Inquests and Fatal Accident Inquiries

In both England & Wales and Scotland, there are potential reforms to the processes for investigating unexpected deaths. 

The independent review of the Fatal Accident Inquiry system in Scotland has recently made recommendations which the Scottish government is considering, and the Public Office (Accountability) Bill, extending non-means tested legal aid for all inquests in England & Wales involving a public authority, is passing through Parliament.

At Irwin Mitchell, our team includes experts in advising bereaved families during post-death investigations and legal processes in both jurisdictions, north and south of the border. In this article, Darren Deery, Partner and head of our Medical Negligence team in Scotland, and Oliver Carter, an Associate Solicitor in our Public Law and Human Rights team in England, consider the similarities and differences between Fatal Accident Inquiries in Scotland and inquests in England and Wales.

The United Kingdom has three distinct legal systems, or jurisdictions: (1) England & Wales, (2) Scotland, and (3) Northern Ireland. This article covers the legal processes for investigating unexpected deaths in England & Wales and Scotland.

When will an inquest or Fatal Accident Inquiry be held?

In England & Wales, coroners are specialist judges who investigate certain kinds of deaths. The legal framework for investigating deaths in England & Wales is contained in the Coroners and Justice Act 2009 and in secondary legislation providing rules and regulations for inquests. 

Coroners have a duty to investigate deaths where there is reason to suspect that the person died a violent or unnatural death, of an unknown cause, or while in state detention. Deaths investigated by a coroner proceed to an inquest unless, in cases involving an unknown cause, the cause of death becomes clear during the investigation, and the coroner decides it is not necessary to hold an inquest. 

In Scotland, the Crown Office & Procurator Fiscal Service must investigate a death where it is sudden (clinically unexpected), unexplained (unclear to a doctor), or suspicious (the circumstances suggest criminal conduct). The legal framework for investigating deaths in Scotland is contained in the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016. 

The vast majority of investigations into deaths in Scotland are completed with no further investigation being required. However, a Fatal Accident Inquiry (FAI) must be held for deaths in custody and deaths caused by accidents at work. The Lord Advocate also has discretion to require a FAI if they consider the death was sudden, suspicious or unexplained, occurred in circumstances “giving rise to serious public concern”, and it is in the public interest for an inquiry to be held. If there is an FAI, it will be presided over by a type of judge called a sheriff.

The purpose of post-death legal processes

In England & Wales, the purpose of an inquest is to answer four questions: who the deceased was, when and where they died, and how they came by their death. In cases where there is an arguable breach by the state of the right to life, protected by Article 2 of the European Convention on Human Rights, the question of ‘how’ a person came by their death is broadened to ‘how and in what circumstances’.

Coroners also have an ancillary duty to make a report to prevent future deaths where the evidence gives rise to a concern that there is a risk of other deaths occurring in future. Whilst individuals and organisations receiving a report to prevent future deaths from a coroner are required to provide a response, there is no duty to take any particular action, and no power for the coroner to enforce their report.

In Scotland, the purpose of an FAI is to establish the circumstances of the death andconsider what steps (if any) might be taken to prevent other deaths in similar circumstances. It is therefore a core part of the sheriff’s role to make recommendations, if they consider it appropriate, to prevent future deaths. 

Similarly to reports to prevent future deaths made by coroners, a person who receives recommendations from a sheriff arising from an FAI is required to respond in writing. The response must provide details of what steps the respondent has taken or proposes to take in response to the recommendation, or the reasons why the respondent does not intend to take any steps. 

As with inquests in England & Wales, it is not the purpose of an FAI to establish civil or criminal liability. Both inquests and FAIs are intended to be inquisitorial, rather than adversarial, and are led by the coroner or sheriff as the judge conducting the investigation.

Participants and Interested Persons

In Scotland, the persons who may participate in an FAI are called ‘participants’ and will include the partner or nearest known relative of the deceased, the employer of the deceased (if the death was in the course of their employment) and any other person who the sheriff is satisfied has an interest in the inquiry.

In England & Wales, the equivalent term is ‘interested persons’, and this will include, among others, family members of the deceased (defined more broadly than in Scotland), any person who may have caused or contributed to the death, and any other person who the coroner thinks has a sufficient interest.

Scope and procedure

In inquests, the ‘scope’ of the investigation – what lines of inquiry are to be pursued – is set at the discretion of the coroner and will focus on the relevant evidence to answer the four questions (who, when, where and how). 

