Investigations into fatal accidents are not fit for purpose; they take too long and prolong pain and upset for bereaved families. Implementing Lord Cullen's recommendations on FAIs alone will not solve the delays; it is also necessary to speed up investigations at the outset.
The consultation for a prospective bill to amend legislation governing fatal accident inquiries (FAIs) in Scotland by implementing most of the recommendations made by Lord Cullen in his 2009 Review of Fatal Accident Inquiry Legislation closed in September. The proposals made by Lord Cullen four years ago include the introduction of preliminary hearings so that administration can be resolved early on, and a flexible approach to inquiries for diseases such as those caused by exposure to asbestos at work.
It is my view, shared with other lawyers, victims’ families and organisations such as the Scottish Trades Union Congress (STUC), that current investigations into fatal accidents are not fit for purpose, are taking too long and are prolonging pain and upset for bereaved families. The problem lies with the huge delays before the matter gets as far as an inquiry. It can sometimes take years for a FAI to get underway because of delays in investigations by the Health and Safety Executive and the Crown Office and Procurator Fiscal Service (COPFS) in deciding whether one is necessary.
Not only do delays make a difficult time drag on for the deceased’s family, who deserve answers, it also means that any health and safety failings which could have led to the death are left unaddressed, potentially leaving others at risk. Unfortunately this is the norm. There are many examples: the case of an inquiry into the death of a teenage girl in 2004 that was only completed in July this year, a decade later, is just one of them.
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 to oversee the performance and training of procurators fiscal conducting FAIs has been established. However, of the 14,000 deaths reported to the COPFS annually, approximately half are investigated by the Scottish Fatalities Investigation Unit. Some will lead to criminal prosecution but less than 1% result in a FAI. Other recommendations regarding the efficiency, formality and practicality of the process are still outstanding and have been the main drivers of the current consultation, which seeks views on the policy proposals.
Although I am supportive of the recommendations made by Lord Cullen, implementing his recommendations alone will not solve the delays. While the recommendations can improve the way FAIs are carried out, it is also necessary to speed up investigations at the outset. FAI also needs to consider the wider public interest in preventing similar fatal accidents in future. It is also necessary to establish an effective way of communicating and signposting to relevant organisations involved in the process. Even though there are often very good reasons for the involvement of multiple routes and agencies in the process, sometimes this can be bewildering at a time when a person is also dealing with bereavement and can have an even higher emotional impact on the families.
Gordon Dalyell is the Scotland representative of the Association of Personal Injury Lawyers (APIL)
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