Could it have been prevented? What really happened in the run-up to the accident? Could a similar accident happen again?
Questions like these can plague the families of those who die in uncertain circumstances. Where other bereaved families can attend the funeral of a loved one and begin the long process of grieving and acceptance, those who lose a relative in an accident are sometimes left for years with unanswered questions swirling around their heads.
Fatal Accident Inquiries (FAIs) are supposed to provide answers to relatives in this unenviable situation, and draw out any lessons that can be learned from the tragedy but FAIs are notorious for being delayed for many months or even years. The families of three men who died when the tug boat the Flying Phantom capsized in thick fog on the River Clyde in December 2007 are still waiting for a decision on whether an FAI will be held. Lawyers have long been campaigning to have the process speeded up and the Scottish Government has reviewed the way the FAI system works, but unfortunately it has now emerged that its planned reforms will do very little to tackle these huge hold-ups.
The core problem is not delay in getting an FAI started once the decision has been made to have one (that is being addressed) but the fact that FAIs must be postponed until after any criminal proceedings have ended. To make matters worse, some families who wait that long are then informed there will be no FAI after all, without necessarily having the decision adequately explained. Clearly, the principle that one investigation should not prejudice another is an important one but it is not necessarily the case that an FAI could not be ordered until after criminal proceedings have finished.
The English system of coroners courts perhaps provides some pointers as to how the FAI system might be improved. There, an inquest into a death is opened and then, if a criminal investigation begins, it can be adjourned. An FAI could operate in a similar way. It could potentially run parallel with criminal proceedings provided it focused on matters not related to that case.
This suggestion by lawyers at Thompsons Scotland, who represent many bereaved families, is worthy of serious consideration since it means that families would at least learn some more information about their loved one's death; it would also have the added advantage of ensuring that the memories of witnesses were fresh when evidence was taken.
The opacity and complexity of the investigations process following a death in uncertain circumstances is very confusing for families, who are often left in limbo, expecting answers but having none. Families should be at the heart of the process, not left helpless on the sidelines wondering when, or if, they will ever have the answers they need to complete the picture of what happened to their loved one. The system is not working as it should and these new legislative proposals simply do not go far enough to make it work better.