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Section 5: Evidence and procedure
5.1 This section of the paper was 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 Some contributors pre-consultation suggested that it is highly desirable to hold preliminary hearings.
13. Should provision for preliminary hearings be made in respect of the whole of Scotland?
5.3 Sixty-four responses were received to this question. Sixteen responses were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; nine from other individuals and groups including academics, charities and unions; eight from the judiciary; seven from relatives; three from procurators fiscal, including the COPFS; three from investigators; two from expert witnesses; and one from SLAB. There was no consensus on this question.
5.4 Many respondents were in favour of provision for preliminary hearings being made in respect of the whole of Scotland. For example, Scottish Court Service said:
"Preliminary hearings can be an effective use of court time, in that they focus the issues and can reduce the probability of the full hearing having to be adjourned, saving court resources, cost and inconvenience to witnesses. For those cases in which such a hearing might be superfluous, provision could be made for a motion, with consent, to dispense with the preliminary hearing."
5.5 However, some respondents were against provision for preliminary hearings being made in respect of the whole of Scotland. For example, Mr John Roberts said:
"I do not believe it is required."
5.6 A number of respondents in favour of provision for preliminary hearings suggested that this be flexible in nature, while others took the view that such hearings should be mandatory.
5.7 The Association of Personal Injury Lawyers and ACPOS believed that such provision would support the sheriff in playing a more inquisitorial role. Christine P. McCrossan noted that such a hearing should also be provided for if there is a move to a tribunal system.
B Advance provision of evidential material
5.8 Some contributors pre-consultation advocated that, in advance of the hearing of the FAI, procurators fiscal should circulate witness statements, precognitions and experts' reports, as well as documentary material.
14. Should evidential material be provided to parties in advance of the FAI?
5.9 Sixty-six responses were received to this question. Seventeen responses were received interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; nine from other individuals and groups including academics, charities and unions; eight from the judiciary; eight from relatives; three from procurators fiscal, including the COPFS; three from investigators; two from expert witnesses; and one from SLAB. There was no consensus on this question.
5.10 Many respondents took the view that evidential material should be provided to parties in advance of the FAI. For example, the British Dental Association said:
"We support in principle evidential material being provided for all interested parties in advance of an FAI including "witness-agreed" statements. This process may predispose to a shorter FAI and (possibly) a more sharply focused Determination. This prior provision should not be considered mandatory since, from time to time, the procurator fiscal may consider some evidence to be of a sensitive or very complex nature and not wish to risk such material entering the public domain before the FAI."
5.11 However, some respondents were against evidential material being provided to parties in advance of the FAI. For example, Elizabeth Mauchland said:
"No, not if it means a delay in the proceedings."
5.12 Nine of the respondents specifically suggested that such evidence should be provided in advance of any preliminary hearing. There was disagreement about whether or not copies of precognitions should be provided. Two respondents suggested that there should be better use of information technology. There was also a suggestion that such provision would allow for more evidence to be agreed.
5.13 The Association of Personal Injury Lawyers wanted to "see this extended to all parties who intend to be represented at the hearing, not just the Procurator Fiscal" and called for "a 'cards on the table' approach, with a requirement to exchange evidential material in advance by all parties who intend to adduce evidence will, in our view, assist the parties in knowing the scope and nature of the material to be put before the court". The COPFS considered that "it would be beneficial to have legal rules in respect of the provision of evidence to which all parties to the Inquiry would be subject".
C Signed and sworn statements
5.14 It was suggested that restrictions regarding signed and sworn statements should be relaxed.
15. Should there be relaxation of the conditions under which signed and sworn statements can be used?
5.15 Sixty-four responses were received to this question. Seventeen responses were received interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; eight from other individuals and groups including academics, charities and unions; eight from the judiciary; eight from relatives; three from procurators fiscal, including the COPFS; three from investigators; and two from expert witnesses. There was no consensus on this question.
