has two main objectives. One is to establish the circumstances of the death, why it occurred when it occurred, how it occurred. It's not about apportioning blame or liability, it's purely looking at the factual circumstances and understanding how people came to be killed? The second aspect, and perhaps the more involved aspect of inquiry quite often, is to look at what steps could have been taken to avoid that death or those deaths and what steps can be taken in the future to avoid similar deaths occurring in similar circumstances.

So, essentially making recommendations for changes to working practises to safe systems of work, to legislation, to government guidance, to make sure that, so far as possible, similar deaths are avoided in the future.

00:05:46 David Lee, Host

It's an interesting point there, Malcolm, when you talk about, it's not there to apportion blame, is that a challenge sometimes for bereaved relatives who are taking part in FAI’s? Is it easy for them to make that discretion? Very often people say we're looking for answers, is that a bit of a challenge at times?

00:06:04 Malcolm Gunnyeon, Partner

More often than not, a fatal accident inquiry will come after a prosecution process. So, if there has been a health and safety prosecution that will have been dealt with, that will have determined criminal liability in the context of health and safety law. It's usually, I'm not going to say it's easy for the families to be involved in FAI’s because clearly it's not, but they've had that finding of fault, someone has either pled guilty or the court, and potentially a court and a jury has determined that they were at fault for what happened. So, I don't think it makes the process any easier, but there is an understanding that that's not the role of the fatal accident inquiry. I can see that that is more difficult, if there hasn't been a prosecution, if for whatever reason, the crown felt that perhaps there just wasn't sufficient evidence to meet the criminal standard of proof but there would still be an FAI, and then the family are, not only looking for answers, looking for someone to accept responsibility or for the court to say someone is responsible and that's not the purpose of the FAI so I can see that that would be amore difficult set of circumstances for them to accept the more limited scope of an inquiry.

00:07:27 David Lee, Host

We'll talk a bit more later on about the role of families and so on. What about the lawyers to begin with? Malcolm, when do you become involved in the process of a fatal inquiry and what is your specific role?

00:07:41 Malcolm Gunnyeon, Partner

So quite often, I say more often than not, we will have been involved in the wider incident that gives rise to the inquiry quite often from as soon as the incidents happen, so we'll have been advising the client on the investigation, the immediate incident response, how they deal with whether it's an HSE investigation or a police investigation, then we'll have been advising through the prosecution process. So, quite often, the FAI for us is the last stage in the process and we have been involved from the outset. That's if we're acting for, you know, the employer who has whose employees have been killed, it's perhaps different if you are acting for one of the parties who isn't involved in the prosecution process, for example, a trade union or the police or the fire service are involved in the inquiries, they wouldn't be involved in the prosecution, they would only get involved at the stage that the crown decides to hold an inquiry and public notice is issued of that and our role would start at that point and what we have to do then is very quickly get up to speed with what the incident is, what the background is and what the issues are that the inquiry is going to deal with, so that's probably the latest point we get involved when the actual inquiry process starts but more often than not, we've been involved from day one.

00:09:18 David Lee, Host

Thanks very much for that, Malcolm. Fiona, if I can come to you, can you just explain initially how you came to work together with Malcolm during a fatal accident inquiry, please?

00:09:32 Fiona Meek, Risk & Safety Manager at Village Hotels

In summary, it came together in December 2021, which was approximately 4 years after an incident that happened at one of the organisations that I work for. I was advised that I would be classed as an interested party in a fatal accident by the Crown, and for that I require to be legally represented. At that point as a company, we were with another firm and I had to seek to find my own legal representation, and hence Malcolm and I became, I suppose, in many ways and colleagues in regards to working together to present the best position for myself. For myself, personally, up until that point I was anonymous in a company and all of a sudden I then became named and it started us to gather information. The hardest bit at that point was for Malcolm to get up to speed shall we say, I've been involved in something for a period of time for approximately 4 years and knew a lot about something, and Malcolm was just fresh in but clearly he was the expert in regards to the process and what that would look like, whereas I was the expert as to what had happened up until that point, it then became a new relationship it’s fair to say, but a lot of that was round about gathering information and gathering trust on both sides that both of us had different parts to play in this jigsaw puzzle.

00:11:14 David Lee, Host

What was most helpful in what Malcolm was able to bring to support you through that process?

