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Section 5: Evidence and procedure
5.1 This section is concerned with the ways in which an FAI can examine the circumstances of the death with effectiveness, fairness and the minimum of delay.
A Preliminary hearings
5.2 Provision has already been made in two large sheriffdoms 29 for such preliminary hearings. The use of preliminary hearings is supportive of sheriffs taking an inquisitorial role.
5.3 There appears to be a case for the use of preliminary hearings (in advance of the full hearings) for, inter alia, identifying:
- the persons or bodies to be represented at the full hearing
- the issues to be explored at the full hearing
- the witnesses whom the procurator fiscal and the parties intend to lead
- any matters of concern
- the identification of the persons or bodies by whom individual issues are to be explored
- a realistic allowance of time for the full hearing, and where appropriate, a timetable for it
5.4 It has been suggested that it is highly desirable that the same judge should take both the preliminary hearing and the hearing of the FAI.
5.5 On the other hand, it could be said that a general provision for preliminary hearings is unnecessary because in some cases it will be superfluous, and that sheriffs can make ad hoc arrangements for such a hearing if it appears to be appropriate.
13. Should provision for preliminary hearings be made in respect of the whole of Scotland?
B Advance provision of evidential material
5.6 The guidance issued by the COPFS for procurators fiscal states that lists of witnesses, with perhaps a brief summary of their evidence, and copy documentary productions should be sent to all interested parties and their solicitors, as well as to the sheriff clerk for the use of the sheriff, at as early a stage as possible. It also states that a meeting with all interested parties in advance of the FAI is recommended.
5.7 However, a number of contributors have indicated that this does not always happen. They advocate that, in advance of the hearing of the FAI, procurators fiscal should circulate witness statements, precognitions and experts' reports, as well as documentary material. This may lead, it is said, to the greater use of joint minutes. It would be of benefit to the parties in knowing the scope and nature of the evidential material to be put before the court. It would assist in enabling witnesses, who may have to respond to an assertion that they could have prevented the death, to be fairly treated. The circulation of such material would have to be on the strict understanding that it was solely for use in connection with the hearing of the FAI.
5.8 It is also for consideration whether it would be desirable that such material is circulated to the interested parties (given that they have been previously identified) before the preliminary hearing so that there can be a fully informed discussion at that stage. For example this would assist in discussion of the need of a person or body to be represented and, if so, the issues in which such a person or body has a proper interest.
5.9 On the other hand, it could be argued that the provision of such evidence in advance is unnecessary and unduly onerous for the COPFS. It might also be said that it could have the disadvantage of delaying the start of the hearing of the FAI.
14. Should evidential material be provided to parties in advance of the FAI?
C Signed and sworn statements
5.10 At present evidence at FAIs is normally given orally. However, evidence may be taken in the form of signed and sworn statements, but only if all persons who appear or are represented at the FAI agree to its admission or the sheriff considers that its admission will not result in unfairness in the conduct of the FAI to any person who appears or is represented at the FAI. 30 The COPFS guidance states that this should be restricted to non-contentious evidence.
5.11 It has been suggested that these restrictions should be relaxed. It has been claimed that the giving of oral evidence can give rise to unnecessary confrontation and pressure on witnesses. A greater use of written statements could eliminate the need for some witnesses to undergo the strain of giving evidence where this unnecessary, and reduce the length of hearings. 31
5.12 As against that, it could be said that the hearing of oral evidence and the cross examination of witnesses remains the best way to ascertain the facts, so written evidence should continue to be restricted as at present.
15. Should there be relaxation of the conditions under which signed and sworn statements can be used?
D Independent experts
5.13 The procurator fiscal may instruct independent experts. For example, where a medical expert is required, the general rule is to seek an expert outwith the relevant health board area, preferably outwith Scotland. However, some contributors have raised concerns that this does not always happen and there have been suggestions that procurators fiscal do not always instruct the most authoritative experts. They rely on pathologists and other colleagues to recommend medical experts, but can also use the list of experts held by the Law Society of Scotland. Currently, the COPFS guidance states that procurators fiscal must have regard to the COPFS Finance Manual regarding the payment of expert witnesses, so cost appears to be a factor in determining which experts will be selected.
16. What can be done to ensure that the most authoritative independent experts are selected to give evidence at FAIs?
E Assessors
5.14 In FAIs where the evidence to be led is of a technical or specialist nature an assessor can be appointed to assist the sheriff. 32 The role of the assessor is to explain and interpret to the judge matters of technical difficulty, for example in regard to manufacturing processes, or complex medical or scientific matters.
5.15 This provision was contrary to the conclusions of the Grant Committee. They evidently regarded the assessor as the source of expert evidence. They said that "[o]n the whole we think that expert evidence should be given publicly in the form of evidence, and not privately to the sheriff by an assessor". 33 This view might explain why relatively little use has been made of assessors.
5.16 However, it may be questioned whether it is a proper part of the role of an assessor to give expert evidence in private to a judge whom he is assisting. Furthermore some contributors have advocated the increased use of assessors to enable sheriffs to gain a full understanding of technical or complex evidence.
17. Is there a place for expert assessors? If so, should more use be made of them?
evidence in other legal proceedingsFAIF The admissibility of
5.17 At present there is no restriction on the use in other legal proceedings, civil or criminal, of the evidence given by witnesses at an FAI. Accordingly use can be made of answers which are considered to be admissions. Some contributors have suggested that this should be extended to the use of the sheriff's determination, which is currently inadmissible in other proceedings.
5.18 However, there is another way of looking at evidence at an FAI. It might be said that some witnesses may be less than frank in their evidence for fear that their answers might put them or others in a bad light. This may lead to time being taken up at the FAI with the challenging of such evidence. It has been suggested that it may be in the public interest in the ascertainment of the truth that the evidence of a witness at an FAI should be inadmissible in legal proceedings, save, of course, for proceedings for perjury by that witness.
18. Should evidence of a witness be inadmissible in other judicial proceedings?
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