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Section 6: Determinations
6.1 This section is concerned with the determinations of sheriffs.
6.2 At the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff has to make a determination setting out the following circumstances of the death so far as they have been established to his or her satisfaction-
(a) where and when the death and any accident resulting in the death took place;
(b) the cause or causes of such death and any accident resulting in the death;
(c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided;
(d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and
(e) any other facts which are relevant to the circumstances of the death 34
6.3 As noted earlier in this paper, the sheriff can make recommendations with a view to preventing death in similar circumstances. However, it is not part of the function of the sheriff to attribute or apportion blame for the death.
A The content of determinations
6.4 Some contributors expressed dissatisfaction with determinations on the ground that there was sometimes a lack of consistency between them. It was said, for example, that there can be a variation in the way in which sheriffs (a) addressed the question whether the death was foreseeable and "might" have been avoided 35 and (b) dealt with the submissions of the procurator fiscal.
6.5 As against that, it may be said that it is preferable to leave it to sheriffs to decide how such matters should be covered in the particular case.
19. Should there be guidance as to matters to be covered by determinations?
B Use of determinations
6.6 Sheriff clerks are asked to forward every determination to the Scottish Government. A database of recommendations is maintained by the Scottish Government with the name and the contact details of person or body to whom they were addressed. However, it is not up to date. It has been suggested that a statutory duty be created to ensure that an up to date public database exists. It has also been suggested that determinations should be more readily available for sheriffs in later FAIs to consider for their relevance to them.
20. Would it be helpful to create an up to date public database of determinations?
C The following up of recommendations
6.7 Some contributors have called for the mandatory implementation of all recommendations made by sheriffs. This could be done by imposing orders on parties to the FAI to implement them. However, given the variety of such recommendations and the fact that they may need to be considered in a wider context than was available or appropriate in the particular FAI in which they were made, it may be doubted whether this proposal would be workable.
6.8 Some other countries monitor such recommendations, publish annual reports of recommendations and responses to recommendations. 36It has been suggested that this should be done in Scotland by a central body, and that such reports should be published and presented to the Scottish Parliament for consideration.
21. Should responses to recommendations be monitored?
D Reviewing a determination
6.9 It is doubtful whether under the existing law a further FAI into the same death could be held. The current position is that, if fresh evidence comes to light that might affect a determination, the procurator fiscal may investigate and inform the relatives as to the outcome of such investigation, but can go no further. Some contributors have suggested that the Lord Advocate should be given the power to apply for a further FAI, or the re-opening of a previous one, where this is appropriate.
22. Should the Lord Advocate be able to apply for a further FAI or the re-opening of an FAI? If so, should this only be in limited circumstances?
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