Mr. James McColm

Opposition Day – in the House of Commons at 9:33 pm on 16th June 1992.

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Motion made, and Question proposed, That this House do now adjourn.—[Mr. Kirkhope.]

Photo of Miss Betty Boothroyd Miss Betty Boothroyd Speaker of the House of Commons

Order. Would those hon. Members who are leaving the Chamber please do so very quickly and quietly so that I may call the hon. Member who has the Adjournment debate?

Photo of Brian H Donohoe Brian H Donohoe , Cunninghame South 10:17 pm, 16th June 1992

Thank you for calling me this evening, Madam Speaker[Interruption.]

Photo of Miss Betty Boothroyd Miss Betty Boothroyd Speaker of the House of Commons

Order. Will those hon. Members who are holding meetings please do so outside the Chamber, and let the doors be closed so that the hon. Member who has the Floor can be heard?

Photo of Brian H Donohoe Brian H Donohoe , Cunninghame South

I am grateful to you for allowing me this Adjournment debate, Madam Speaker. The case before you is that of Mr. James McColm. I am also indebted for the assistance of the hon. Member for Moray (Mrs. Ewing) and of my hon. Friend the Member for Livingston (Mr. Cook).

At 12.30 pm on Sunday, 9 July, 1989, Mr. James McColm who was 69 years old and a war veteran, having been injured in the famous battle for the bridge at Nijmegen in 1944, was walking home from the local masonic club, having enjoyed a pint and a game of dominoes. Being a victim of emphysema, he was not able to walk fast. He was knocked down on a well-lit section of Townhead street in Stevenston by a local taxi. He died in hospital on 11 July 1989 of injuries sustained in that accident. His sons, Edward and John McColm, could not understand how the taxi had failed to avoid their father. The more questions they asked, the less sense was forthcoming.

According to the police the only witnesses were the driver and a 14-year-old pedestrian, both of whom said that Mr. McColm had crossed the street in the opposite direction to his normal way home. The first question that remains unsolved is why he would cross and then re-cross the same road.

The sons eventually obtained a copy of the post mortem report from Crosshouse hospital where their father died, after it had cleared with the procurator fiscal that they could receive that copy. After consulting someone in the medical profession, it was determined that the injuries sustained were consistent with their father crossing the road as though he was heading home.

Unfortunately, the police had completed their investigation and the procurator fiscal in Kilmarnock had decided that "no proceedings were necessary". Therefore, the driver was not prosecuted and no order was made for a fatal accident inquiry. During that period, meetings were held with the procurator fiscal in Kilmarnock. The first was on 2 August 1989, when John McColm, one of the brothers, and his wife Margaret, had an informal discussion with him. They were shown the witnesses' statements and were informed that the procurator fiscal was preparing to meet the witnesses. My second question is, did he ever meet them?

Sometime after the first meeting, Edward McColm, the other brother, telephoned the procurator fiscal and asked to be supplied with the post mortem report and the witnesses' statements. Both requests were denied to him. The second meeting with the procurator fiscal, held on 19 January 1990, was attended by John and Edward McColm, each with a solicitor.

The sons had prepared a diagram of the accident and a list of questions, which remain unanswered to this day. Where was their father lying? What was the position of the car? Where was the witness standing? Were there any other witnesses? The brothers were of the opinion that there were at least two other witnesses from the Kilmarnock area and, because of that, they advertised in the local paper, the Kilmarnock Standard. To this day no witnesses apart from the original two have come forward.

The procurator fiscal said that he could not provide any of the information requested and that he was obliged to give only the names and addresses of the witnesses to the accident. He stated that to give the reasons for his decision or to supply any of the information that he had would be against the public interest. How can that be?

How do the brothers know that the procurator fiscal and the police have carried out their duties? How do they know that the Lord Advocate has carried out his duties? Edward McColm asked the procurator fiscal those questions to which he replied that "there was a chain of accountability". At that point Edward McColm answered that it was "a closed chain of accountability". It seems wrong that, in the case of James McColm, "no proceedings" is all that need be reported as the decision. No justification is needed by the Crown Office. The brothers have been kept in the dark, the only requirement being that they be given the witnesses' names and addresses.

