Douglas J. Cusine: Time for a new body to run FAIs

When the Scottish Parliament reconvenes, there would be merit in looking very closely at the delays in holding fatal accident inquiries (FAIs), the responsibility for which lies, at present, with the Crown Office. A freedom of information request in 2019 disclosed that there were then 127 such inquiries which had yet to be commenced. This issue has been raised frequently in Scottish Legal News since at least 2015 and is currently important because the Scottish Liberal Democrats have suggested that the conduct of these inquiries should be taken out of the hands of the Crown Office. This should not be seen as “grand-standing” as no political party should be satisfied with the current position. This suggestion was prompted because there are numerous examples of delays, which seem inexplicable, and, in some cases, are not explained. It is somewhat trite to say that an FAI should be held, as soon as possible after the death(s), and one reason is to ascertain whether there are lessons to be learned. If there are lessons, the sooner they are identified and learned from, the better.

For example, there may have been some “cowboy” operation that contributed to or caused the death and it is clearly in the interests of any other employees to have an assurance, or at least to be reasonably confident, that there will not be a recurrence. It may be that deaths resulted from a helicopter, or aeroplane crash. Those who fly these machines and those who are transported by them need to find out as soon as possible whether the incident was a “one-off“ e.g. due to sudden adverse weather conditions, or whether there was a design fault. In such instances, it is likely that the Air Accident Investigation Branch (AAIB) will conduct its own inquiry as was the case where there were fatalities following the crash of a Super-Puma helicopter off Sumburgh in 2013. The FAI was in September 2020.

There are, however, many deaths where is no other body with powers to investigate and to make recommendations. One of the incidents which, quite properly has been highlighted, is the deaths in July 2015 of a young couple whose car went off the M9 near Polmont. In August 2016, the current Lord Advocate said that there would be an FAI echoing the view of his predecessor earlier in the same year that it was “inconceivable” that there would not be one.  We are still waiting. Why? Are there no matters of concern? If the young couple had died of carbon monoxide fumes from a leaking exhaust, while that would be tragic, there might not be any lessons to be learned, but it took the police three days to find the couple and at least one of them, it was thought, might have survived had they been found earlier.

Why did the car go off the road, and, more importantly,  were they not found earlier? The then Chief Constable of Scotland, Sir Stephen House, who is now Deputy Commissioner of the Metropolitan Police, announced his resignation in August 2015, and resigned in November of that year. While one has to accept that it is highly improbable that an FAI would have been announced, far less started by the time he departed, many people by now will have forgotten that he was the Chief Constable at the time and hence would have had to bear ultimately responsibility for any identified failings in the way this incident was handled by the police. Can we be certain today, that there will not be a recurrence?  Because we do not know the full facts, it is idle to speculate. What can be said with certainty is that should an FAI ever take place, some other Chief Constable will have to accept any responsibility, even though the incident did not take place on his or her watch.

That is but one example which does not cast the Crown Office in a particularly good light. It was reported in February 2015, that the Crown had decided not to hold and FAI into the death of a 6-week old baby, seven years previously. We will never know why it took that time to make the decision. The “Clutha” helicopter crash in Glasgow occurred in 2013, there was a report by the AAIB in 2015, but the FAI did not commence until May 2019. Why the delay? On 24 January 2017, SLN reported that the Crown Office had apologised for a delay of 12 years in letting the families know that there would not be an FAI. The families said that they had been told at one time that the Crown Office was “too busy” to deal with the matter. Why was there a delay of that magnitude? An exceptional delay—not so, because on 12 March this year, a sheriff commented on another almost 10-year delay, and on 24 January this year, it was reported there was a delay of 12 years since the death until it was announced that there would not be an FAI.

These delays are far from exceptional, as can be seen from the Scottish Courts website. One person died on 30 April 2015, with the FAI starting on 8 February 2021. In another, the death was on 24 July 2016 and the FAI began on 24 February 2020. In another, the death was on 13 March 2011 and the FAI started on 3 December 2020. Not surprisingly, the sheriff stated that this delay had a serious impact on the evidence which could be led. Lapses of two years are not uncommon as are those of three years and four years.

It is in the public interest to know why these delays — some inordinate — occur.  These FAIs are usually conducted by the local procurator fiscal. In August of the same year, the Chief Inspector of Prosecutions noted in the report, a “lack of progress in many areas,” [since the previous report] “lengthy intervals of unexplained delays,” “periods of inactivity,” and the reasons were over-worked staff and inefficient collaboration with other agencies. In September of the same year, the Lord Advocate said that the system had to become “more efficient.” It is difficult to count the number of times SLN alone has published statements by MSPs, families and others criticising these delays. The reports by the inspector referred to above seem to have fallen on stoney ground.

It is perhaps, therefore time to create a new body to deal with such inquiries, and dealing with them would be its sole responsibility. It must, of course, be properly staffed, adequately resourced and the inquiries should be conducted by lawyers in front of the sheriff. If the Crown Office says that there may be a prosecution arising from the death, under the new system, the FAI could be started and adjourned as is done with coroners’ inquiries in England & Wales. In the determination about the cause of death, etc., the date of the death should be stated, as is done at present.

In addition, there should be a requirement to state the date on which the FAI started, and, if there is a delay of longer than say 18 months from the date of death until the inquiry proper starts, those presenting the case should be required to explain to the court the reason or reasons for the delay.  At present, the person presiding can do no more than express regret/dismay that it has taken so long for the FAI to get under way. In criminal cases, a statement given to the police by someone who is no longer alive, or who cannot be traced is admissible as evidence, but this provision should be extended to FAIs. At present, the main concern with the system is not how long it takes to publish the determination, but the delays in getting the FAIs up and running in the first place.

The court has no control over that. These delays are not fair on the families nor on any other person likely to be affected by the death, e.g. other employees. It is not acceptable that some unsatisfactory system continues unchecked, or unidentified, while the Crown makes up its mind to have, or not to have an FAI, and it is simply unacceptable that evidence which could have been led earlier is less satisfactory because of memory lapse, or, as was stated recently, because essential witnesses could not be traced. If a family has to wait for say 7 years before an FAI starts and it then turns out that an essential witness has “gone off the radar” what does that say for our system? Not a lot. And worse still if an FAI cannot be conducted at all because essential witnesses cannot be found.

Time perhaps for radical change and not some cosmetic exercise, or some assurance that things will improve. Statements about improvement have been made too often in the past to cut any ice.

Douglas J. Cusine is a retired sheriff and a respected author of articles and books on legal and medico-legal topics.