Publication - Research and analysis

Consultation on Proposals to Reform Fatal Accident Inquiries Legislation - Analysis of Consultation Responses

Published: 21 Nov 2014
Part of:
Research
ISBN:
9781784129347

This report provides an analysis of responses to the Scottish Government’s Consultation on proposals to reform Fatal Accident Inquiries legislation. The consultation ran from 1 July and 9 September 2014 with 58 responses received.

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Contents
Consultation on Proposals to Reform Fatal Accident Inquiries Legislation - Analysis of Consultation Responses
4 Delays

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4 Delays

4.1 The consultation paper notes that there has been some criticism in recent years in relation to what are seen as unacceptable delays in holding FAIs, with the main concern being about the time between a death and the resulting FAI taking place. Questions 9-15 of the consultation focused on this issue and, specifically, on delays between the date of death and the start of an FAI, preliminary hearings and other options to speed up an FAI.

Delays between the date of death and the start of an FAI

4.2 Incidents resulting in FAIs are likely to involve consideration of criminal proceedings and/or lengthy expert investigations by regulatory authorities. The consultation paper notes that if an independent expert report is required, the instructing, obtaining and consideration of it will take months or longer and that these delays are to a large extent outwith the control of the Crown. The paper also notes that the need to conduct a criminal investigation or an investigation by HSE or an Accident Investigation Branch also means COPFS do not have control of the entire process. Following any inquiries, a decision then has to be taken as to whether criminal proceedings are appropriate or whether an FAI is required (in circumstances where this is discretionary). Under the current legislation, it is open to the Lord Advocate to decide that it is unnecessary to hold an FAI if the circumstances of the death have been sufficiently established in criminal proceedings.

4.3 Lord Cullen did not recommend time limits for FAIs and in a January 2014 letter to the Cabinet Secretary for Justice wrote that "It is plainly not practical or realistic to make it mandatory that an FAI must open within a certain period of the date of the death of the deceased. That is because of the diversity and potential complexity of the cases, and because other investigations or proceedings may have to be completed first."

Question 9: Do you agree with Lord Cullen's view that "it is plainly not practical or realistic to make it mandatory that an FAI must open within a certain period of the date of the death of the deceased… because of the diversity and potential complexity of the cases" which may mean that an incident is not properly investigated?

4.4 The balance of opinion at Question 9 is set out in Table 9 below. A large majority of those respondents who answered this question agreed with Lord Cullen's view.

Table 9: Question 9 - Response by Respondent Type

Respondent Type

Yes

No

Not Answered
No View

Total

Insurance industry bodies or firms

4

-

-

4

Legal bodies or firms

9

3

2

14

Local authorities

6

-

1

7

Public bodies

11

1

3

15

Representative groups

3

3

3

9

Total Organisations

(33)

(7)

(9)

(49)

Individuals

4

1

3

8

TOTAL

37

8

12

57

4.5 Forty five respondents made a further comment, with many (including both those who had agreed and disagreed at Question 9), noting their concern about unacceptable delays. The Association of Personal Injury Lawyers was amongst those expressing concerns that the recommendations already implemented to reduce delays are not working and that unsatisfactory delays are the norm at present. They were amongst the respondents who cited specific examples of currently delayed cases or of historic FAIs that have taken many years to reach their conclusions. The implications of these delays were also highlighted, and in the context of work-related deaths Unite suggested that:

"The failure to hold a FAI in a time-bound manner allows the continuation of potentially fatal working conditions and practices to continue undiagnosed and therefore unresolved - increasing the possibility of repeated fatal accident occurrence."

4.6 Other examples given of the possible damage that can result from FAIs being delayed included that physical evidence may deteriorate over time and that witnesses may struggle to recall events that happened a number of years ago.

