The recent headlines of ‘£200 m spent on public inquiries’ called for the Scottish Government to examine the effectiveness of public inquiries against the current background of fiscal austerity. It argued that the public required assurance that the operation of the public inquiry system is effective as to its desired outcomes and provides value for money spent.
This article examines the effectiveness of Fatal Accident Inquiries (FAI). They are a unique type of public inquiry, specific to Scotland. In outlining what the role of FAIs is within society, it is apparent that the public do not fully understand their context. Their expectations, such as they are, are not capable of being met. The financial costs of FAIs remain largely unaccounted, so assessment of their value for money cannot follow. Inherent weaknesses relating to the FAI system are discussed where little governance exists regarding the timescales in which FAIs are held and there is an absence of evaluation of any recommendations issued following the FAI’s conclusion.
Undertaking a review on how the FAI system works would highlight issues and identify potential changes, where not all would necessarily be complex to introduce.
What are FAIs?
FAIs’ structure is set out under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (2016 Act). FAIs are tasked with investigating the circumstances of a death(s) that occurred in Scotland. The Lord Advocate, as head of the Crown Office and Procurator Fiscal Service (COPFS), instructs the holding of a mandatory or discretionary FAI, depending on the nature of the death. The best known FAIs are probably Lockerbie (Pan-Am terrorist bombing ) and Dunblane (shooting at a primary school). Remember that FAIs are not an inquest under the coronial (English) system nor a public inquiry instructed by Ministers such as Piper Alpha disaster (North sea oilrig fire). Similarities do exist with the inquiry investigation process in that all require lessons to be learnt for the future.
FAIs are more limited in scope where at their conclusion, a sheriff must issue a determination under section 26 of the 2016 Act that is published. That outlines when and where the death occurred, its cause, any precautions, defects in the system of working and any facts relevant to the circumstances of the death. It may make recommendations too. Any determination is not admissible in evidence in other judicial proceedings nor under section 1(6) of the 2016 Act can a finding of civil or criminal liability be made.
Bereaved families tend not to understand the FAI’s important remit, due possibly to an absence of publicly available information. No one plans for their family to become involved in a FAI and require to deal with death formalities when still grieving. The availability of independent comprehensive information clarifying the purpose of FAIs would help.
The Scottish Government would appear as the best place to provide such information since they are responsible for ensuring and funding the Scottish death investigation process and are accountable for custody death investigations falling under Article 2 of the European Convention of Human Rights – the right to life.
The Coronial system may provide an example to follow as they have a Fact sheet on the operation of the inquest system available on the Government website.
The public need to know what to expect before any evaluation of the effectiveness of the FAI system can be commenced.
What do FAIs cost?
Discussing what public inquires cost in Scotland is apposite. However, information as to FAI costs cannot be ascertained as the services are provided by several organisations. These costs comprise those incurred by the Scottish Courts and Tribunals Service (SCTS), COPFS, and Scottish Legal Aid Board (SLAB). In most FAIs, police costs and Scottish Prison Service (deaths in custody) also need to be added. Such costs can be categorised as follows:
- Police investigating/reporting the deaths
- COPFS investigating/instructing/undertaking the FAI incurring relevant administrative and fiscal service staff costs.
- SCTS hosting the FAI in a court with staff costs including the sheriff’s salary under the judicial budget.
- Witnesses giving evidence including the NHS regarding doctors certifying the cause of death and other appropriate experts.
- On occasion, bereaved family members may be eligible for legal aid under SLAB.
These costs are not currently clearly separated under the relevant organisations’ budgets. Measuring value for money cannot therefore be undertaken. Each organisation should identify the relevant annual costs spent on FAIs. Measuring that annual spend should then be calculated against the number of FAIs that are held. Problems exist there too as to accuracy regarding the number of FAIs held annually.
COPFS estimate about 50-60 FAIs are held a year. This is not borne out by either the number of determinations published on the SCTS website nor the annual Report required for the Scottish Parliament under section 27 of the 2016 Act. Neither figures add up to as many as 50/60. Such information is also limited as knowing the number of FAIs held does not confirm how many days of court time were spent. Some FAIs are lengthy such as the FAI into the death of Sharman Weir (medical death) taking 46 court days. Others such as an FAI into a natural death in custody where no concerns were expressed over care may conclude quickly as evidence is substantially concluded by joint minute not requiring court time or witnesses attending.
