For those of our client’s involved in Fatal Accident Inquiries (FAIs) the one thing that comes up again, and again, is the time it takes for the case to get to Court.
To start with an example, we were involved in an FAI in early 2019 relating to a death from 2014. That is almost 5 years for the case to be heard before a Court. That is 5 years where a family may be without answers about how and why their loved one died, 5 years without real clarity on the circumstances around the death. 5 years for staff involved in a death, through the course of their employment, of worry and anguish as to whether they did all they could to prevent the death. 5 years for memories to fade, evidence to be less reliable and people involved to have moved on and be more difficult to trace.
The waiting time involved in the FAI system is simply unacceptable.
It was hoped that the 2016 Fatal Accident Inquiry Act would make a difference in this regard, and in some ways it has. The Act gives the Sheriff much greater power to direct the inquiry and case manage the case. However the key flaw in that is that more often than not it is the time it takes for the matter to investigated that is too lengthy. It is the time it takes to actually get to Court. Once the matter is in the Court system, the case managing powers of the Sheriff are welcome, but that does not help the fact that the death may have happened years before.
The time taken to investigate the deaths must be reduced. We accept that certain elements of an FAI can be complex, requiring much ingathering of evidence, medical reports and hundreds of witness statements, we need a proper period for disclosure and for other parties to carry out their own investigations. However, we do not consider that FAIs are more complicated than similar criminal and civil cases, all of which are subject to certain statutory time limits. That is why, are calling for the next Scottish Parliament to set a statutory timescale for both for the length of time after the death by which the case must be intimated to the Court and a further timescale from when it is initiated to when it is heard by a Sheriff.
To achieve this, in our view, there are various elements that must come together:
- Firstly the Crown Office and Procurator Fiscal Service must be properly, and adequately, funded in order to ensure that cases are not sitting in Crown Office for years on end. More staff must be recruited to deal specifically with Fatal Accident Inquiries to enable cases to reach Court sooner.
- Secondly, FAIs must have more Court time. In Glasgow Sheriff Court, (pre-covid) the FAI Court only sat one week a month. This is not sustainable when we have families living in anguish demanding answers and staff living with anxiety and stress over their jobs.
- Thirdly, Legal Aid should be readily available to those not otherwise able to fund representation before a Fatal Accident Inquiry by other means. For a family to have gone through the heartbreak of losing a loved one and not be able to access legal representation to represent their interests at an FAI is heart breaking and should not happen. Too often the Legal Aid Board take the view that the families interests are taken care of by the Procurator Fiscal, who acts in the public interest, but this not always the case. Sometimes families are happy with the Fiscal leading the inquiry and do not wish to be represented. However, and this is inevitably in the more contentious cases, the views, concerns and voice of the family are not, cannot, and should not, be represented by an institution of the State. This is even more so the case, when the State may be at fault in relation to the death. Similarly for deaths in the workplace, employers can afford all the expensive legal representation money can buy to ensure that their interests are protected but, often families are left on their own. This must change.
Further, we would like to see a statutory enforcement mechanism to ensure that when recommendations are made by a Sheriff at an FAI they are implemented to achieve the desired outcome and avoid repetition of previous concerns. It would appear that the easiest way to do this would be for the party receiving the recommendation to be given a specified period to time to implement the change and a requirement to report back to the Court at a later date to confirm that the change has been made. There should also be an opportunity for the Court to hear from other parties involved in the FAI if there is concern that the recommendations have not been properly adhered to.
Scotland desperately needs an overhaul of our Fatal Accident Inquiry system. In our view these are small but significant changes towards creating a system that serves all parties involved in the FAI process and ensures that lessons are learned.
Blog by Jillian Merchant, Solicitor