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The Need For Fatal Accident Inquiry Reform: An Accident Waiting, And Waiting, To Happen

The Need For Fatal Accident Inquiry Reform: An Accident Waiting, And Waiting, To Happen

Consultation on reforming the way in which fatal accident inquiries (FAIs) are held is well underway. With the government expressing a desire to streamline the FAI process there is less than a week left to comment.  Some progress has already been made in light of Lord Cullen’s 2009 review of legislation governing FAIs: a dedicated Scottish Fatalities Investigation Unit (SFIU) within the Crown Office and Procurator Fiscal Service (COPFS) to oversee the performance and training of Procurators Fiscal conducting fatal accident inquiries has been established.  However, other recommendations regarding the efficiency, formality and practicality of the FAI process are still outstanding and are the main drivers of the current consultation.

A fatal accident inquiry can be held in order to establish the time, place and cause of an accidental, suspicious or unexplained death. The Lord Advocate may decide that it is in the public interest to hold an FAI into a particular death, such as one occurring in circumstances which are of serious public concern. An FAI is only mandatory in certain circumstances, such as any death from an accident at work or in legal custody. The consultation looks at expanding and updating the categories of death under which an FAI will be mandatory.

Of the 14,000 deaths reported to the COPFS annually, approximately half are investigated by the SFIU. Some will lead to criminal prosecution but less than 1% results in an FAI. Whereas the purpose of a criminal prosecution is to find criminal responsibility, and the purpose of civil litigation is to find liability, an FAI is said to be “fact finding, not fault finding”. That said, FAIs are presided over by a Sheriff and most do take place in a formal court setting. The Inquiry will explore the circumstances of the death, identify if any reasonable steps could have been taken to avoid it and publicise any “lessons learned” which could prevent similar fatalities from happening again.

A death arising out of a workplace accident is very likely to result in an FAI being held. Whether any failings in an employer’s system of working contributed to that death is one of the factors that must be considered by the Sheriff in their determination after all evidence has been heard. So while an Inquiry is in theory only concerned with facts, and cannot of itself form the basis of a criminal or civil claim, evidence led and findings made will be reported in the media. This can lead not only to reputation damage for any party involved, but could also increase the likelihood of a future prosecution or claim in the civil courts.

A Sheriff might ultimately make recommendations, but there is currently no system in place for compelling any party even to respond to, far less take heed of, any such recommendations. The consultation contains proposals which would (if enacted) require those who have had recommendations directed at them to  provide an explanation as to what steps have been taken, and why recommendations have not been complied with. Organisations which fail to implement recommendations will have to be ready to defend and justify that position.

The consultation also explores the concerns that have repeatedly been raised at the length of time taken to begin an Inquiry. A number of FAIs which have concluded recently have faced heavy criticism for lengthy delays, sometimes as long as eight or nine years after a death. This may in effect weaken the impact of any recommendations made.

It is in the interests of justice for FAIs to be held as soon after the death as possible. Delaying the Inquiry process serves to prolong the distress, anger and agony for bereaved families, as well as for those parties whose professional competence or judgement may be in question in the circumstances of the death. There is a risk to public safety, because delaying an FAI can also delay the identification of measures that could be adopted to prevent further accidents occurring from similar circumstances. As the Faculty of Advocates have noted in their response to FAI reform plans, there is also the fact that “recollections quickly dim”.  The shorter the time lapse between fatality and FAI, then the fresher the evidence will be in the minds of witnesses and the lower the risk of relevant evidence, such as file notes or patient medical records, being lost or destroyed. Some have suggested a legal time limit within which any FAI must be held after the date of death.

As with so many things in life and in law, a balance needs to be struck. There is the need for thorough investigation at the outset, on one hand, and the interests of any victim’s loved ones, as well as the wider public interest in preventing similar fatal accidents in future, on the other.

The Scottish Government’s Consultation on proposals to reform Fatal Accident Inquiries legislation closes on 9 September 2014 and can be accessed here.

Adam McCabe