Scanning the headlines in the national press over the last few weeks has seen announcements that two public inquiries are to be held in Scotland.

A fatal accident inquiry (FAI) under the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016 is being held into the train crash near Stonehaven in August 2020 where Network Rail, following prosecution, were fined £6.7 million. An inquiry into the medical practices of Sam Eljamel, a neurosurgeon surgeon in Tayside, following a due diligence review by NHS Tayside is being held under the Inquiries Act 2005.

Both are examples of public inquiries, held under statutory frameworks. There is an obvious difference in that three fatalities resulted from the train crash, therefore an FAI could be held but it could have been instructed as an inquiry. With medical malpractice, in contrast, an FAI would not have been competent, no matter how serious the injuries caused.

A comparison of the nature and purpose of these two public inquiries helps promote understanding as to why different types of public inquiries are held, their intended effect and the benefits for the public. Their aims both address the central issue of public concern. Their difference perhaps lies more in their structure than effect. It outlines how some minor changes might improve public awareness and understanding. The public should understand what these inquiries, being held in their name, can or cannot achieve, and how their expectations could be addressed more effectively.

What is the difference between an inquiry and an FAI?

Instruction: an inquiry is instructed by ministers (UK or Scottish) under section 1(1) of the Inquiries Act 2005 where events have caused, or are capable of causing, public concern or there is public concern that particular events may have occurred. An FAI is instructed under Section 2(3) of the 2016 Act where the death was the result of an accident which occurred in Scotland, and while the person was acting in the course of their employment or occupation. (E.g. The driver and conductor of the train were both acting in the course of their employment, hence, a mandatory FAI as opposed to a discretionary FAI.)

Purpose: The FAI’s purpose under section 1(3) of the 2016 Act is to establish the circumstances of the death and consider what steps (if any) might be taken to prevent occurrence of other deaths in similar circumstances. The determination issued at the end of the FAI under section 26 of the 2016 Act outlines the findings. These cover when and where the death occurred, when and where any accident resulting in the death occurred, the cause(s) of the death, the cause(s) of any accident resulting in the death, any precautions which could reasonably have been taken, and had they been taken, might realistically have resulted in the death, or any accident resulting in the death, being avoided, and any defects in any system of working which contributed to the death or any accident resulting in the death. FAIs operate in what is a relatively tightly drafted framework.

An inquiry in effect sets its own remit by ministers or otherwise so that the Report with which it concludes is not as constrained as an FAI. The inquiry’s terms of reference respond on occasion to public consultation as seen with the Grenfell inquiry. An inquiry would therefore tend to be the choice where an examination of issues outside those directly relating to the circumstances of the death are warranted. The Dunblane inquiry (though an FAI was also subsequently held) and Piper Alpha Inquiry (prior to the 2005 Act) were both public inquiries allowing examination respectively into the wider issues of gun control practices and North Sea Oil Rig safety. These issues would not have been within the scope of an FAI.

Conduct: inquiries are usually conducted by judges, as are FAIs. The latter are usually held under the auspices of sheriffs with evidence being led by the Crown. Both are inquisitorial and have in effect powers to investigate. This is not necessarily appreciated fully in FAIs where they may tend to be equated with the Crown’s role in adversarial proceedings where the leading of evidence is restricted to those parties in court. However, both an inquiry or an FAI can compel witnesses to give evidence or to produce documents.

Conclusion: Both FAIs and inquiries can also make recommendations. In relation to FAIs, under section 26(4) of the 2016 Act, these relate to the taking of reasonable precautions, the making of improvements to any system of working, the introduction of a system of working, and the taking of any other steps, which might realistically prevent other deaths in similar circumstances. Again their remit is limited, whereas an inquiry could seek to make such findings as were felt relevant. In both, findings are not legally binding, being in an inquiry it is a matter for the government or any other relevant bodies to implement any recommendations. However with the publication of inquiry reports, political pressure may be brought to bear given they were instructed by ministers.

There may be few differences seen in practice whether an FAI or inquiry is instructed. Both tend to be costly, depending on factors such as their complexity, the number of parties involved and, in effect, the witness numbers. They are both held at public expense, though the FAI budget falls under the combination of expenses attributable to Crown Office and Procurator Fiscal Service and the Scottish Courts and Tribunals Service. The budget for the public inquiry is allocated by Parliament.

Why hold public inquiries?

The circumstances of both incidents require investigation in the public interest as only internal reviews have taken place meantime. NHS Tayside commissioned a Due Diligence Report. Network Rail are investigating and is still to report. If only internal inquiries were held, this would not address the issue of public concern. It would not achieve the openness, transparency and independence of investigation required. Neither an FAI or inquiry can result in findings of civil or criminal liability, nor necessarily satisfy public accountability. Their primary focus is the need for lessons to be learned.

The universal call from those affected, bereaved families and otherwise is that no one else should suffer in a similar way. For the wider society, inquiries allow it to move on. The Ibrox disaster in 1971 is an example that shows how public inquiries can influence, with the benefit of hindsight. It led to the Safety at Stadiums Act 1975. An effective inquiry system means that families and all parties to the FAI or the inquiry should be satisfied with the outcome be it in the issued determination or Report. It should have allowed full and frank airing and discussion, but this appears not always to be the case. Partly, through at times, unmanaged expectations for those involved, they may not have fully appreciated or understood the nature of the inquiry or FAI and its scope.

Managing public expectations

An inquiry or FAI cannot assign criminal or civil liability. These require separate criminal or civil proceedings in a separate judicial process. Since 1976, FAIs never involve juries (unlike England with inquests) and any finding of liability was then abolished. These changes are aimed at supporting those giving evidence to be untainted by the possibility that they then may be found responsible. A finding of perjury in giving evidence at an inquiry is competent. Those closely connected with the inquiry or FAI need to understand these statutory limitations with advice and support available so they understand that why the determination or Report may not necessarily cover what they themselves feel are the relevant points. The role of the judge is as decision maker in accordance with the respective statutory frameworks to address these requirements in the public interest. There is a collective responsibility to promote that understanding which needs to be made clearer by all responsible for the operation of the public inquiry system.

Concern continues to exist relating to the length of time for an inquiry and FAI to be instructed and concluded. Timescales are lengthy. From the families’ perspectives, enhanced and clearer timescales and effective requirements for monitoring these timescales would help with transparency and better accountability of that process. That modest change to introduce mandatory timescales might improve on what may be seen at times as an ineffective process with delays resulting in lessons not being learnt at all or not quickly enough to effect real change.

In conclusion, both the Inquiry and the FAI examine what went wrong; they benefit subsequent advancement of knowledge and effect relevant systemic change for society. What these mean for the crash or medical malpractice is awaited but lessons as to track safety or medical practice supervision may well result for the greater public good to avoid any repeats.

The FAI and the inquiry therefore fulfil that need to investigate concerns where they arise in the public’s name. To discharge that important responsibility in completing such public inquiries for the good of society, they must therefore be timely, transparent, and to be as effective as the public require.

Gillian Mawdsley is a solicitor principally focused on lecturing and teaching roles in law at the Open University, Edinburgh University and Strathclyde University