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Section 4: Holding an FAI
4.1 This section of the paper was concerned with cases in which it is decided that application is to be made by the procurator fiscal for the holding of an FAI.
A The lapseof time between the death and the giving of the decision that there should be an FAI and the full hearing of the FAI
4.2 Some contributors pre-consultation said 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.
10. Is adequate notice given to interested parties in advance of an application being made?
4.3 Fifty-seven responses were received to this question. Fifteen responses were received from lawyers and their representative bodies; fourteen from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; nine from other individuals and groups including academics, charities and unions; seven from relatives; six from the judiciary; three from procurators fiscal, including the COPFS; two from investigators; and two from expert witnesses. There was no consensus on this question.
4.4 A number of respondents took the view that not enough notice was given to interested parties in advance of an application being made. For example, Sheriff J. P. Murphy said:
"28 days would be better, and would give time for a preliminary hearing in 14 days or so".
4.5 However, some respondents took the view that adequate notice was given to interested parties in advance of an application being made. For example, Balfour + Manson LLP said:
"It is our view that notice given is adequate but experience has shown that procedural hearings are perhaps not used as effectively as possible with resultant delay in the Inquiry itself while further information is obtained/produced."
4.6 Some respondents also raised the question of delay between the death and the determination. For example, Sheriff J. P. Murphy said:
"In 1954 I took part in an FAI in Dumbarton (into the death of a railway worker) which took place 7 or 8 weeks after the death, and with a jury this would be about the norm then. In January 2009 a determination was delivered timeously in Glasgow relating to a death as the result of a fairly straightforward accident at work on 12 th July 2005. This is not acceptable. It makes a mockery of the whole process… There are many times fewer FAIs than there were. No juries now have to be cited. No doubt there is more crime to be prosecuted, but there are hundreds more fiscals than there were. These things are largely a matter of perception. If it is perceived that FAIs will be heard quickly and efficiently they will be. Some time limit must be placed on the Crown Office within which they have to apply for an FAI. There should be provision for the court to grant an extension of time in special cases like the Clarkston explosion or the Lockerbie disaster. It appears the Crown Office perception of the gravity, importance and urgency of an FAI is out of kilter."
4.7 Other respondents used this question to comment on preliminary hearings, the broadening of the definition of "interested parties", disclosure, and specialist judges, specialist fiscals and specialist lawyers.
B The guidance and support of relatives
4.8 Some contributors pre-consultation said that the amount of support which they get from procurators fiscal can vary. Some also said that there is a need for easily understood information about how the system works and what it can and cannot achieve. It appears that few such agencies exist to support relatives. 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?
4.9 Forty-five responses were received to this question. Thirteen responses were received from lawyers and their representative bodies; nine from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; seven from other individuals and groups including academics, charities and unions; five from relatives; five from the judiciary; three from procurators fiscal, including the COPFS; two from expert witnesses; and one from an investigator. There was no consensus on this question.
4.10 A number of respondents took the view that there was inadequate advice, information and support provided to the relatives of the deceased. However, some respondents took the opposite view.
4.11 On the subject of Victim Information and Advice of the COPFS ( VIA), the COPFS said:
" VIA, the dedicated Victim Information and Advice service offered by COPFS, has a particular role to play in providing information and advice to nearest relatives in… cases involving deaths reported to the Procurator Fiscal."
4.12 However, some of the relatives had never heard of VIA. For example, Mr Peterson said:
"From personal experience, my family was not made aware of VIA, nor of any useful information concerning FAI procedures."
4.13 Victim Support Scotland commented that its "current funding does not include service provision to families taking part in FAIs, so if our remit should be extended, resource implications must be addressed."
C Legal Aid
4.14 Some contributors pre-consultation said that relatives require legal representation to put across their issues and concerns, and to understand the proceedings.
12. Is the current approach to the provision of legal aid to relatives appropriate?
4.15 Forty-three responses were received to this question. Twelve responses were received from lawyers and their representative bodies; eight from other individuals and groups including academics, charities and unions; seven from the judiciary; six from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; six from relatives; two from procurators fiscal, including the COPFS; one from an expert witness; and one from SLAB. There was no consensus on this question.
4.16 A number of respondents took the view that the current approach to the provision of legal aid to relatives was inappropriate. For example, the Faculty of Advocates said:
"The current approach is unsustainable. It is impossible for relatives to participate effectively in important inquiries without legal representation."
4.17 However, some respondents took the view that the current approach to the provision of legal aid to relatives was appropriate. For example, East Ayrshire Council said:
" FAI is a fact-finding inquiry. The current legal aid provision is acceptable."
4.18 SLAB said:
"In devising its approach to the provision of legal aid to relatives of the deceased, the Board gave careful consideration to the function of the FAI. The Inquiry is a fact finding exercise and not one which seeks to apportion blame or fault. Individuals who apply for civil legal aid may be anticipating further proceedings once the FAI has concluded such as reparation proceedings. Civil legal aid may be applied for separately for such proceedings and, as such, where funding is to be made available for representation as an FAI, the Board has to establish that there is a clear basis for an individual seeking their own representation at such an inquiry.
The section on legal aid sets out some of the issues that may face a relative of the deceased. It is however important to note that civil legal aid is not only available to relatives of the deceased. We may make funding available for representation of individuals who may find themselves facing further litigation as a result of an FAI. For example, an individual may be advised to seek representation because of the potential for criminal proceedings or other civil proceedings that may be brought against them following the FAI. Given this, the emphasis in the section on legal aid being made available to relatives of the deceased is only part of the availability of legal aid."
4.19 There were numerous calls for the misconception regarding the role of the procurator fiscal to be dealt with by changes to the legal aid provision in respect of FAIs. For example, amongst the members of the judiciary, the Sheriffs Principal, the Sheriff's Association, Sheriffs Baird, Murphy and Crowe all had misgivings about the misconception that the procurator fiscal is able to represent the relatives. The Scottish Committee of the Administrative Justice and Tribunals Council had similar concerns, commenting that "the availability of legal aid is somewhat unclear and leads to relatives of the deceased being confused about their relationship with the Crown (Procurator Fiscal), and the Procurator Fiscal's role in the FAI".
4.20 The Judges of the Supreme Courts referred to unfairness of the employers being "likely to be better able to afford legal representation than relatives and, albeit the proceedings are not adversarial, there may well be an issue about equality of arms". This was one of a number of similar comments. They also commented that it is "not self-evident why any probabilis causa litigandi other than the relationship to the deceased should be required before state funding can be attracted". Others, such as Sheriff John A. Baird agreed. He believed that if a representative of the family qualifies financially, "he or she should have legal aid as a matter of course". The Judges of the Supreme Courts also suggested that "where there are multiple fatalities arising out of one incident, it appears… that it is at least arguable that separate representation for every family may not be necessary, depending on the circumstances".
4.21 The COPFS, Elizabeth Mauchland and the Medical and Dental Defence Union of Scotland raised the fact that the legal aid problems can lead to FAIs being adjourned and delayed.
4.22 The Mental Health and Disability Sub-Committee of the Law Society of Scotland and ENABLE Scotland commented that if there is a move towards a more informal tribunal setting then it might be better to discourage legal representation and use alternatives such as advocacy.
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