4.7 The potential complexity of many cases was also noted, although the Police Investigations and Review Commissioner pointed out that not all cases will be complex. Nevertheless, some respondents highlighted the variety of factors - such as a death occurring abroad - which can slow progress and contribute to a delay. Other respondents commented on procedural issues which can contribute to delays. For example, the Scottish Court Service suggested that time limits could have the unintended consequence of requiring hearings to be adjourned if parties are not fully prepared. Other specific reasons given for delays occurring included:

  • HSE reported that its investigations can be delayed because of the need for police to exclude breaches of the Corporate Manslaughter and Corporate Homicide Act 2007. The police retain "primacy" for these investigations, meaning HSE can find it difficult to influence the pace of the investigation.
  • NHS National Services Scotland commented that their Central Legal Office often receives very short notice of the need to attend an FAI and hence has to seek an adjournment to allow investigations to continue.
  • NHS National Services Scotland also noted that it may only be at a late stage that witnesses realise that they are the subject of criticism by the Crown and that at this stage they make take the decision to seek legal representation, again resulting in adjournment.

4.8 A particular concern was the distress these delays may cause and many of those who either took no view or did not agree with the introduction of mandatory timescales stressed that delays must be minimised and FAIs held as soon as practically possible. A small number of respondents also stressed the importance of keeping families or other interested parties informed and given information on the FAI process as soon as possible.

4.9 Reasons given for not supporting mandatory timescales included that: an FAI is not usually heard before any potential criminal trial is concluded; many of the investigative bodies are reserved organisations and thus beyond the control of the Lord Advocate; and given their finite resources, imposing unrealistic timescales on COPFS could undermine the quality of their investigations. Concerns were also raised that imposing time limits could simply result in FAIs being opened on a mandatory date, but then adjourned. The Scottish Court Service suggested that strict time limits would limit their flexibility to programme the most appropriate accommodation, judicial expertise and services for the court hearing.

4.10 Many of those who did not support mandatory timescales still offered suggestions for improving the current approach. Suggestions often focused on the need for transparency and clarity. For example, the Mental Welfare Commission for Scotland would like to see:

"…a clearer and more transparent decision making process with timescales for relevant stages, to reduce the risk of pressure of other business in the COPFS or elsewhere holding up the final decision."

4.11 Specific suggestions made included:

  • Legislation should set out that the Crown will use its best endeavours to bring the matters to court at the earliest opportunity. The Sheriffs Principal suggested that this would enable the judicial bench to make enquiries if there were concerns about the time taken to make progress with a case.
  • In non-complex cases, it would be realistic to set a notional timescale for opening an FAI, along with an interim date for reviewing the feasibility of adhering to that date.
  • Consideration should be given to setting a maximum period between the date of death and the point at which a Petition to hold an FAI would require to be presented if the Crown wished to reserve the option to proceed with an inquiry even if investigations are incomplete. An alternative suggestion was for a maximum period between the date of death and the commencement of an FAI, subject to extension on cause shown. However, the Care Inspectorate noted that consideration would have to be given to the potential for FAIs to become "time-barred" in a way which operated to the detriment of the public interest.
  • There could be an option whereby a timescale ran from the conclusion of a criminal trial (or when the Procurator Fiscal decides not to bring criminal charges) or completion of investigations by other agencies (such as HSE). This suggestion was made by the 4 Insurance Industry Respondents.
  • More specifically, the Forum of Insurance Lawyers (Scotland) suggested a time limit should be set for a decision by the Lord Advocate as to whether an FAI is to be held or not. They went on to suggest that one way of balancing the Lord Advocate's need for adequate time to consider the position with the interests of the public in not allowing unreasonable delays to occur would be to provide a 'backstop' such as a report to an Outer House judge. The Forum also suggested that the Lord President could nominate a Court of Session judge to take a supervisory role in the process.
  • An early formal investigation review process, involving the police, HSE and COPFS. Part of their considerations would be around minimising delay. In support of this suggestion, HSE noted that this tripartite approach is encouraged in Work-related Deaths: A Protocol for Liaison.[4]
  • The Scottish Government should issue guidance to help prevent undue delay. More specifically, guidance for less complex deaths in custody, especially where the cause of death is determined as natural causes at post-mortem, was suggested by the Scottish Prison Service.
  • There should be a procedure for keeping families updated and made aware of the reasons for any delays.

