Any sudden or unexpected death is an individual tragedy, leaving a terrible mark on those left behind. That’s particularly so where there is concern about the cause of death. Families can be caught between wanting to grieve and wanting answers. Investigations by the authorities can be welcome, but nonetheless highly distressing.
Where an investigation is necessary, bereaved relatives are entitled to expect it to be thorough, independent, professional and prompt. They should be treated sensitively and with respect.
Sadly, one area where the system routinely falls down is in the length of time such investigations take. As we find ourselves in the middle of a pandemic, the risk is that pressures on the system – and as a result delays – will only increase.
Thankfully, a creative and forward-looking approach might just provide the answer.
In Scotland, the Procurator Fiscal is responsible for the investigation of sudden, suspicious, unexpected or unexplained deaths. Unlike in England, there are no coroners. Deaths in certain circumstances must by law be reported to the Fiscal. Often reports are made by hospital doctors or GPs, but sometimes the police or Health & Safety Executive can be involved. The Fiscal may then carry out further investigations to clarify the cause and circumstances of the death.
Certain cases then proceed to a Fatal Accident Inquiry (FAI), which is a public examination of the circumstances of the death. FAIs take place before a sheriff (a legally qualified judge), normally in a local court, though for longer cases special accommodation can be arranged. The purpose of the FAI is to establish the circumstances of death, and where appropriate to consider what steps might be taken to prevent other deaths in similar circumstances. This aspect can be of huge importance to families, who can be comforted by the sense that something positive comes out of the tragic events. Importantly, the focus of the FAI is on the future – its role is not to establish blame. That being said, facts often emerge at FAIs that then raise the prospect of claims in damages.
Certain cases must have an FAI, such as deaths in custody and those in the workplace. Otherwise, the Fiscal has a discretion to fix an FAI – that may happen where the Fiscal considers the death unexplained or suspicious, or where there is a wider public interest in understanding what happened.
Despite the aim of a sensitive, professional and prompt process, delays are endemic. Several years can pass between a death and the conclusion of an FAI.
The delays are, frankly, indefensible. It can be tremendously hard for bereaved relatives to move on with their lives with the unfinished business of an investigation and inquiry. Yet the delays are often systemic, rather than being down to anything specific in the investigation, such as difficulty in tracking down key evidence.
Part of the problem lies with resourcing in the Fiscal’s service (COPFS). Another is with the limited resources available in the courts. FAIs tend to come far down the list of priorities. They are often complex and lengthy hearings, which compete for priority with urgent criminal cases, family disputes and commercial actions.
On the face of it, the pandemic is only likely to make things worse. The increased number of deaths in recent months will dramatically swell the Fiscal’s workload. There will inevitably be an increase in the number of mandatory FAIs, and no doubt a similar increase in those which may justify a discretionary FAI. Several issues – in particular the failure of employers to provide PPE, or decisions to return sick patients from hospitals to nursing homes – are bound to be highlighted as reasons for inquiries.
At the same time, the courts are under considerable pressure. The near shutdown in business from mid-March has already created an enormous backlog of work in all types of cases. The need for social distancing inevitably means that the way in which the courts deal with cases will have to change. At a political level, there may well be pressure on the courts service (SCTS) to prioritise particular types of work, such as jury trials.
The real danger is that already unacceptable delays grow further, putting bereaved families under intolerable strain.
As part of its efforts to restart the justice system, SCTS has been extending its use of videoconferencing. Civil and criminal appeals have already been conducted remotely, and the system is soon to be extended to other civil business, such as commercial disputes, in the Court of Session. A similar approach has been adopted for children’s panel hearings.
The next step is to see whether such technology can be used for evidential hearings, such as criminal trials and civil proofs. The idea is that all of the participants – the judge, the court clerk, the parties to the proceedings, their lawyers, and witnesses – all connect by video; a more formal version of the Zoom or FaceTime calls that so many people have become used to during lockdown.
We’re probably some distance away from fully remote criminal trials, though pilots of jury trials have been successfully conducted in England. Various issues arise in criminal cases that would have to be overcome first.
FAIs tend to be relatively complex. They may have a number of participants, as those likely to be affected by a judgement may seek to be represented. Evidence is often complex and technical. They take time, and need quite a bit of space. Yet for the foreseeable future the biggest courtrooms are likely to be required for jury trials, and social distancing rules may put others out of use.
The solution may be to convene fully remote FAIs. There’s no need for a courtroom to be allocated. FAIs don’t have juries. The legal participants (the sheriff, the clerk, the lawyers) can all be based in their offices, or at home. Parties, including the family members, can participate from home. Witnesses can dial in from home, or where appropriate from an agreed location, such as a police office or other official building.
The technology is simple, increasingly familiar to most, and available. While some may prefer the traditional model of congregating in a court room, that simply isn’t an option at the moment. Remote FAIs could start very quickly, and while it takes time to put in place measures to progress the backlog of criminal trials, additional sheriffs may be available to participate. Instead of one FAI taking place in a city like Glasgow every so often, we could have several running at the same time – reducing, not increasing, the backlog, and giving bereaved families the prompt, professional inquiry that they so deserve.
Stuart Munro is head of Livingstone Brown’s Criminal Litigation & Inquiries practice unit. He has experience of acting in fatal accident inquiries and of using videoconferencing systems. He is a member of a Law Society working party which is looking at measures to restart the justice system.
Livingstone Brown has other departments offering services in related areas. Our employment team can help with disputes over workplace safety and employment rights. Our personal injury department can assist with damages claims. Our private client team deals with wills, guardianship and estates. To find out more about what we do, go to our website at www.livbrown.co.uk or get in touch with us on 0141 429 8166 or by completing our online contact form.