Hansard

I welcome this extremely interesting debate. The Solicitor General and the Cabinet Secretary for Justice are aware that, along with Margaret Smith and, as it turns out, many other members, I considered venturing into this area of law with a proposal for a member's bill. As many members have said, the system is ripe for review after all these years, because time has moved on.

Fatal accident inquiries are a little-known area of the law to members of the public until they become involved or try to become involved in one. I will refer to two cases with which the Solicitor General is familiar and which raise issues about the need for review. The first case is the death of Stuart Foster. The case raised my awareness of and, consequently, my concerns about the process, the representation for third parties—who are usually the deceased's family—and the delays in decisions on whether an FAI should be held. I can talk about the case in public because there has now been a fatal accident inquiry and because Stuart Foster's parents went public when they were not granted one.

Stuart Foster died on 11 June 2004, aged 28. He had been employed in a bar and, that day, after his work, he continued to drink and drank himself to death. The death certificate said that he died choking on his own vomit and from alcohol poisoning. Because, technically, he was no longer working, a fatal accident inquiry was not mandatory. I took up the case in 2005. I have the pester power of a three-year-old at the sweeties near the cash till, but it was only after a lot of pestering—I personally talked to the Lord Advocate to ask why the case had not moved on—that we got a fatal accident inquiry. That took three years although, from what I have heard today, that was pretty quick compared to the five years that it has taken for some other FAIs to be held.

Issues arose about serving alcohol to someone who was clearly intoxicated. There was a failure to deal with Stuart Foster when he slumped to the floor. Without malice, his colleagues took pictures of him lying there. They must have thought that they were in a wild west movie, because they threw water on him, but the man was unconscious with drink. He was put in the back of a car, from which his girlfriend could not lift him, and he died at some time in the back of that car.

As has been said, the FAI process is a hard journey for parents. However, despite the anguish of sitting through the proceedings, they want to know what happened. I thank the procurator fiscal, who went out on a limb to assist Stuart Foster's parents. She involved them in the processes and told them what was happening, such as that the hearing had been adjourned because they had not been able to get hold of a prime witness. She was with them at the hearing, at which Mr Foster represented himself. I also thank the sheriff, who dealt with them tactfully and sensitively.

Important issues arise, not least of which is the time delay and the deterioration of evidence, particularly eye-witness evidence, which I do not think anyone has mentioned yet. Given that I cannot remember what I did a month ago—that is nothing to do with increasing senility—I would not be able to remember what happened three years previously in a case in which I had not played a major part but in which I knew something that was crucial evidence, especially if I had been distracted by doing something else.

I turn to the protection of evidence. Closed-circuit television coverage was significant in the case that I mentioned. The police had decided not to prosecute, so we wondered what was going to happen to the CCTV evidence that showed what had happened. It took some time to locate it.

That case told me that many aspects of FAI procedures needed to be reformed. I am glad to hear that access to legal aid is being considered. We understand that financial eligibility tests for access to legal aid pertain in various procedures. We accept the probable cause issue. Reasonableness is the difficult issue. Is it reasonable that, if people pass the tests, the state should give them legal aid?

The second case, which raises different issues of public safety, is the tragic death of Pascal Norris in 2006 from anthrax. Wild speculation followed his death in the Borders. It was put down anecdotally to badgers carrying anthrax; the poisoned stream that ran near his isolated cottage; and his drum making. It brought a whole cloud of fear, panic and suspicion to all the people in the neighbourhood.

I pursued an FAI in that case in the early days to expose the flaws in the processes, because things went wrong. The isolation of premises applied to his house at Black lodge, which was very remote. I went there when it was isolated; it looked like something out of the space age with people in decontamination suits, fencing, police, barricades and goodness knows what. However, his house was not the source of the infection. Pascal Norris had contracted the disease at Smailholm village hall but, to the best of my knowledge, that was not identified as the source for six weeks.

Issues arose about the power of the state to isolate premises. I understand that, under the then public health law, only one premises could be isolated compulsorily. Smailholm village hall was isolated voluntarily. The new Public Health etc (Scotland) Bill, which the Health and Sport Committee has been considering, will deal with that matter.

Mr Norris had gone to drumming lessons and had been playing on drums made from wild goat skins from Africa, which were carrying anthrax spores. Mr Norris had leukaemia, so he was vulnerable. To the best of our knowledge, that is how he died.

The case raises huge issues, such as the importing of products from Africa that may carry anthrax spores. There are also issues to do with processes. Who was responsible? Did the buck stop with Scottish Borders Council, NHS Borders or the police? The Public Health etc (Scotland) Bill might remedy some of what happened in the case. My colleague Helen Eadie will know that from some of the evidence that the committee has taken.

I welcome the review of FAIs. I welcome the consideration of whether to have an expert assessor to try to accelerate the FAI process or the decision whether to have an FAI in the first place. I do not take Michael McMahon's position that every case in which a road accident fatality is caused by careless driving should involve an FAI. Sometimes, what happened speaks for itself. I dealt with a case where a young man was killed in a road traffic accident and it was obvious that he had run out in front of a car that was not going over the speed limit.

I welcome legal representation for the bereaved and the expansion of legal aid.

I wish to pick up on what Pauline McNeill said about the possibility of appealing against refusals to grant FAIs. It might be difficult to do that, given what the Scotland Act 1998 says, but the idea is worthy of investigation. However, I do not think that that would come under our remit.