4.12 Those who disagreed with Lord Cullen and by extension thought that mandatory timescales should be introduced, raised a similar range of issues, although sometimes drew different conclusions about the best way forward. Specific comments included:

  • Much greater transparency is required and processes must focus on serving the public interest, whilst also doing everything possible to involve the families of victims. This very much echoed the views set out at 4.9 above. Unite suggested that, in the first instance, this should involve written clarification from the Lord Advocate when exercising his powers in relation to an FAI. There should also be avenues by which families can challenge that decision-making.
  • There are many other areas of the law in which time limits already exist, such as bringing of prosecutions or holding inquests and, while time limits may be arbitrary, they could also bring focus.
  • There could be target dates based on the complexity of the FAI.
  • There should either be a preliminary hearing, which would be adjourned or an FAI should open within a certain length of time from the date of death. This would ensure judicial oversight begins early in the process.

4.13 Three Trade Union Respondents to the consultation (RMT, STUC and Unite) expressed strong concerns about the current proposals and correspondingly strong support for the proposals in Patricia Ferguson MSP's Inquiries into Deaths (Scotland) Bill. The STUC and RMT suggested that the Lord Advocate should decide whether an FAI should take place within 6 months of the date of death, with the STUC noting an alternative option of one month after the conclusion of court proceedings. The RMT proposed a requirement for a preliminary hearing to be held within 2 months of an FAI being granted.

4.14 In recognition that exceptional circumstances could arise, the STUC and RMT, along with Action against Medical Accidents, suggested that there could be discretion to extend time limits, although a full justification for the need to do so should be made public and the case closely managed to ensure a conclusion is reached.

Preliminary hearings

4.15 Lord Cullen recommended that a preliminary hearing should be heard in each case and it is proposed that preliminary hearings should become standard practice unless the sheriff dispenses with it if, for example, the outcome of the FAI is likely to be purely formal. The Scottish Court Service supports the use of preliminary hearings in all FAIs as a mechanism to estimate the length of time required for court hearing days in order to ensure suitable hearing dates and accommodation facilities are allocated.

Question 10: Do you agree that preliminary hearings should be held to help speed up the process of FAIs?

4.16 All of the respondents who answered this question agreed that preliminary hearings should be held to help speed up the process of FAIs.

Table 10: Question 10 - Response by Respondent Type

Respondent Type

Yes

No

Not Answered
No View

Total

Insurance industry bodies or firms

4

-

-

4

Legal bodies or firms

13

-

1

14

Local authorities

6

-

1

7

Public bodies

11

-

4

15

Representative groups

5

-

4

9

Total Organisations

(39)

-

(10)

(49)

Individuals

5

-

3

8

TOTAL

44

-

13

57

4.17 Thirty eight respondents provided an additional comment at this question, with a number making a broad statement in support of the use of preliminary hearings and their potential to lead to a quicker process and, possibly, to shorter and more focused FAIs. Many respondents also noted that preliminary hearings are already used in a number of other types of proceedings or pointed to the apparently successful use of preliminary hearings for FAIs in Edinburgh and Glasgow sheriff courts.

4.18 Many respondents commented on the potential benefits of holding preliminary hearings, with a number focusing on the potential of administrative and practical matters being dealt with early on, allowing subsequent efforts to focus on the most important issues. For example, the Sheriffs' Association suggested that:

"The first preliminary hearing should take place well in advance of the FAI in order to get interested parties around the table and focus the issues. Further hearings can monitor progress and deal with issues such as the identification of uncontroversial evidence and the position regarding the citation and availability of witnesses."

4.19 Other benefits suggested included that early discussion of evidence would help prevent parties being 'ambushed' by lines of evidence during the FAI and that the court would be able to make recommendations about lines of potential evidence. One Individual Respondent commented that they should include input from relatives or representatives regarding any unusual events or incidents they feel need to be addressed.

