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

7 Legal aid for bereaved relatives

7.1 The consultation paper notes that families involved in FAIs may require their own legal representative and that if the family cannot afford to pay for such legal representation, they may be eligible to receive legal aid. The Scottish Legal Aid Board can make legal aid available where a person entitled to be represented at an FAI can show that they have concerns which the procurator fiscal is not going to raise at the FAI, and is available on the same basis as for civil proceedings. An application for legal aid is approved by the Scottish Legal Aid Board based on probable cause, reasonableness and financial eligibility. In terms of the 'reasonableness' test, applications "should focus on why the applicant needs separate legal representation at the FAI" (Civil Legal Assistance Handbook, Chapter 13.88.).

7.2 In his Review Lord Cullen indicated that the representation of relatives at an FAI should be regarded as a special case. For this reason Lord Cullen recommended that the test of 'reasonableness' for the granting of legal aid for FAIs should be removed for relatives of the deceased, and that Scottish Ministers should consider increasing the limit for legal aid in FAIs and the extent to which legal aid is available within that limit. However, the Scottish Government does not agree with this recommendation and believes that existing statutory tests should continue to apply.

Question 23: Do you agree that the existing arrangements for legal aid for bereaved relatives at FAIs should remain?

Question 23a: If you answered 'no' to question 23, in what ways would you change the arrangements for legal aid for bereaved relatives?

7.3 The majority of respondents who answered this question agreed that the existing arrangements for legal aid for bereaved relatives at FAIs should remain. However, a number of respondents disagreed, including the majority of the Legal Bodies or Firms who answered Question 23. Responses are set out in Table 20 below.

Table 20: Question 23 - Response by Respondent Type

7.4 Twenty five respondents went on to make a comment at either or both of Questions 23 and 23a, with some respondents referring between their comments at the two questions. The analysis presented here summarises the views expressed at both questions.

7.5 A number of respondents made a broad statement of support for the continued provision of legal aid to bereaved families, and that it is important to ensure access to judicial proceedings for those who have a legitimate need to be represented but also that it is important to remain focused on FAIs being fact-finding rather than fault-finding exercises. In particular, the Sheriffs' Association commented on the need to guard against FAIs to be treated as 'dry runs' for any civil proceedings and that:

"COPFS have a public duty to present evidence concerning the circumstances of the accident or death. It is only where there is a conflict of interest between the procurator fiscal and the next of kin that there should be a necessity for separate representation."

7.6 The Scottish Legal Aid Board's view was that the existing guidance and approach remain appropriate. Commenting specifically on the assessment of reasonableness they noted that the decision as to whether make public funding available for representation - whether for a relative of the deceased or a potential defender - focuses on why someone requires separate representation at the FAI.

7.7 However, other respondents took the view that, in line with Lord Cullen's recommendation, there is or may be a case for different or less stringent rules being applied and/or for legal aid limits being increased. Specific issues raised and suggestions made included:

• If bereaved families are denied legal aid and go on to represent themselves they may struggle with the process and FAIs may be prolonged.
• If there is any potential conflict of interest, such as an involvement of any agency of the State in the circumstances of the death, the reasonableness test should be regarded as satisfied. On this issue, the Scottish Legal Aid Board reported that if a legal aid applicant is a relative of a person who died in custody they consider it reasonable for relatives to have their own independent representation to determine the facts.
• The arrangements should be modelled on the Inquiries Act 2005, by which the chair of a public inquiry receives funding applications from those wishing to be represented. For an FAI, if there is a concern that counsel to the inquiry would be unable to represent a participant, the power to award public funding would lie with the sheriff, who would only award funding where he or she believed necessary, and with those decisions binding on the Scottish Legal Aid Board.

Question 24: What impact do you think this proposal will have on you, your organisation or community?

7.8 Eighteen respondents commented on the impact the legal aid proposals might have on themselves as individuals, their organisation or their community, although comments tended to be brief. A number of respondents were of the view that the proposals would have minimal or no impact on themselves or the area in which they worked. Those taking this view ranged across respondent types.

7.9 A small number of respondents suggested that, if the current arrangements are retained, the impact will be to disadvantage bereaved families, particularly if other parties are well represented.

7.10 The Scottish Legal Aid Board noted that any change to allow civil legal aid to be made available without an assessment of the reasonableness test or financial eligibility issues would impact on the civil legal aid budget, with the scale of that impact depending on the number and scale of the FAIs held over the course of each financial year.

Equality Impact Assessment

7.11 The final section of the consultation response form asked respondents for any further comments on any potential impacts, either positive or negative, they felt any or all of the proposals may have on a particular group or groups of people.

7.12 Seventeen respondents made a comment, with a number simply stating that they did not anticipate the proposals would have any positive or negative impact on the protected characteristics groups^[5].

7.13 The Scottish Prison Service raised a number of issues, including an inconsistent approach in FAI hearings for women and men who have died in prison. They noted that most FAI hearings for men take on average 2-3 days but for women over 5 days, and that an upcoming FAI for a female in custody has been scheduled over a 2 week period.

7.14 Other issues raised by respondents were that:

• Care will need to be taken to ensure that vulnerable families and those with poor English language skills have their voices heard.
• In particular, the needs of bereaved families of Scots who die abroad and of those killed by road users in the course of their employment should be given greater consideration.
• In selecting accommodation for FAIs, consideration should be given to the ethnic and religious beliefs of the community and to ensuring that the premises are fully accessible.