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Patrick McGuire, PartnerFor the best part it can easily be said that Scotland’s judicial system is one to be proud of. It is transparent and adversarial, striving to ensure equality among court users.  While that is generally true, there is one particular aspect of our judicial system which stands in stark, uncomfortable and polar opposite contrast to the rest of the system. The aspect I am referring to is Fatal Accident Inquiries (FAI).

In our current system, delays of three years or more between the death and a decision to hold an FAI are not uncommon. While rules in relation to sub judice are essential, that is no excuse for the lack of communication with the families of the deceased during the process of criminal investigations which seems to currently characterise the process.  This illustrates the biggest problem within the system which is to leave the families on the periphery. It many cases families are left feeling as if the system is working to deliberately exclude them.

It is true to say that the legislation governing FAIs is now pretty old.  However, the role given to the Lord Advocate in the legislation is less anachronistic than it is simply at all odds and irreconcilable with our jurisprudence. It is the Lord Advocate who decides if a death falls into either of the mandatory categories. It is the Lord Advocate who decides, in the event that the death falls into the discretionary category, whether public interest requires that a FAI to be held.  It is the Lord Advocate who determines if the circumstances of the death have been sufficiently established such that no FAI will be held despite the death falling into the mandatory category.  

These decisions, which are crucial to the deceased’s families, are all made behind closed doors without formal determination being issued and leaving no right of appeal for the families. In these instances the Lord Advocate is making a judicial determination without being open to the necessary judicial checks and balances of openness and transparency.  The Lord Advocate does not receive submissions, does not issue a formal judgement and is not subject to appeal.  

Regardless of the justification for this, the impression created in the minds of the families of the deceased is that the entire system is controlled by an individual totally beyond their reach whom they cannot influence and who has unfettered, unchallengeable powers.  

The FAI system is crying out to be drastically overhauled and dragged into line with the rest of our judicial system such that it is open, transparent and places the families of the deceased at its heart.  There has been the Lord Cullen Review and the Scottish Government’s response to this but the simple fact is that they do not go far enough. The case for substantial reform is unanswerable and the time for action is now.

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