Fatal mistake not to consider FAI bill

THE sudden death of a loved one is tragic for the family and traumatic for others, such as colleagues who witness a workplace fatality. Historically in Scotland, investigation into fatal accidents has been by the Crown on the basis of there being a public interest. In practice, the Crown reviews whether or not such deaths involve any crime and aims to establish the circumstances of the death and what lessons can be learned. The current system of Fatal Accident Inquiries (FAIs) has been in place since 1976 and involves a public inquiry conducted before a sheriff with the evidence adduced principally by the procurator-fiscal. At the conclusion, the sheriff issues a determination setting out: where and when the death took place; the cause of the death; the reasonable precautions, if any, whereby the death might have been avoided; the defects in any system of working; and any other facts relevant to the death. There is, of course, a right to life under the European Convention on Human Rights (ECHR) and FAIs satisfy the positive duty to investigate properly and openly deaths for which the state might be responsible. Some of Scotland’s most significant and tragic events, such as Lockerbie and Piper Alpha, have been the subject of FAIs, while FAIs are mandatory when a death occurs at work, or while in legal custody. Other FAIs are held at the discretion of the Crown. After almost 40 years of the current framework, plans to modernise the FAI system in Scotland have been set out by the Scottish Government. The Inquiries into Fatal Accidents and Sudden Deaths (Scotland) Bill was introduced to the Scottish Parliament on 19 March with the stated aim to “set out practical measures for a system which is effective, efficient and fair”. The bill implements many recommendations made by Lord Cullen in his 2009 review. One change proposed is to widen the scope of both mandatory and discretionary FAIs. Mandatory FAIs are proposed for the death of a child under 18 years, kept or detained in secure accommodation. Any step to enhance the protection afforded to the most vulnerable in our society is to be commended. The bill also allows the Crown to hold discretionary FAIs into the deaths of Scots abroad. This proposal has been welcomed by families who have experienced such a death. To manage court time better, the bill proposes to allow an FAI to take place anywhere in Scotland. There is a provision to permit the Lord Advocate to re-open a FAI where new evidence becomes available. The role of the sheriff to identify the circumstances of a death and precautions which could reasonably have been taken to avoid it is unchanged – but the bill proposes only precautions which might “realistically” have avoided the death or accident need be identified. The bill confirms foreseeability of a death or accident is not relevant and the sheriff is permitted to consider the matter in hindsight. It also contains an obligation on any person to provide a written response within eight weeks from when a sheriff has directed a recommendation to them, stating what has been done, what is proposed or any reasons why the recommendation has not been followed. While this duty enhances the transparency of the sheriff’s determination, no sanction is proposed for any failure to respond, other than the lack of response being made public. There is no proposed mechanism to look back at the sheriff’s findings to assess how effective any recommendations have been. So while there is much to laud in the bill, some areas are not addressed. Neither does the bill contain any process for families and other interested parties to receive information about a death short of a full-blown public inquiry, nor any procedure whereby families can meet with those involved in the death to get answers to their questions. There is also no proposal as to how legal aid for families who cannot afford legal representation is to be improved given the number of people who find themselves ineligible. These matters are important to families seeking access to justice, a fair hearing and equality of arms. The consultation period is now under way and interested parties can submit their views. • Gary Burton is senior solicitor in the dispute resolution department, Anderson Strathern www.andersonstrathern.co.uk