Douglas J. Cusine: Fatal accident inquiries – more unacceptable delays

Douglas J. Cusine: Fatal accident inquiries – more unacceptable delays

At the risk of sounding like a broken podcast, delays in getting fatal accident inquiries started are to me, a disgrace. As we know, some FAIs are mandatory; some are at the option of the Crown, but that distinction is irrelevant; there are delays in both categories. I am not alone in my concern. These delays have frequently been commented upon by others over many years and, certainly, in relation to the first example I mention, MSPs have expressed “concern” about the delay.

It is very important that the public have faith in the system. If it takes what the public see as “ages” to get an FAI running, without any reasonable explanation for a delay, the public are in danger of regarding the system as a joke. If unfortunate relatives are palmed off with “explanations”, which look as it they have come out of the “The Bumper Book of Excuses”, what faith can they have in such a system? If FAIs are run because the Crown did not succeed in securing a conviction in a trial, that is unacceptable, unless evidence emerges that was not known at the time of the prosecution. Sadly, despite comment from all manner of people, over too long, what has changed in relation to delays? Not a lot, it would seem.

Take these examples. A car in which two young people were travelling went off the A9 near Stirling in 2015 into trees. A 999 call was made very soon after the incident, but not acted on for three days. The FAI started in 2023. A baby died in a Glasgow hospital in 2017 and only recently was it announced that a decision had been made to hold an FAI. Two people died in a fire at Cameron House Hotel in 2017; the FAI was held in 2023. Two young offenders died within a very short interval of each other in Polmont Young Offenders’ Institution. These deaths were in 2018. A joint FAI commenced in 2023. These cases have nothing in common except two things (a) the delay; and (b) each suggests that a “system” had broken down.

In the case of the road accident involving the two young people, the Crown’s position on the delay is that the case is complicated. It is easy to make something complicated when it is not, but I do not understand why the case is complicated. Someone made a 999 call. The young couple were not located until three days later. For me, an FAI needed evidence about how such calls are logged, the procedure for dealing with them and why either or both of these did not seem to work as they ought. Next question: was this due to human error, or a technical problem? I am not sure what else we need to know, except what has been done to address whatever problem there was. The delay in getting an answer to that, which arises in the other examples, makes my point.

In the case of the baby, questions could be: what caused the death and was there neglect on the part of hospital staff to address a problem with the baby? Was that human error or a technical issue. What has been done since?

I accept that, not knowing the facts, I may have oversimplified matters, but even if I have, the delays in these cases (and they are not by any means unique) do not paint our system is a good light; rather the opposite.

It seems to me that there are at least three benefits in getting an FAI going as soon as possible. These are blindingly obvious, but do not seem to be in the forefront of the Crown Office and Procurator Fiscal Service’s approach. (a) the relatives can, hopefully, get “closure” sooner, rather than six or more years down the road. A delay opens wounds which may have begun to ease if not heal; (b) This is another startling revelation and that is that memories today are likely to be much better today than they will be in 2030; and (c) If there are lessons to be learned, and in all of the above cases, it seems that there are or were, the sooner these lessons are identified and steps are in place to deal with them, the better. We do not want “cowboy” operators, or possibly worse, to continue in the same vein for years, until an FAI determination appears. In some cases other agencies, for HSE, will be involved, but that is not true of every case.

When I sat in Aberdeen, I was disturbed by the delays and it seemed that in some cases, all that relatives were told was, “matters are progressing”. Whoever thought that was a satisfactory explanation for anything? One might be tempted to respond, “I sincerely hope so”. I was also disturbed by two cases, one dealt with by me and the other by a colleague. In both cases, the Crown had conducted a jury trial, but, in each, a “no case to answer” submission was upheld. In both cases, an FAI followed and, in each case, we were assured that there was more information to come out. In my case, I said to the PF that the Crown had adduced, I assumed, all relevant evidence which it thought was necessary to secure a conviction. There was no satisfactory answer and, of course I could not refuse to conduct an FAI. Nothing new came out in either case. These may be exceptions, and I hope so, but in my case, the parents of a young man who had died in tragic circumstances had to relive the whole distressing episode. I did not think it was other than appropriate to criticise the Crown for its decision to hold an FAI which to me seemed totally unwarranted. My colleague made an award of expenses against the Crown for similar reasons. That award was quashed, but the message had been delivered.

It would obviously be completely wrong to suggest that those who deal with FAIs are incompetent or do not see them as matters which should be addressed quickly. For along time, there was a unit in Crown Office itself, but following a review by Lord Cullen in 2016, there is now a “Specialist Fatalities Investigation Unit”. It may be that the COPFS is short of suitably qualified personnel to deal with FAIs. If so, it is high time this was addressed. That said, it seems to be extremely well-staffed, given complaints by solicitors in private practice that many of their staff are leaving to join COPFS (one assumes for better pay), resulting in a shortage of solicitors doing criminal defence work. There are others reasons for that. If the reason for delays in FAIs is not shortage of suitable staff, no doubt, we will be told. Perhaps COPFS will tell us (i) how many people were in the former “death” unit in Crown Office; (ii) how many are in the Specialist Fatalities Investigation Unit; (iii) how many cases the “death” unit had per annum; (iv) and how many the SFI unit gets per annum; (v) how many cases does it have where the death occurred over 12 months previously; and (vi) how are they addressing these cases.

The bottom line is that it is in the public interest to know why FAIs like the ones mentioned take what seems to be an inordinately-long time to see the light of day. Answers and action are required – urgently.

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

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