A number of questions remain unanswered. Why was there no fatal accident inquiry, what damage would be done by releasing the information that the brothers request, and how could giving such information be against the public interest?

Mr. Edward McColm wrote to the Lord Advocate citing annual road death figures for Ayrshire—for Cunninghame and Kilmarnock—for 1989 and 1990 and asked for a breakdown to discover in how many cases fatal accident inquiries had been held and in how many cases the file had been marked "no proceedings." He was informed: The statistics required by you are not readily available.

Eventually, in a letter from the Lord Advocate dated 4 February 1992 to David Lambie, the former Member of Parliament for Cunninghame, South, an answer was given, but the number of road accident fatalities reported to the procurator fiscal over the two-year period was shown as 46 cases involving 52 deaths. The chief constable's report, which I gave to the Minister yesterday, for those two years showed the number of fatalities as 51. Was that one death too many for the Crown Office, or was one death missing from the police inquiries? I am speaking of the police reports issued by Andrew Sloan, the former Chief Constable of Strathclyde.

In that letter of 4 February 1992, the Lord Advocate said that Mr. Lambie should know that the members of the McColm family have attended at the PF office on three occasions. In fact, they met on only two occasions, on 2 August 1989 and on 19 January 1990. Those discrepancies are a worrying factor in a case that the brothers are now convinced had led to some kind of cover-up. How is it possible, from the legal point of view, to demonstrate in such a way as to break down the wall of silence that the brothers assume has occurred in this case?

My understanding of the law is that, if the brothers were so inclined, they could exhume Mr. McColm's body, take it to England and bury it there. They would then be granted a fatal accident inquiry in England and it would be able to examine all the circumstances of the accident in Scotland. Something is basically wrong if that is the true position.

The relatives of Mr. McColm would then be able, having received satisfaction after three years —it will be the anniversary shortly of the beginning of the case—to re-exhume Mr. McColm's body and return it to Scotland for reburial. They would then have had the satisfaction of establishing the facts of Mr. McColm's death. They would feel that their father could rest in peace, and they, at last, could get on with their lives.

The procedural irony between the fatal accident laws of England and Scotland should be addressed as a matter of urgency. This is one of many similar cases where a fatal accident inquiry has been denied by the procurator fiscal.

The Scottish Campaign Against Irresponsible Drivers has been campaigning for several years for the bereaved families of road accident victims to have the automatic right to an inquiry. The view of Isobel Brydie of SCALD was echoed by her colleague, Wendy Moss. Isobel Brydie said: Part of the process of getting over a death in a family is finding out the facts. Until they know the facts, the grieving process cannot he completed. There is meant to he a procedure just now for helping next of kin but it simply isn't working.

It is essential that the McColm family find out all the circumstances of their father's death. The only way in which that can happen is if a fatal accident inquiry is held into the death of their father, James McColm.

At this time of commitment to open government, with charters of rights for almost everything, it would be satisfying to all those affected if the Government demonstrated tonight a change of attitude and instructed all the organisations most at fault to end the veil of secrecy. Let us hope that the wall of silence can be broken down. I await the Minister's reply with interest.

Photo of Robin Cook Robin Cook , Livingston 10:32 pm, 16th June 1992

The whole House will be grateful to my hon. Friend the Member for Cunninghame, South (Mr. Donohoe), who has done a service by providing for his constituents an opportunity for this matter to be ventilated in the House, which has not happened through the legal process.

Isobel Brydie, to whom my hon. Friend referred, lives in my constituency and in the past six years I have had a long association with the Scottish Campaign Against Irresponsible Drivers. During that time, I have seen two features that appear constantly in such cases and which appear again in this case. The first is the need on the part of the relatives of the deceased for a process which establishes the facts of death. A trial does not necessarily establish those facts and, where there is no trial, there is not even that opportunity.

