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In the public interest

14 October 13

Legal procedures following fatal road accidents need to be reformed in the same way as is proposed for FAIs, so that families are not left waiting indefinitely for compensation and closure

by Brenda Mitchell

Patricia Ferguson’s member’s bill to radically overhaul the fatal accident inquiry system highlights shortcomings in our current legal process that often leave the deceased’s family waiting years to find out the truth about their loved one’s death. Unfortunately, a similar situation is faced by families of people killed on our roads, who are left hanging by the criminal justice system.

The debate Ms Ferguson’s bill prompts is how we wish to treat the grieving families in what can be very traumatic and devastating circumstances.

As a personal injury lawyer of 25 years’ standing, I know all too well that there appears to be a fundamental misconception about what the law can and should be doing in the aftermath of a fatal accident. Therefore, taking a lead from Ms Ferguson, I believe that the time is right for the legal profession to review such existing procedures with the interests of the bereaved at the foremost of our minds.

Fatal accident inquiries (FAIs), held under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, must be held in cases of death in custody or as a result of an accident at work. An FAI may also be held in other cases of sudden, suspicious or unexplained death, or death in circumstances that give rise to serious public concern, as deemed by the Lord Advocate.

Their purpose is not to apportion blame for the death in either the civil or criminal sense, but is essentially a fact finding exercise carried out to learn lessons and prevent similar situations in the future for the public good. However, while this undoubtedly has its place, the pursuit of the public interest has often been at the expense of the interests of bereaved families. The current system leaves too many families waiting years for information about how and why their loved ones died, denying them the chance of closure and the ability to move on with their lives.

Information bar

In proposing the member’s bill to overhaul the FAI system, Patricia Ferguson condemned current practices for investigating sudden and accidental deaths as “not fit for purpose”. In particular, she stated that the current system had left many bereaved families excluded, exasperated and angered, and that her bill would “put the families of the deceased at the heart of the process”.

Grieving families who have lost sons, daughters, husbands and wives in fatal collisions on the roads, often experience lengthy delays before careless or dangerous drivers are brought to trial. During that period the Crown Office and Procurator Fiscal Service (COPFS) will frequently deny family members, or their appointed civil lawyers, access to information that would allow them to advance a civil claim for compensation at an early stage, the reason being that it could be prejudicial to the criminal prosecution.

On 5 January 2012, Andrew McNicoll was killed in a road traffic collision whilst cycling to work. His family has heard recently that a trial date will now be fixed for criminal prosecution before the end of the year. In the intervening period, now approaching two years, the procurator fiscal still has not released any information that would allow the family to better understand how he died or allow their legal representatives to properly investigate a claim for damages in civil law. The position is that any release of papers prior to the conclusion of criminal proceedings could be prejudicial to the criminal trial, where the procurator fiscal acts in the interests of the public in securing convictions for dangerous or careless driving offences.

On 1 October 2012, Brian Allan, an experienced motorcyclist, lost his life when he attempted to avoid colliding with a minibus that had crossed his path. A police investigation was carried out and papers were submitted to the procurator fiscal to consider criminal proceedings against the driver. From the period October 2012 to May of 2013, the procurator fiscal instructed that no information be released to Mr Allan’s family or legal representatives until a decision was taken. Subsequently the procurator fiscal took the decision not to proceed with a criminal case.

An abstract police report, which would simply have detailed the registration numbers of vehicles involved and insurance details of the drivers, allowing the family to commence a civil action, was requested and denied. It was reasonably believed the death was caused by the negligence of the driver, but no claim could be intimated without details of the third party.

Humane considerations

These are not isolated incidents, and many bereaved families and indeed seriously injured victims of road traffic collisions are denied access to justice pending the outcome of lengthy criminal investigations and proceedings. But surely the devastation caused to families and the shock of a sudden death demands that we treat victims and their families with care and compassion?

The woeful system we have in place to conclude investigations and bring proceedings to trail is unacceptable, and as highlighted by Patricia Ferguson, “It surely should not be too much to ask that the process for investigating death does not cause further agony and grief.”

We need to restore a level of humanity to our legal system across the board so that a bereaved family can investigate the circumstances of the tragedy, for them to grieve properly in a timely manner (not taking months or years) and subsequently commence a civil action and if, for instance, the deceased was the breadwinner, receive adequate financial support.

A better way

A recent study by Scotland’s Campaign against Irresponsible Drivers, from the University of Dundee, into the current system of fatal road collision investigations and the level of access to information afforded to the victims’ families, described the effects of a road death as every bit as traumatic as a homicide.

That is, the impact on the nearest relatives and friends of this type of death is typically sudden, violent and can have huge emotional and financial consequences.

Its research went on to examine the processes in place across a selection of European countries, including Scotland, Austria, Latvia, Norway, Romania, Sweden, Switzerland, the Netherlands, Germany, Belgium, Greece, Denmark and Finland.

The results suggested that best practice was seen in countries where fatal road collisions are investigated not solely by the police, but alongside an independent multi-disciplinary investigating body which publishes a report with almost immediate access granted to the bereaved families.

It observed that the current rules within Scots law are not fulfilling the victims’ rights, and that because there is no legal right for the family of a road death victim to obtain the investigation documentation, this is resulting in secondary victimisation.

In other words, because the law denies the family of the deceased sight of the investigation documents, they are then forced to attempt freedom of information requests, which were not designed for this purpose. The resulting delays, incomplete responses and sometimes confusing process have been found to cause further emotional distress, grief, anxiety, suffering and in some cases a feeling that the truth is being withheld.

Public interest

Road deaths are a unique type of death. They are sudden and violent and, unfortunately, all too frequent. This needs to be recognised by the Scottish Government and other agencies involved in the formulation of road safety policy, so that improvements in post-impact care, tailored to deal with the unique nature of road deaths, can be implemented.

Rather than leaving the support of victims to the victim support sector, Scots law and policy needs to recognise that the support of victims and victims’ families is an integral part of a comprehensive and successful road safety strategy. Enforcing traffic laws is hugely important for road safety and for saving lives. If cases take months and years to bring to conclusion, it is quite simply unacceptable. The criminal justice system must respond more quickly and effectively to the needs of victims and the needs of bereaved families. Cases involving road deaths need to be fast tracked and families supported through the process. Importantly, information must be provided to families or their legal representatives at an early stage to assist any investigation that would help any civil claim for damages. If the victim was a breadwinner, it is a disgrace that the family should suffer the pain and shock of death and then be denied financial support pending criminal investigations lasting years.

It is accepted that the procurator fiscal will act in the public interest, but the members of the public most interested in the outcome of any criminal proceedings are those who have directly suffered, and the system needs to be overhauled in the same ways as it is intended to overhaul our outdated system of fatal accident inquiries.

As nations across Europe have demonstrated, measures can be put in place to safeguard the human interests of the family at the centre of legal proceedings. It is time for Scotland to do the same.

Brenda Mitchell is the founder of Cycle Law Scotland, a specialised legal service for those involved in a road traffic accident

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