4.20 Some respondents raised issues that would need to be considered should preliminary hearings be introduced. For example, it was suggested that issues of cost and resourcing may need to be looked at and a small number of respondents commented on the need to consider the preliminary hearing process from the perspective of families of victims. In particular, one Legal Firm Respondent (Pinsent Masons LLP), suggested that the purpose of the preliminary hearing must be clearly explained to the family to avoid situations where family members attend only to be disappointed at the lack of discussion about the facts of the case. It was also suggested that an intermediate hearing could be held at the completion of any criminal proceedings and used to inform both families and COPFS as to when the FAI is likely to be held.

4.21 Two respondents raised specific concerns in relation to preliminary hearings. HSE suggested that from a resource perspective, and based on their experience in England and Wales, the timing and content of the hearings will need to be controlled. The RMT was concerned that the procedural details for Preliminary Hearings have yet to be drawn up. They sought clarification as to when these will be available and suggested that a further public consultation on them would be required.

4.22 A small number of other respondents also raised specific points about the procedures for holding preliminary hearings. The Law Society of Scotland commented that a formal set of procedural rules of court, including rules for the conduct of preliminary hearings, would be appropriate. The Sheriffs Principal concurred, suggesting that the Sheriff Principal Practice Notes be replaced by Rules of Court. The Law Society of Scotland went on to suggest that, in addition to being published on the Scottish Court Service website, the Rules should also be published in the volumes of Criminal and Civil Court Statutes.

4.23 There was also some support for the use of technology, in particular for case management conferences being held by telephone and email being used for other exchange of information. It was also suggested that preliminary hearings would give the courts an early intimation of special requirements for witnesses, for example, the use of video links or other technology.

4.24 Finally, the STUC restated their support for Patricia Ferguson MSP's proposal that FAIs should commence ahead of any criminal proceedings and be adjourned if necessary.

Other options to speed up FAIs

4.25 The remaining questions in the Delays section considered other options for speeding up FAIs. They covered: pre-hearing meetings of experts; hearing some business in sheriffs' chambers; the submission of evidence in advance; and transferring cases to a different sheriffdom.

Question 11: Will having pre-hearing meetings of experts speed up FAIs?

4.26 A large majority of the 37 respondents who answered Question 11 agreed that having pre-hearing meetings of experts would help speed up FAIs. Responses are summarised in Table 11 below.

Table 11: Question 11 - Response by Respondent Type

Respondent Type

Yes

No

Not Answered
No View

Total

Insurance industry bodies or firms

4

-

-

4

Legal bodies or firms

11

-

3

14

Local authorities

4

-

3

7

Public bodies

7

1

7

15

Representative groups

6

1

2

9

Total Organisations

(32)

(2)

(15)

(49)

Individuals

3

-

5

8

TOTAL

35

2

20

57

4.27 Forty respondents made a further comment, including a small number who had not given a direct answer at Question 11. Many comments were succinct and offered support for improving the speed and efficiency of FAIs. The Sheriffs' Association was amongst those suggesting that focusing on the issues at an early stage:

"…will prevent court time being taken up with hearing expert evidence which is not in contention and will also mean that experts do not require to be recalled to comment on fresh issues."

4.28 As an organisation that themselves are required to provide expert input, HSE agreed that identifying areas of agreement and disagreement will be beneficial and went on to suggest it would improve the quality of evidence presented to the sheriff. Echoing this view, the Scottish Prison Service reported that when involved in FAIs they sometimes find there to be a lack of understanding of prison regimes and policies, and that these could be addressed in a pre-hearing meeting of experts. They also noted that they would encourage experts and the sheriff to visit establishments where the death occurred.

4.29 Other specific benefits identified included avoiding the stress caused to families of listening to experts and lawyers arguing over specific points, helping ensure that expert reports are received sufficiently early in the inquiry process, and allowing for the early identification of any expert points in dispute. However, it was also noted that the process of identifying and instructing the appropriate expert is often not straightforward, particularly in the case of medical deaths. This led Action against Medical Accidents to call for specialist training and advice to be made available to procurators fiscal.