My hon. Friend is absolutely right to draw attention to the sharp distinction between a fatal accident inquiry in Scotland and a coroner's inquest in England. We have no automatic right to a fatal accident inquiry in Scotland. Indeed, they are very rare and generally involve only accidents caused by the actions of lorry drivers. We do not have the automatic right to a coroner's inquest that would exist if the accident occurred in England.

The second factor that occurs in all such cases and is again demonstrated in this case is the hunger of the relatives to know what is happening in the legal process. Tragically, the legal process gives them no recognition. and the fact that they have no information about whether or when a trial will take place or what might happen adds to their distress.

Tonight we are considering only one case, but every year more than 500 people are killed on the Scottish roads. Were it to happen on one day in one place, we would regard it as a tragedy of the most appalling magnitude. Yet sadly, because individual incidents occur throughout the year, we do not recognise the appalling magnitude of the tragedy. The very least that we can offer those who survive such incidents is that their distress should not be compounded by the insensitivity of the legal process. I hope that the Minister will be able to ease the distress in this case by answering the questions put to him so forcefully by my hon. Friend.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West 10:33 pm, 16th June 1992

First, I warmly congratulate the hon. Member for Cunninghame, North (Mr. Donohoe) on securing this adjournment debate in the ballot and on his good advocacy on behalf of his constituents.

Before I respond to the points raised by the hon. Gentleman and the hon. Member for Livingston (Mr. Cook), may I express my sympathy to the family of the late Mr. McColm for its tragic loss.

The matters under discussion are important, and I am grateful to the hon. Member for Cunninghame, North for having provided me with notice of the points that he wished to raise. I am glad to have this opportunity to address some of the concerns that he has raised on behalf of his constituents, many of which were raised previously by his predecessor, Mr. David Lambie.

It is clear to me that the McColm family believe that the cause of Mr. McColm's death has never been adequately explained: and that the truth might have been arrived at if a public inquiry had been held. The concerns which have been voiced by the hon. Member stem directly from the decision not to hold a fatal accident inquiry, and from the secret way in which, as the McColm family perceive it, the decision was taken. It may assist the House, therefore, if I give a brief outline of the history of the case as I understand it.

Mr. James McColm was involved in a road traffic accident on 9 July 1989, when he was in collision with a taxi. He died two days later without having regained consciousness. The circumstances of the accident were investigated by the police. Statements were taken from witnesses, and a report was submitted to the procurator fiscal at Kilmarnock. Although the police were able to trace only one eye witness to the accident—a 14-year-old boy—that witness was able to give a detailed account of what had happened, as he had been standing directly opposite Mr. McColm before the collision with a taxi. That witness had seen the taxi approach and had seen Mr. McColm before he stepped on to the road in front of the approaching taxi.

The police examined the taxi to determine whether there were any mechanical defects which might have contributed to the accident. They found none. They also measured the skid marks left by the taxi in order to estimate the speed at which the taxi had been travelling. Estimates of the speed were also provided by the eye witness and two other eye witnesses who were approximately 300 m from the locus but had been passed earlier by the taxi. Those other persons did not witness the actual collision. There was conflicting evidence about the speed of the taxi but, based on that of the eye witness and the evidence from the skid marks, there was nothing to indicate that excessive speed was a contributory factor in this case.

All that information was passed to the procurator fiscal, who has responsibility for investigating sudden suspicious and accidental deaths. In Scotland, there is no such thing as an inquest, and there are no coroners. As I understand the position in England and Wales, inquests are held to establish the cause of death. In Scotland, the procurator fiscal inquires into the cause of death, and fatal accident inquiries are then held to address issues of public concern.

Once the death was reported to the procurator fiscal, his first task was to arrange for a post mortem examination. The hon. Gentleman asked why the post mortem report was not made available. My understanding is that the first brother to visit the procurator fiscal was allowed to read the post mortem report. As a general rule, procurators fiscal do not provide copies of reports, but consent to the pathologist making the report available. In this case, the pathologist found injuries to both the left and right sides of the body. I am told that that is not inconsistent with the description of the accident from the eye witness who spoke of Mr. McColm stepping into the path of the taxi, by which time he was almost facing it.

