Blog: Fatal accident inquiries – A long wait for answers

Alan Calderwood

Fatal accident inquiries can be held when a death occurs in the course of a person’s employment or whilst in legal custody. They can also be held when the death is sudden, suspicious, or unexplained, or occurred in circumstances giving rise to public concern as long, provided it is in the public interest for an enquiry to be held. The procurator fiscals office, under the authority of the Lord Advocate, has discretion regarding whether to hold such a hearing.

The inquiry is designed to establish the time, place and cause of death, not to attribute guilt or establish negligence.

A hearing is held before a sheriff and at the end the sheriff will issue a determination which may contain findings about the circumstances of the death and importantly recommendations as to how such deaths may be avoided in future.

For many families the inquiry can bring much needed answers and with that some closure. Without that many families are stuck in limbo and cannot start the grieving process. No inquiry is going make the loss of a loved one make sense but knowing that lessons have been learned and that it is not going to ever happen again.

This can allow families to move on to grieving for their loved one rather than revisiting the death to find answers. It is a great relief to families who have lost loved ones to know that a broken system has been changed to avoid others being injured or killed. Half of all FAIs held result in determinations as to how similar incidents can be avoided in future. The importance cannot therefore be understated.

Unfortunately the process is slow. Significant improvements have been made to the system in recent years and there is an emphasis on speed and efficiency once the inquiry reaches the court. However, it can often take a number of years before a decision is made by the procurator fiscal’s office regarding whether to hold one or not.

In certain circumstances the delay is unavoidable because of the need to obtain expert evidence, conduct criminal proceedings, and investigate complex circumstances surrounding the death. However, in a significant number of cases there appears to be an inordinate delay in reaching that decision. During that time families are left in limbo and unable to move on from the tragic loss of their loved ones.

Such delays are unacceptable!

The Inspectorate of Prosecution in Scotland noted, quite rightly, in 2016 that “The death of a loved one is a traumatic and distressing event. For those bereaved by sudden or unexplained death, involvement with the procurator fiscal service and an unfamiliar justice system, occurring at a time of significant personal crisis or distress, can be bewildering and concerning. All are entitled to expect a thorough and professional investigation and to be guided through the process with sensitivity and respect. Protracted investigation and unexplained delays is likely to undermine public confidence in COPFS and, potentially, in Fatal Accident Inquiries” … yet protracted investigation and unexplained delays seem to continue to hand in hand with fatal accident inquiries.

Alan Calderwood is a solicitor at Thompsons Solicitors