00:11:25 Fiona Meek, Risk & Safety Manager at Village Hotels

Malcolm clearly is an expert in his own right and an expert in the whole process. I had never gone through this before, and in my career I never want to go through it again, it's fair to say. Especially in my role in health and safety, a fatal accident inquiry is one of those things that we read about, we learn about, we study, but we also hope that in our careers we never need to be involved in it. This was putting into action what I'd read in a book, however, to have the expertise and the knowledge of someone that had been through it really helped the process, how everyone fitted into that process, clearly I was very uncertain and I had to put a lot of trust in Malcolm and he had to put a lot of trust in me. I had a lot of questions and I'm sure Malcolm will smirk round about that that I had a lot of questions, but I firmly believed that no question was a silly question. I had to really understand this process inside out that this was about Fiona, it was about how I best could present as that interested party to a) ensure that I could represent myself the best, but also to represent and to assist in this fatal accident inquiry because ultimately it was about assisting a process to ensure that something never happened again, how can we be better at what we actually do. So it was giving me the encouragement, giving me the professionalism and talking through the process as to what was coming next, and a few times, I was advised ‘Fiona, just leave it with me and trust me’ and you know I did trust him and trusted the process and trusted and the advice that I was given. Was it daunting? Yes. Did I feel vulnerable? Yes, but for me, I felt as prepared as I could, going into a very unusual set of circumstances and I understand as well that each one of these is different, there's not one-size-fits-all, but the framework and the process is the same and and I definitely felt that I had the right person standing, I'll say, next to me, I'm sure sometimes he wanted to be behind me and I know that sometimes I definitely pushed him in front of me, but it wasn't deliberate. He was the best placed person, in my opinion, that gave me that level of support and the confidence that the process would work and that it wasn't personal as I first thought but that's just me as an individual, and a lot of us think that I was part of a company and all of a sudden it was me, it was Fiona, it wasn't the company, it was Fiona that was being having to stand there.

00:14:23 David Lee, Host

Thanks very much. It's really well described. Malcolm, first of all, anything to add to that relationship between yourself and Fiona and how that worked, but also then going on to what support is available to those taking part in a fatal accident inquiry from the wider framework, not just from their lawyer.

00:14:46 Malcolm Gunnyeon, Partner

Fiona described it well and kindly in terms of the support she got from me and the team. That is an example, David, as we were talking about a minute or two ago about coming into an inquiry at a relatively late stage, so I hadn't been involved in the original incident, I hadn't been involved in any of the procedures up to that point. So, Fiona and I were thrust together, I guess is the right way of putting it about two weeks before the first procedural hearing in the inquiry. Fiona has summed up really well, my role was to explain to her what was going to happen, what the process was going to be to make sure that she didn't have to worry about court rules and FAI procedure rules but I needed her to get me up to speed quickly on what this was all about, the history. So, it’s not a lawyer advising the client, it was definitely a team approach because we had limited period of time to get ready and we both had to support each other in that. So it's definitely a team approach, in my view, when you get into these situations. It’s not just the client doing what the lawyer says, it's working together and achieving the best outcome. In terms of support, it's always the crown who leads a FAI, so they arranged the witnesses and witnesses will be given support in the same way as a witness attending any other kind of court hearing, the Scottish Court service has teams who will look after them, who will make sure they know where to go, what time they're giving evidence, give them somewhere to wait. The families have a particular role, as you would entirely expect in a FAI, and the legislation requires there to be a specific charter about family liaisons, so they will be supported in a lot more detail through the inquiry process by the Crown Office and the victim information service. So they'll be updated as the process is ongoing, they'll be told when the procedural hearings are happening, who the interested parties are, and Fiona and I both talked about interested parties, they are the people or the organisations that the court thinks have information that's relevant to the inquiry. So, sometimes people like Fiona who have senior positions at organisations where they have background information relevant to health and safety management or procedures, trade unions, as I said already, Fire and Rescue service, police. Some of these interested parties clearly are corporate organisations and don't require much in the way of support, they'll have their own legal teams but when the families are interested parties, they might choose to actively be involved in the inquiry, they might choose to be represented by a solicitor, but if they're not, then they're supported by the victim information service and they'll be updated on all the procedural steps, who's involved in the inquiry, what the issues are that the inquiry is going to address., they'll be consulted on these things as well, they'll be given the chance to feed in both in the buildup to the inquiry and during the inquiry hearing itself, they will be regularly in contact with the crown, and able to indicate issues they'd like to be considered, things concerning them in the way information is coming out, they are as involved in the process as they want to be and some families want to be very involved, others just want to move on and they recognise the process has to happen but they don't want to be actively involved, but whatever level of involvement there is a significant level of support there for them.

00:18:53 David Lee, Host

Fiona, you talked earlier on about your vulnerability and how challenging you found the experience but wanting to present yourself and your role in in the best possible way. So, how well supported and well informed did you feel about going into that FAI process?

