Review into legal aid funding for families of fatal accident victims

The availability of legal aid funding for families involved in Fatal Accident Inquiries (FAIs) will be reviewed, the Scottish Government has indicated.

Speaking at the Scottish Parliament on Tuesday, Community Safety Minister Ash Denham said that a full consultation would be carried out before this year's summer recess, with a view to introducing a new legal aid bill.

Under the current legal aid system, families are able to apply for legal aid funding to cover the cost of representation during FAIs.

Requests are considered by the Procurator Fiscal on the basis of statutory tests, which include factors such as probable cause, reasonableness and financial eligibility.

However, regulations set out in the Legal Aid (Scotland) Act of 1986 are still in use and they do not allow ministers to make interventions on decisions taken by the Legal Aid board.

Ms Denham said: "I would agree that a review is required. It is the role of the Scottish Legal Aid board to make determinations if legal aid funding is to be awarded, Scottish ministers can't overturn that decision.

"There isn't flexibility for the board to decide to disapply or disregard the statutory requirements that operate to assess an applicant's finances.

"Any changes to this system can only be made through changes to primary legislation and that is why we plan to consult on a new legal aid bill.

"This will be a full consultation and it will be happening this year before summer recess.

"I will carefully consider this issue as part of that wider planning for the new Scottish legal aid bill and I would be happy to meet with any members who want to discuss this further and who want to contribute to that bill.''

Having raised the issue at Holyrood on Tuesday, Scottish Labour MSP Daniel Johnson also suggested that the length of time taken for FAIs to be completed indicated something "seriously wrong with the system''.

"We've heard in recent weeks issues from families who have had loved ones who've died abroad who still cannot get post-mortems,'' he said.

"Other families, such as those of Craig McLelland, are frustrated because their murderer committed that murder one side of the prison fence and then the other.

"And I think, thanks to the work of the Lib Dems, the total cumulative backlog of FAIs is now shocking.

"So does the minister accept there is something seriously wrong with the way that FAIs are working in Scotland, despite legislative reform only taking place in 2016?''

Ms Denham said that the Scottish Government had further funding available to the Crown Office so that thorough investigations can be completed at a faster pace.

"The decision to hold any FAI and the timing for initiating it is a matter entirely for the Lord Advocate and that is operating entirely independently of government,'' said Ms Denham.

"Sometimes depending upon the circumstances of a death investigation, it can be very complicated, it can be technical and it can also involve a number of different agencies working together.

"The Crown Office is committed to the prompt investigation of deaths but it does accept that in some cases, the time taken in order to complete a thorough investigation has been too long.

"The Scottish Government has made additional funding available to the Crown Office and the Crown Office has used some of this to allow the Scottish Fatalities Investigation Unit to try to reduce the time required to complete these death investigations''.

Scottish Liberal Democrat MSP Liam McArthur said: "The Minister appears to have taken the first steps towards this today but a review needs to looks at so much more than grieving families being handed legal costs.

"The FAI system should be people-centred and ever mindful of the families involved. Our recent research revealed some families enduring waits of up to eight years to get information about how their relatives had died. In those circumstances they are being denied closure.

"A full independent review should examine the protracted timescales, structural barriers and lack of public confidence in the process.

"It should consider whether Scotland requires a system of checks and balances outwith the parameters of the COPFS (Crown Office and Procurator Fiscal Service) akin to the coroner systems that exist in England, Wales and Northern Ireland.

"I look forward to the Minister clarifying the parameters and timescale of its scope."