Better provision of relevant statistical and financial information would allow a clear quantification of costs which would allow an effective annual comparison of the FAI costs to be evaluated.
Why hold a FAI?
FAIs are inevitably intrusive into private life but are deemed necessary in societal interests to examine the circumstances of a death to allow lessons to be learnt. A FAI into deaths resulting from a fire in a bonded warehouse at James Watt Street, Glasgow showed how barriers on the windows had prevented the rescue of the trapped workers. That resulted in improvement of building standards when adapting buildings from use as bonded warehouses. Similarly, the Ibrox disaster resulted in safety at sports stadiums being improved.
Delays have beset FAIs for years with no public timeline existing to ensure that they are held in a timely manner for lessons to be learnt. Recent inquiries into the deaths in the M9 crash and the death of Warren George Fenty (in prison concluding 10 years after his death) highlight the ongoing weaknesses of the system. Timelines in holding a FAI can be broken down as follows:
- From the date of the death until all death inquiries are completed and the FAI notice issued.
- From the date of the FAI notice initiating the court process until the evidence is concluded.
- From that date until the determination is issued by the judge.
Determinations themselves do not require to set out what the timescales were though delays may occasionally be referenced. Delays are therefore not effectively challenged as none of these periods outlined above must be completed within statutory timescales. That absence undermines the FAI system where determinations may be published many years after the date of death. Lessons to be learnt are delayed or worse, changes that were required have been made, rendering the FAI largely ineffectual. That absence of scrutiny on timescales lacks transparency as well as accountability as to responsibility for the delay.
In England, any death where the inquest is held over a year after the death requires a report, justifying the delay to the Chief Coroner. Introduction of a similar system in Scotland would allow for greater scrutiny demonstrating where and why delays occur and how best to address these issues. On occasion delay may be justified in complex cases.
FAI determination
The FAI may make recommendations which need to be meaningful and addressed to a party with whom responsibility for making change lies. Since the 2016 Act does not require anyone to respond to any recommendations that are made or require subsequent judicial scrutiny, any recommendations are not enforceable and consequently, ineffective.
With the coronial system, the coroner may issue a Prevention of Future Death Report, published on the website forming a record of the recommendation(s). There is a requirement that the organisation to whom such recommendation(s) was made must respond within a set timescale. That appears a more robust system, but it does not ensure changes result.
There is a somewhat parochial approach to death investigations. Surely greater opportunity could be seized to ensure an effective exchange of information between the coronial service and COPFS/Scottish Government over deaths. Since similar circumstances arise regarding deaths in England and Scotland, sharing the results of the inquest/inquiry might be appropriate. With heightened awareness of climate change, the inquest into Ella Kissi Debrah’s death which highlighted the effects of air pollution and asthma provided an example of circumstances of a death that could support appropriate learning too for Scotland.
Improving the quality of the recommendations and a requirement for organisations to respond with the introduction of judicial scrutiny would enhance the FAI effectiveness. Sharing of information from deaths irrespective of their location would benefit society going forward.
Conclusion
With the absence of what seems relevant information, the effectiveness of FAIs as a subset of public inquires cannot be examined. Evidence appears to exist outlining that they are not as effective as they should or that their effectiveness could be improved. FAI provide opportunities to change and identify practices that can be improved from tragic circumstances. Reflection allows for an examination of the circumstances of a death. It analyses the issues and permits evaluation and identifies actions to be taken to deal with similar situations in the future or any general changes that can be made. To continue the FAI system in its present form prohibits effective scrutiny as to effectiveness. Instructing a review would ensure that effective monitoring and evaluation can take place where changes may be introduced without the need for major legislative reform. Those bereaved deserve more as does the public in funding this important death investigation system.
Gillian Mawdsley is a Scottish solicitor currently teaching academically at various universities with a longstanding interest and experience, as well as recent publications, on fatal accident inquiries.