00:19:15 Fiona Meek, Risk & Safety Manager at Village Hotels

I felt very informed and very supported. I, suppose in many ways, did some things that were unique, and as I've said before, every FAI is unique and I asked Malcolm if he could arrange for me to have access to the courtroom where the hearing was going to be, and that was so that I could understand where people were going to be seated because it’s okay looking at it on a sheet of paper but when you walk into that room in the morning when you've been called, suddenly, I wanted to know where people were going to be seated and where the family would be seated how to gain access into the area and for me that was part of it, was the preparation in terms of what was going to happen in that morning. In regards to information and the process as a whole, I felt very informed, I felt like there was no surprises that I was unaware of but for me as well, it was understanding all the information that I had and had I read the information and did I have the information in my head because I didn't know what question was going to be asked of me, even though I had an idea, Malcolm had an idea, there was still a few questions that were asked that we weren't 100% thinking we're going to come, but they did but I knew the case well enough.

00:20:47 David Lee, Host

So, Malcolm, one thing we've not talked about is the potential impact of media reporting on a FAI, especially on the reputation of certain participants. How would you reflect on that potential reputational damage and are there any restrictions on the media reporting of FAIs?

00:21:09 Malcolm Gunnyeon, Partner

Given that a FAI is being held at all, clearly there have been deaths and I deal most often with FAIs, where someone has died during their employment, so on any view that creates a reputational risk, particularly for their employer. It's not a good news story no matter how well prepared for the inquiry you are, there is going to be media reporting media coverage because they are high profile and it's not going to be positive. So again, I think by the time you get to the FAI, there's been quite a lot of media coverage for the initial incident quite often, and certainly of the prosecution, so the employer is probably well prepared for that. They’ve been through a couple of media cycles around the incident, they're not going to be surprised by it but for individuals, people like Fiona who become involved in an inquiry as an interested party, as Fiona said earlier, they have been anonymous in the process up to that point, and all of a sudden they are a named party in the inquiry, they're giving evidence, and although there's no television recording inside a FAI they do find themselves being photographed on the way into court, photograph walking out of court at the end of the day. There are concerns that their name will appear in a press report at the end of the day, and they might be criticised, not so much by the sheriff in final determination of the inquiry but the media. So, there's always reputational risk for the companies and then when you have individuals, suddenly they find themselves thrust into that risk as well. There aren't many restrictions on reporting, as I said earlier, you're not allowed to film inside the inquiry, but the press will attend and there will be daily reports of what's going on in the inquiry, what the evidence is, a company quite often buy photographs of the witnesses and the parties coming in and out of court. So, it is intended to be a public process for good reason, there is public interest in what these inquiries are considering, but it's a very exposed public place if you are a family member, an interested party, even just a significant witness, it will attract a lot of media attention.

00:23:43 David Lee, Host

Thank you, Malcolm. What happens at the end of an FAI? What’s next for those directly involved?

00:23:50 Malcolm Gunnyeon, Partner

So the outcome of any inquiry is what's called the determination by the sheriff. So, the sheriff will issue, effectively, a judgement at the end of the inquiry and that will deal with a number of elements, noting what the cause of the death was, when it occurred, why it occurred, and as I said at the outset of our conversation, perhaps the most important part of it is what can or should be changed for the future. So, quite often the determination will include a number of recommendations about changes that have to be made, might be very direct recommendations that a certain thing has to happen or stop happening. Equally, it might be a recommendation to the Scottish Government to establish a working group to look at certain things, or that there should be an industry approach or change in industry approach to how a certain piece of machinery is used, or a certain process is carried out. That's the conclusion of the process or written determination setting out how the death occurred, why it occurred, and these are recommendations to prevent similar deaths happening in the future. Again, the interested parties, they'll be talked through that by their legal team, the families will have that explained to them by the Victim Support team within the Crown Office.

00:25:09 David Lee, Host

Thanks very much. Fiona, when you look back at your own experience of being involved in an FAI, what’s your reflections? What would you say to someone else who found themselves in a similar position to help them through the process?

00:25:30 Fiona Meek, Risk & Safety Manager at Village Hotels

Number one is trust the process and trust the person, your lawyer who's with you. It's their bread and butter and it's a unique experience for you. Be prepared, and this is easy to say, but try not to take it personally, it's not personal. It has developed me as a person, I have learned lots. Try to, I suppose in many ways, downplay the frustrations, you will get frustrated over the length of time some of the processes take and we work in a business that's fast-paced business and the court doesn't, and the legal system, doesn't move as quick as a business moves, but it's not personal. Trust the person and have ultimate trust and be open and honest with your lawyer. Don't hide anything. Tell them the truth, obviously you're there to tell the truth anyway, but be really transparent with what your fears are as well, and if you tell them what their fears are they'll be able to give you some advice and guidance to get you through that process in the best possible way. I know I asked lots of questions and I know that every time that I saw Malcolm that he would look at my file that I would pull out my bag with loads of sticky notes all over it and think ‘Oh my goodness, we're only on sticky note 25, but the process works.

00:26:57 David Lee, Host

Thanks to Fiona Meek and Malcolm Gunnyeon for their excellent insights today into a fatal accident inquiry.

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