The words of the eye witness that constitute the critical evidence in a statement to the police were as follows: The car would only have been about 10 metres away from the man (ie the deceased) when he turned round quickly and stepped onto the road. It took him two steps to reach the road and the second one took him into the path of the car. By this time he had turned so that he was almost facing it. He was struck on the legs and thrown up in the air before landing on the bonnet of the car and then falling on to the road.

As is normal practice, the procurator fiscal then conducted his own inquiry into the circumstances of Mr. McColm's death. He interviewed the witnesses and also met one of Mr. McColm's sons, who was told in detail what each witness had said. Mr. McColm's son was given an opportunity to read the post mortem report, and he was provided with a list of the names and addresses of the witnesses to enable him to interview them personally if he wished to do so. The procurator fiscal explained the standard of evidence required to justify a criminal prosecution, and he outlined the circumstances in which Crown counsel might feel justified in instructing that a fatal accident inquiry be held.

Once the procurator fiscal had completed his inquiries, he submitted a report to Crown counsel, who had to decide on behalf of the Lord Advocate whether the procurator fiscal should be instructed to hold an inquiry.

In terms of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, there are only two categories of death for which a fatal accident inquiry must be held: a death in custody and a death which has resulted from an accident where the deceased was in the course of his employment. The circumstances of Mr. McColm's death did not fall into either category. In addition to the mandatory inquiries, the Lord Advocate may direct that an inquiry be held where a death was sudden, suspicious or unexplained or has occurred in circumstances such as to give rise to serious public concern.

Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West

I have much to say, and I should like to answer the questions posed.

The Lord Advocate will so direct when he is satisfied that it is expedient in the public interest that an inquiry should be held into the circumstances.

The discretion of the Lord Advocate in this matter has long been recognised. The Lord Advocate was given this discretion in 1906, and it was continued by the 1976 Act, which consolidated the legislation and modernised the procedures. In the exercise of his discretion, the Lord Advocate acts in a quasi-judicial capacity when deciding whether or not an inquiry should be held.

At the conclusion of a fatal accident inquiry, the sheriff has to make a determination setting out where and when a death took place, and the cause of the death. These are the formal findings. Of greater significance—and the reason why an inquiry will be held—are the sheriff's findings in relation to any reasonable precautions whereby the death or any accident resulting in the death might have been avoided. In appropriate cases, the sheriff may also determine that there were defects in a system of working which contributed to the death or any accident resulting in the death.

In the case of road traffic fatalities, a fatal accident inquiry would normally be held only if it was thought that there was a need to inquire into such matters as the layout of the road, the appropriateness of any speed limits at the locus, or the adequacy of street lighting. In other words, do the circumstances of the accident give rise to concerns about road safety? Where it is considered that the driver of a vehicle was at fault to the extent that his driving was thought to have been careless or reckless, the appropriate step is for criminal proceedings to be instituted. Where criminal proceedings are not appropriate and no issues of road safety are raised, a fatal accident inquiry will not usually be held, especially where the investigations by the police and fiscal have already clearly established the circumstances leading up to the accident.

In Mr. McColm's case, Crown counsel acting on behalf of the Lord Advocate had to decide whether it was necessary in the public interest that an inquiry should be held. Crown counsel concluded that the circumstances were not unexplained and that they did not give rise to any serious public concern. Crown counsel therefore instructed that an inquiry should not be held. It is that decision which has angered the hon. Gentleman's constituents. I should also confirm, for the avoidance of doubt, that Crown counsel was satisfied that there was no case for taking criminal proceedings against the driver of the taxi.

When the decision was intimated to the family, one of Mr. McColm's sons complained that the fiscal had not been willing to provide him with a copy of either the police report or the fiscal's report to Crown counsel. A meeting was arranged, and both Mr. McColm's sons attended at the fiscal's office in January 1990. As the hon. Gentleman said, this was the second meeting; and I can confirm that there were only two meetings and not three, as was mistakenly mentioned in the letter to which the hon. Member referred.

