Douglas J. Cusine: No excuse for FAI delays

It is not in anyone’s interests for FAIs to be the subject of inordinate delays. When my former colleague, Sandy Jessop, was the PF of Grampian, Highland and Islands, there was a helicopter crash off Shetland in which over 20 were killed. The incident took place in a November, but Sandy started the FAI in the following February. The cause of death in each case was the same, but he had to deal with over 20 families, assess what must have been technical evidence and put in place whatever steps were required to bring the matter to the court.

One wonders why that sort of approach does not seem to be adopted now. it has to be accepted that, in some instance, the Crown will have to consider the possibility of criminal charges, which may take precedence, but not every case has that “complication,’ and whether it does or not, it is the Crown’s duty, in my view, to start an FAI as soon as possible.

There are a number of reasons why delays, especially long ones, are undesirable. The first is about the family. Of course, they will be grieving if an FAI takes places within a short time of the death. That is unavoidable, but is it better to do that than delay and reopen “wounds” which might have begun to heal.

Secondly, there is the issue of witness recollection. One need say no more, except to observe that in the case with which the sheriff was involved, no crew member could be found to give evidence. One can only guess how any relatives of the deceased reacted to that. Thirdly, if it is possible that there was something “irregular” about say, a system of work which might have been the cause of, or contributed to the death, the sooner that is exposed, the better.

In some instances the Health & Safety Executive will be involved, almost immediately, and so any such matters will be addressed and remedied. If, however, there is no such early action, any “cowboy” operation will continue to operate with the potential for further accidents to occur. Responsible operators will put their houses in order as soon as possible; irresponsible one will not.

In my determination in one FAI, I congratulated the Crown in starting the FAI within, if I recall, eight months of the death. At that time, that was unusual; hence my remark. The Crown Office now has a unit that specialises in FAIs and yet, we still see long delays. In the past, it may be that FAIs were just handed out to whoever was available and that person may have been inexperienced which could have resulted in a delay. With a specialist unit, there is no such excuse.

It is difficult to imagine how a PF explains to relatives why it has taken five years to start an FAI and even more so, if the delay has been 10 years. These deals an easily create the impression that the Crown does not care about the relatives’ feelings, or see the need to ensure that any bad practices are exposed timeously.

The following is fiction, but not fantasy: a company employs 25 people at its factory. X is killed when operating a piece of machinery. Locals say that numerous complaints had been made to the operators over a period of years, but these have been ignored. The Crown starts an FAI five years after the event. In the interim, those who work in the factory and their families remain concerned about the safety of the workforce. Satisfactory?

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