In FAIs, the ‘circumstances’ on which the sheriff must make determinations are set in legislation and include: 

• When and where when the death occurred
• When and where any accident resulting in death occurred
• The cause(s) of death
• The cause(s) of any accident resulting in the death
• Any precautions which could reasonably have been taken that might realistically have resulted in the death being avoided
• Any defects in any system of working which contributed to the death or any accident resulting in the death
• Any other facts relevant to the circumstances of the death 

In terms of the procedure, in an inquest, the coroner takes the lead in deciding who gives evidence and asking questions of the witnesses. Interested persons have a right to ask questions of witnesses and make legal submissions to the coroner on issues such as the scope of the inquest, the witness list and disclosure (i.e. what evidence should be obtained by the coroner and disclosed to the interested persons).

In certain inquests, including those concerning violent or unnatural deaths in custody or deaths which result from an act or omission of a police officer, a coroner must hold an inquest with a jury. Coroners also have discretion to sit with a jury if there is sufficient reason to do so. Where the inquest is held with a jury, it is the jury which reaches a conclusion about the death to answer the four questions.

In a Fatal Accident Inquiry, the Crown takes the lead, but every participant can ask questions of witnesses or call their own witnesses. The Crown represents the public interest. Family members often rely on the Crown to ask their questions, as they are often not legally represented. Participants are under a duty to take reasonable steps to agree the facts so far as possible so that the evidence can focus on the issues and facts in dispute. 

At the end of the evidence, participants present submissions to the FAI on any matters of factual dispute or about individual or systemic failures which may have contributed to the death.

Participation of bereaved families 

In England & Wales, families are entitled to non-means tested legal aid funding for advice and representation at inquests in limited circumstances, primarily where there is an arguable breach of the Article 2 right to life. In many other inquests, families are not represented by lawyers unless they can afford to pay privately for advice or a law firm agrees to represent them under a Conditional Fee Agreement as part of a civil claim.

The Public Office (Accountability) Bill, otherwise known as the Hillsborough Law, currently passing through Parliament, would extend the entitlement to non-means tested legal aid for families in all inquests where a public authority is an interested person.

In Scotland, it is possible to apply for legal aid but means testing and the inability to recover any inquiry expenses as part of a separate civil claim often mean that families are not represented and left relying on the Crown. Means-testing has recently been removed for deaths in custody which might increase representation in inquiries of that nature but in many FAIs families will remain unrepresented unless they can afford to pay privately. A recent report by the charity INQUEST found that bereaved families in Scotland experienced “an opaque and defensive process which fails to properly involve families”.

How long do post-death investigations take 

Inquests into state-related deaths in England & Wales can often take several years to conclude. In part, this is due to other investigations which may take place before an inquest hearing, such as investigations by the Independent Office for Police Conduct or the Prisons and Probation Ombudsman. There can also be delays in the disclosure of evidence by public authorities and in the listing of inquest hearings due to the workload of coroners’ courts.

In Scotland, there is a significant backlog resulting in serious delays and calls for the system to be overhauled. There are currently 318 inquiries outstanding, an 18% increase compared to the previous year, with some cases dating back more than six years. A significant proportion (194) relate to outstanding FAIs for deaths in custody, an increase of 30% from the previous year. The average FAI completed in 2024/25 lasted more than 1,300 days – over 100 days longer than the average FAI in 2023/24.  

Outcomes and recommendations 

At the end of the inquest, the coroner or jury will complete a record of inquest setting out their conclusion as to how, when and where the person died. This may be a short-form conclusion (such as unlawful killing, suicide or accident) or a narrative conclusion which provides more detail about the circumstances of the death. In state-related deaths, narrative conclusions are more common. As outlined above, the coroner may also make a report to prevent future deaths where the evidence gives rise to a concern that other deaths may occur. 

In Scotland a written determination will be released by the sheriff after the FAI, sometimes weeks or months later. The determination is closer to a written judgment than the conclusion of an inquest. The sheriff also has a power to make such recommendations as they consider appropriate relating to the taking of reasonable precautions, improving systems of working or introducing such a system, or “the taking of any other steps” which might realistically prevent other deaths in similar circumstances.

However, there is no enforcement or monitoring process for such reports and recommendations, either in Scotland or in England & Wales. For this reason, the charity INQUEST campaigns for a National Oversight Mechanism: an independent public body responsible for monitoring and following up on recommendations arising from inquests and inquiries into state-related deaths. 

Darren Deery and Oliver Carter will be discussing the issues covered in this article at a webinar at 6pm on Wednesday 29 April 2026. You can sign up to attend Investigating Unexpected Deaths – Comparing Processes in England & Wales and Scotland