4.30 On a procedural point, it was suggested that any meetings would need to be structured appropriately and that judicial supervision might or would be required.

4.31 A small number of respondents commented that pre-hearing meetings would not be appropriate in all cases and hence should either not become general practice or should not be mandated. The Faculty of Advocates summarised their position as follows:

"…on the evidence available to us we do not consider that adopting a rule or general practice whereby a joint meeting of experts is directed would be generally consistent with the overriding objective of doing justice in a proportionate and economic manner without unnecessary delay."

4.32 As above, other concerns included whether pre-hearing meetings would bring sufficient benefit to justify the costs incurred. In particular, the Faculty of Advocates noted that there is no data or measure which can be used to assess whether the pre-hearings used in other contexts actually save court time. They also reported that, anecdotally at least, some Scottish practitioners take the view that such joint meetings between experts generally significantly increase the costs of litigation.

4.33 Others who disagreed or had reservations about the proposition suggested that adding pre-hearing meetings could simply postpone the date of the FAI or could undermine the principles that an FAI must be an open and transparent inquiry. In particular, SCID expressed concerns about expert evidence being provided only for the use of COPFS and stressed that any evidence presented at pre-hearings should be available to the court and, if they wish, to families. Other respondents stressed that bereaved families must be made fully aware of any pre-hearing meetings, including both their purpose and any outcomes.

Question 12: Will hearing some business in sheriffs' chambers help speed up FAIs?

4.34 Relative to many other questions, views on whether hearing some business in sheriffs' chambers would help speed up FAIs were mixed. Although the majority of respondents thought it would, Insurance Industry and a number of Legal Body or Firm respondents disagreed. Responses are set out in Table 12 below.

Table 12: Question 12 - Response by Respondent Type

Respondent Type

Yes

No

Not Answered
No View

Total

Insurance industry bodies or firms

-

4

-

4

Legal bodies or firms

4

6

4

14

Local authorities

4

-

3

7

Public bodies

8

3

4

15

Representative groups

3

1

5

8

Total Organisations

(19)

(14)

(16)

(49)

Individuals

4

-

4

8

TOTAL

23

14

20

57

4.35 Thirty three respondents made a further comment. Those who supported the hearing of some business in sheriffs' chambers sometimes referred to the use of any appropriate premises as simply being a common sense approach. However, not all respondents, amongst them the Law Society of Scotland, were convinced that using sheriffs' chambers in this way would help speed up FAIs to any significant degree or in very many cases. Others sought more information before being able to offer their support.

4.36 Again, the importance of ensuring that the process is open and transparent, and especially of ensuring that relatives have appropriate access to proceedings were raised. This included by some respondents who disagreed with the use of sheriffs' chambers because they did not believe it would allow for a sufficiently open and transparent process. The Sheriffs' Association was amongst those taking this view, concluding as they did that the benefits of less formality had to be balanced with concern about parts of the process not being open to the public.

4.37 In contrast, it was suggested that there may be occasions, such as when feelings are running high, when holding a discussion in chambers may be preferable to holding it in the open court and that meetings in chambers could also reduce opportunities to adopt an adversarial approach. The Society of Solicitor Advocates took a slightly different view in suggesting that matters should not be dealt with in chambers unless with the agreement of all parties.

Question 13: Do you agree to the proposal of permitting the submission of statements to the sheriff in advance of the FAI?

4.38 Of the 40 respondents who answered this question, a significant majority agreed with permitting the submission of statements to the sheriff in advance of an FAI. Responses are summarised in Table 13 below.