As I have explained, the family had already been given details of the evidence available to the fiscal. In addition, I understand that the solicitors representing the family had themselves obtained statements from the witnesses. Accordingly, Mr. McColm's family were in possession of the same information about the circumstances of the death as was available to the fiscal and Crown counsel. No material information was withheld from the family. They remained dissatisfied, however, because they had not been shown the police report or the fiscal's report. The police report was simply a summary of the evidence, the details of which had already been provided to the family.

The fiscal's report was accompanied by the statements of the witnesses, but was itself an assessment of that evidence and a recommendation by the fiscal to Crown counsel as to whether a fatal accident inquiry should be held. The fiscal is clearly entitled to make an assessment of the evidence and offer his opinion to Crown counsel on a confidential basis. It was for Crown counsel to decide whether a fatal accident inquiry should be held, and he was not bound to accept the fiscal's recommendation.

By this stage, the circumstances of this case had been drawn to the attention of the then Lord Advocate, Lord Fraser of Carmyllie. Lord Fraser himself reviewed the available evidence and concluded that the circumstances did not meet the criteria set out in the 1976 Act. Lord Fraser was therefore satisfied that a fatal accident inquiry should not be held.

The circumstances of Mr. McColm's death had therefore been carefully and thoroughly investigated by both the police and the fiscal; and the results of those inquiries had been given careful consideration by both Crown counsel and the most senior Law Officer in Scotland. Nothing material had been withheld from the family. They were not provided, however, with copies of the reports in which those investigating the circumstances had offered assessments of the evidence and opinions as to the course of action which should be taken.

As Lord Fraser explained in correspondence with the hon. Gentleman's predecessor, there is a long and unbroken line of judicial authority to the effect that reports by the police to the fiscal and communications between the fiscal and Crown Office are very highly confidential. The Scottish courts will order their production to a third party only where it is necessary for the ends of justice in view of some great and overwhelming necessity. Lord Fraser concluded that, in the circumstances of this case, there was no such necessity, especially as the actual reports sought by the family did not contain any factual information which had not been made available to the family.

Fatal accident inquiries are instructed where the circumstances of the death give rise to serious public concern—as, for example, in cases where there is a continuing danger. The Lord Advocate was satisfied that in this case the circumstances, while tragic, did not give rise to any serious public concern. There are occasions when inquiries are instructed where the death is unexplained and it is thought that a public inquiry might shed some light on the circumstances, but in this case there was no reason to believe that an inquiry could conceivably add anything to the information available to the family as a result of the investigation by the police and fiscal and the investigation by their own solicitors.

Inquiries are the exception rather than the rule. I shall give some figures. Over a two-year period, in 1989 and 1990, 46 cases in Kilmarnock involving 52 deaths were reported to the fiscal, who inquired into the circumstances. In 19 of those cases, criminal proceedings were taken, and in three a fatal accident inquiry was held.

It is unusual to have both criminal proceedings and a fatal accident inquiry. If there is to be an inquiry, it is usually held after the criminal proceedings, if any, have concluded. The need for an inquiry would always be reassessed at that time, as it is likely that the circumstances of the death could have been sufficiently established in the course of the criminal proceedings.

In most cases where no proceedings were taken, either there was an accident which did not involve any other vehicle, or the deceased was at fault. In such cases it would be unusual to hold an inquiry, because either the circumstances will be clearly established by the fiscal's investigation or there is no serious public concern.

I am grateful to the hon. Gentleman for pointing out the discrepancy between the fiscal's figures and those of the chief constable. I made detailed inquiries and discovered that the difference is accounted for by one case where the deceased suffered a fatal heart attack before losing control of the car. I understand that, as this was a death from natural causes, the police have not recorded it as a road traffic fatality. I shall pursue that matter, and will write to the hon. Gentleman in due course. I assure the House that this tragic matter was thoroughly investigated. I confirmed that material facts were not withheld from his family—

The motion having been made after Ten o'clock and the debate having continued for half an hour, MADAM SPEAKER adjourned the House without Question put, pursuant to the Standing Order.

Adjourned at thirteen minutes to Eleven o'clock.