« Previous | Contents | Next »
Listen
Section 4: Holding an FAI
4.1 This section of the paper is concerned with cases in which it is decided that application is to be made by the procurator fiscal for the holding of an FAI.
FAI and the full hearing of the FAIA The lapse of time between the death and the giving of the decision that there should be an
4.2 Before April 2007 the COPFS aimed to have mandatory FAIs held within 24 weeks of the reporting of the death, and discretionary ones within 12 weeks of Crown Office instructions. However, these targets were abandoned last year because the meeting of them was not always within the control of the COPFS, but depended on other factors, such as court programming. Nevertheless, the COPFS still compile statistics on this basis. In 2007/2008, only 4 of the 34 mandatory FAIs were held within 24 weeks from the date of the reporting of the death to the holding of the FAI; and of the 9 discretionary FAIs only 1 was held within 12 weeks of Crown Office instructions.
4.3 Some contributors have claimed that the time taken by the COPFS to reach the point of decision (whether for a mandatory or a discretionary FAI) is too long. It has been claimed that the delay is maybe due to procurators fiscal being over-worked and under-resourced, and to the competing demands of criminal cases for which there are mandatory time limits within which they can be brought. It has been emphasised by some that delay can only increase the distress for relatives.
4.4 The procurator fiscal must give public notice of the holding of an FAI and intimate the matter to relatives, including any civil partner, of the deceased and other relevant parties at least 21 days before the date of the full hearing of the FAI. 22 It is to be noted that while civil partners should receive such intimation they have no right to appear.
4.5 It has been said by some contributors that insufficient notice of the application for an FAI is given (i) to the interested parties, such as to give them enough time to prepare; and (ii) to the court, for the purpose of scheduling a hearing as soon as practicable. It has been suggested by some that the work on prospective and possible FAIs should be supervised in the COPFS by a dedicated co-ordinator, who would have the responsibility of overseeing progress and communicating with the interested parties.
4.6 It is noted that there is provision for sheriffs to make an order fixing a time and place for the FAI, which "shall be as soon thereafter as is reasonably practicable" 23 on receipt of an application. However, no similar provision exists for the investigation by the COPFS.
10. Is adequate notice given to interested parties in advance of an application being made?
B The guidance and support of relatives
4.7 The work of the procurator fiscal is supplemented by that of Victim Information and Advice of the COPFS (" VIA"). It provides information and advice to relatives where an FAI is to be held or where there will be, or there are likely to be, significant further inquiries into a death.
4.8 A recent report of the Inspectorate of Prosecutions in Scotland 24 highlighted good practice in the liaison between procurators fiscal and relatives. However, it has been said by some contributors that the amount of support which they get from procurators fiscal can vary. Some have said that there is a need for easily understood information about how the system works and what it can and cannot achieve.
4.9 VIA has a role in providing information and advice to relatives following a reported death, but not emotional support. It can provide details of relevant support agencies. However, it appears that few such agencies exist. Where a death is reported for consideration of criminal proceedings, the relatives will be supported by Victim Support Scotland. However, where an FAI is to be held the relatives do not receive similar support from that organisation.
11. Is adequate advice, information and support provided to the relatives of the deceased?
C Legal Aid
4.10 In 2006/2007, the Scottish Legal Aid Board (the SLAB) received 23 applications for civil legal aid in respect of FAIs. Of these, 8 were granted legal aid.
4.11 The SLAB considers probable cause and reasonableness in dealing with applications for legal aid, including for legal representation at an FAI. As regards reasonableness, "an application should focus on why the applicant needs separate legal representation at the FAI. Except where the application is made by a relative of a person who died in custody, the applicant should address whether the applicant could reasonably expect the procurator fiscal, in fulfilment of [his or her] statutory duties, to produce all relevant evidence about the circumstances of the death, and identify any particular issues which the applicant intends to pursue, but cannot expect the procurator fiscal to pursue". 25
4.12 Thus it is understood that the SLAB requires to be satisfied that there is some identifiable purpose in the applicant being separately represented at an FAI. Usually it is because an applicant is seeking to put together a case for damages. Where however an applicant simply wants the chance to put forward their unspecified arguments or merely wants to be heard with no specified purpose being given for doing so, the SLAB will consider whether someone who had to pay their own legal costs would incur this expenditure. This may result in the application being refused.
4.13 It is to be noted that, whereas it is not competent for the sheriff to attribute or apportion blame, applicants who intend to make a case that others are to blame for the death are more likely to receive legal aid.
4.14 It has been said by some contributors that relatives require legal representation to put across their issues and concerns, and to understand the proceedings. Some relatives will be above the limit for legal aid, and may be deterred by the cost of legal representation. That cost is irrecoverable because expenses cannot be awarded to parties following an FAI. 26 However, in some cases the lack of funding would breach Article 2 of the ECHR. 27
4.15 As against that, it is the duty of the procurator fiscal to adduce evidence with regard to the circumstances of the death. It has been said by some that this means that the state provides the relatives with an independent party who can raise the relevant issues. On this view, the provision of legal aid to the relatives for their separate legal representation might be said to duplicate the expense to the state.
4.16 However, the procurator fiscal is independent of any party, including the relatives, and does not act as their representative at an FAI. According to the COPFS guidance, where necessary the procurator fiscal will indicate to the relatives "that it is unlikely that the [he or she] will be able adequately to represent their interests and concerns at the Inquiry and that separate representation is considered appropriate". 28
12. Is the current approach to the provision of legal aid to relatives appropriate?
« Previous | Contents | Next »