Hansard

When I had the privilege of being convener of the Public Petitions Committee, two of the most harrowing petitions that I encountered, from Enable and from the family of a fatal accident victim, sought amendments to the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976. As others have noted, Enable's petition arose from its concern that an FAI is not mandatory when people die in hospital care and that the outcomes of FAIs are not legally binding. The other petition arose from the family's desire for fatal accident inquiries to be mandatory in the case of road deaths caused by careless driving.

At the moment, a fatal accident inquiry following a road crash is held only at the discretion of the Lord Advocate and is mandatory only if the driver has died while driving in the course of his or her employment. The driver who caused the accident on the A725 Bellshill bypass in my constituency had travelled from Preston to the accident site in two hours and five minutes. For someone complying with the speed limits, a journey over that distance should take more than three hours and 10 minutes.

The outcome of the subsequent court case led the victim's family to question why it is possible for someone to be tried and convicted for driving with such speed and carelessness that their actions led to the ending of a life yet for that death not even to be acknowledged by the judicial system. How can lessons be learned from road accidents if no inquiry follows them? The family had to come to the Public Petitions Committee to put pressure on the Crown Office into granting an FAI to answer the family's questions because the current system had so obviously failed them.

As Margaret Smith pointed out, Enable lodged its petition primarily to address concerns about the implementation of the recommendations of fatal accident inquiries. It seems an almost incredible set of circumstances that an outcome of an FAI should have no legal force and that the sheriff's determinations and recommendations can be ignored. When such recommendations are made, should there not be some means by which they are monitored to ensure that they are acted on? Should they not be dealt with in an arena in which individuals or charities such as Enable are not required to pursue the implementation of the sheriff's recommendations? Those are fundamental questions, which I hope and am confident that Lord Cullen will address.

I believe that FAIs should be inquisitorial rather than adversarial. They should get at the answers rather than provoke conflict between those asking the questions and those responding, who may be defensive because of the type of questions that are asked. I think that the current arrangements lead to defensive responses. That does not help us to get to the truth of the matter, nor does it help to prevent the situation from happening again.

We certainly need a wide review of the purpose of fatal accident inquiries and the circumstances in which they are held, but there should also be a recognition that families and victims should be at the centre of such inquiries. There will be great merit in Lord Cullen's review if he can consider those issues. It would be worth considering having a presumption in favour of holding a fatal accident inquiry for all road deaths because of the lessons that can be learned. If the Crown Office is concerned that families may not want an FAI, let the matter be judged on the basis of whether the family has asked for there not to be an FAI. The current presumption against holding an FAI forces families to come to the Public Petitions Committee to get the answers that they rightly seek and to which they are entitled. Would it not be preferable to assume that an FAI should be held unless the family would rather that the issues surrounding the loss of their loved one were not brought into the public domain?

When the committee took up the issues, the previous Lord Advocate stated that families' views are sought on whether there should be a fatal accident inquiry. However, I wonder how proactively that is done and, indeed, why such action is taken at all, given that families' views are not the decisive factor in determining whether an inquiry should take place.

The fundamental question that arose when we considered the petitions was who decides what is in the public interest. Should the Crown Office make that determination, or should those who are affected by the death of a loved one have more input and emphasis than those who seek to judge from their, dare I say it, detached position on the events that led to someone's death? If Lord Cullen's review provides an answer only to that fundamental question, it will have been a worthwhile exercise. From my experience of the demand for and the process of FAIs, and from the information that the committee received, the process has left far too many members of the public dissatisfied with a system that was created for the public and which is supposed to operate in the public interest.

We must put the public at the heart of the system. I am sure that no one in the Crown Office wants to be seen not to do that, but the experience of the committee when we considered the issue was that what happens seems to be the converse of what the system is supposed to achieve. Lord Cullen's review must address that. I am confident that, if he addresses that fundamental question, he will get to the root of the dissatisfaction that people feel with the system.