Table 13: Question 13 - Response by Respondent Type

Respondent Type

Yes

No

Not Answered
No View

Total

Insurance industry bodies or firms

4

-

-

4

Legal bodies or firms

8

3

3

14

Local authorities

5

1

1

7

Public bodies

7

2

6

15

Representative groups

5

1

3

9

Total Organisations

(29)

(7)

(13)

(49)

Individuals

3

1

4

8

TOTAL

32

8

17

57

4.39 Thirty two respondents made a further comment. As at some other questions in this section, some respondents offered their support for measures which will help minimise delays to the FAI process. More specifically, Sheriff Crowe noted that significant court time has been wasted due to the lack of or incomplete disclosure by parties and the Scottish Legal Aid Board considered that allowing the submission of statements in advance should reduce the amount of court time needed in respect of certain evidence. They were also amongst those noting that an equivalent approach seems to operate satisfactorily in other parts of the UK. The Forum of Insurance Lawyers (Scotland) summed up their position as follows:

"Given that the FAI is not an adversarial forum and is essentially a fact-finding exercise then the more which can be done to encourage early sharing of evidence and information is to be commended."

4.40 Specific benefits identified included that:

  • It would allow some evidence to be submitted without the necessity of a witness attending the court.
  • Bereaved families would benefit from being able to pre-prepare their statement with the fiscal and this could help make the whole process less traumatic for them.
  • The submission of statements may identify circumstances where there is no requirement for an FAI hearing and the sheriff can provide a determination only.

4.41 Some respondents sought clarification as to the detail of the proposal and, in particular, the types of statements being referred to and who would be entitled to submit statements. The Faculty of Advocates gave their support if the proposal refers to statements of evidence. The Medical and Dental Defence Union of Scotland supported the approach for formal and non-controversial evidence, while the Association of Personal Injury Lawyers suggested that advance submission of statements may not be appropriate if the FAI is dealing with very complex or controversial issues. A Legal Firm Respondent (Peacock Johnston, Solicitors), supported of a permissive, non-mandatory approach.

4.42 As at a number of other questions, some respondents stressed the importance of processes being open, transparent and inclusive. For example, HSE suggested that statements should be circulated to all participants to enable scrutiny of all witness evidence. Action against Medical Accidents stressed that statements should be available to families at an early stage and that they should have the right to ask additional questions. The STUC was concerned that permitting written statements should not remove the opportunity to cross-examine witnesses.

4.43 Other notes of caution expressed included that care must be taken to avoid unnecessary and excessive costs being incurred, whilst one individual respondent opposed the use of written statements because he felt that written statements could have resulted in a possible misinterpretation in a case in which he had been involved.

4.44 Finally, a small number of respondents either had very strong reservations about or opposed the proposal because of they saw it as being at conflict with a system based on oral advocacy and examination under oath, with one Legal Firm Respondent (BLM LLP) noting that assessments of witness credibility and reliability are made against this backdrop. The Law Society of Scotland also had concerns that:

"…much would depend on who prepared the statements, their standard and what weight if any can be attached to a statement in comparison to oral evidence."

Question 14: Should the sheriff principal be able to transfer the case to a different sheriffdom (area) if this is thought appropriate and if it may speed up the holding of the FAI?

4.45 All but 2 of the respondents who answered this question agreed that the sheriff principal should be able to transfer a case to a different sheriffdom if this was thought appropriate and might speed up the holding of the FAI. Responses are set out in Table 14 below.

Table 14: Question 14 - Response by Respondent Type

Respondent Type

Yes

No

Not Answered
No View

Total

Insurance industry bodies or firms

4

-

-

4

Legal bodies or firms

11

1

2

14

Local authorities

6

-

1

7

Public bodies

11

-

4

15

Representative groups

6

1

2

9

Total Organisations

(38)

(2)

(9)

(49)

Individuals

4

-

4

8

TOTAL

42

2

13

57

4.46 Thirty three respondents made a further comment, although many of these were brief and again focused on general support for measures to help speed up the holding of FAIs. In giving their support, the Scottish Court Service commented that this approach:

"…will enable overall best use of the Scottish court estate, shreival expertise and availability."

4.47 In contrast, the Sheriffs' Association, along with the STUC, disagreed with the proposal. The STUC suggested that it should be for sheriffs to move to an appropriate location for the inquiry. The Sheriffs' Association took the view that:

"…the focus should be on ensuring suitable resources locally to allow FAIs to be heard in the local community rather than transferring cases to other sheriffdoms in order to speed up the process."

4.48 A number of respondents commented that consideration would need to be given to the wishes of and impact on bereaved families, as well as the impact on witnesses and any staff who may be required to attend the FAI. There was an associated suggestion that any expenses incurred by bereaved families as a result of a transfer should be covered. It was also suggested that most potential lies in making transfers only to neighbouring jurisdictions thus limiting the impact on those needing to attend.

4.49 There were some reservations, including from a small number of the respondents who had given their overall support to the proposal. Issues raised included that:

  • Transfers could lead to some dilution of the principle that justice should be local.
  • It will be important to ensure that the FAI is being transferred to a sheriff who has undergone the required training and has the necessary expertise to conduct an FAI.
  • Consideration should be given to whether the transfer could result in a loss of local knowledge from any of the parties involved, including the sheriff.
  • In contrast, it was suggested that there may be occasions when medical death FAIs could actually benefit from being transferred to a different sheriffdom, thus avoiding any risk of local prejudice.

4.50 Finally, both the Scottish Court Service and the Sheriffs Principal recommended that the mechanism for transfers should be set out in court rules.

Question 15: What impact do you think that the proposals to speed up FAIs will have on you, your organisation or community?

4.51 Thirty six respondents made a comment at Question 15. Irrespective of their area of interest or specialism, respondents most frequently pointed to a quicker outcome being of benefit to all involved but especially to bereaved families at what will be a very stressful and distressing time.

4.52 It was also recognised that others involved, including medical professionals who may have been involved in a medical death for example, can find the process very difficult and would benefit from a more speedy resolution. The Scottish Prison Service noted that the current delays have a negative impact on their staff, along with their families and that this can lead to sick absence due to stress and anxiety.

4.53 The other frequently identified and positive impact was ensuring that any lessons are learned as soon as possible, thus reducing the likelihood of similar incidents occurring and, most critically, avoiding unnecessary deaths in the future. From an organisational perspective, the Care Inspectorate suggested that learning from FAIs could help them in carrying out their statutory function.

4.54 Those commenting on the impact on the court system and processes, along with those working within it, raised a range of issues. The Scottish Court Service was of the view that preliminary hearings and possible transfer between sheriffdoms could offer significant improvements, while Sheriff Crowe was of the view that little extra work would be required for the benefits likely to be accrued. Other points raised included:

  • Holding inquiries as soon as possible could help in the recovery and preservation of relevant evidence.
  • A more efficient and quicker process should permit savings of staff time and public money within agencies such as HSE.
  • Other resources could be saved, including if fewer costs are incurred in representations. It was also suggested that reduced costs could result in savings to the Legal Aid budget.
  • In contrast, it was suggested that there could be additional cost implications associated with transferring FAIs between courts, particularly in terms of providing accommodation for witnesses.

4.55 A small number of respondents also highlighted possible resource issues within other organisations. For example, NHS National Services Scotland, whilst wholeheartedly supporting speeding up the processes, also noted that it would need:

"…to consider whether its current establishment of solicitors would be sufficient to allow their clients' interests to be properly represented if FAIs were to come up with less notice."

4.56 A Legal Firm Respondent (DAC Beachcroft (Scotland) Solicitors), suggested that the resources available to COPFS would also need to be considered; they were concerned that communities could feel an impact if the changes affected COPFS resources available for the prosecution of crime. On a more specific point, the Sheriffs' Association pointed out that increased case management would require 'front end loading' of resources, with the FAI sheriff needing to be available to cover preliminary hearings and read all relevant documentation. They also suggested that specialist clerks may be required. They concluded that:

"There may be an initial bottleneck of cases if these changes are introduced alongside the imposition of a prescriptive period…. However, the investment of resources at this point in the FAIs will result in a significant saving of court time devoted to hearing FAIs."

4.57 Finally, a small number of respondents noted that although holding FAIs more quickly would have positive impacts, this must not be at the expense of a thorough and well conducted FAI.


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