5.16 A number of respondents were in favour of relaxation of the conditions under which signed and sworn statements can be used. For example, the Faculty of Advocates said:
"In terms of section 4(7) of the 1976 Act the rules of evidence and procedure are those of the ordinary cause. The ordinary cause rules provide for written statements to be admitted in evidence (see OCR 1993 rule 29.3 and section 2(1)(b) of the Civil Evidence (Scotland) Act 1988. The notice to admit procedure under OCR 29.14 is also available. We think that there is certainly scope for more use to be made of these provisions. It may be that adapting them specifically for FAI procedure would be useful. We consider that there is scope to require parties in advance to indicate whether they dispute a written statement and the extent of that dispute so as to avoid unnecessary oral evidence."
5.17 However, a number of respondents were against relaxation of the conditions under which signed and sworn statements can be used. For example, Compass Chambers said:
"Within Scotland the tradition is for the provision of oral evidence. It is queried why FAIs should create more 'confrontation and undue pressure' for witnesses than other proceedings. It is precisely for such reason that oral evidence is of crucial importance - as it can be tested and judged appropriately and the demeanour and character of witnesses can be assessed. Any unreasonably confrontational behaviour on the part of the questioner can be addressed by the Sheriff."
5.18 The Sheriffs Principal were in favour of relaxation of the rules, but the Sheriffs' Association was against. Elizabeth Mauchland, Mrs Louise Marcar and Families Outside suggested the use, or reading out, of written statements. A number of respondents, including the COPFS, took the view that any relaxation should only apply to non-contentious statements. However, some others appeared to argue for written statements more generally in order to reduce delays and pressure on witnesses.
D Independent experts
5.19 Some contributors pre-consultation raised concerns that the procurators fiscal do not always instruct the most authoritative experts.
16. What can be done to ensure that the most authoritative independent experts are selected to give evidence at FAIs?
5.20 Sixty-six responses were received to this question. Eighteen responses were received interested parties, such as the Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; nine from other individuals and groups including academics, charities and unions; eight from relatives; seven from the judiciary; four from investigators; three from procurators fiscal, including the COPFS; and two from expert witnesses. There was no consensus on this question.
5.21 There were a variety of suggestions in response to this question. For example, Professor Anthony Busuttil said:
"This should be initially discussed with the pathologist who carried out the autopsy and with other members of the forensic pathology departments; later, mutual discussion with the relatives may further alert the Procurator Fiscal to the requirement for other expert involvement. The views of the medical Royal Colleges in Scotland should also be sought on specific issues and they should be able to nominate experts with the specific expertise required."
5.22 Fourteen respondents argued that cost should not be a factor when selecting experts; nine took the view that specialist fiscals and centralised units would help to ensure that most authoritative experts are selected; eight recommended a panel or database of experts; eight suggested more training for the COPFS and better communication with the appropriate professional bodies; and four suggested that the court should have more control over the appointment of experts.
E Assessors
5.23 Some contributors pre-consultation 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?
5.24 Sixty-four responses were received to the first part of this question. Sixteen responses were received from interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fourteen from lawyers and their representative bodies; eleven from other individuals and groups including academics, charities and unions; eight from relatives; seven from the judiciary; three from investigators; three from procurators fiscal, including the COPFS; and two from expert witnesses. There was no consensus on this question.
5.25 Thirty-two responses were received for the second part of this question. Eight responses were received from lawyers and their representative bodies; six from interested parties, such as Scottish Health Service bodies, local government and medical and health groups; six from other individuals and groups including academics, charities and unions; six from relatives; two from investigators; two from expert witnesses; two from procurators fiscal, including the COPFS; and one from the judiciary. There was no consensus on this question.
5.26 Many of the respondents took the view that there is a place for expert assessors in FAIs. For example, Lothian and Borders Police Force said:
"Explanations of a technical nature are not to be confused with evidence, but should exist to clarify the facts objectively, and therefore assist in the understanding of evidence."
5.27 However, a number of respondents did not consider that there is a place from expert assessors in FAIs. For example, the Medical Defence Union said:
"We agree with the conclusions of the Grant Committee that "expert evidence should be given publicly in the form of evidence and not privately to the sheriff by an assessor." It is unclear how parties can ensure that any advice given by an assessor is fair. We do not see the role for medical assessors, when expert evidence is being adduced in public and open to cross-examination."
5.28 Of those respondents in favour of expert assessors, many took the view that more use should be made of them. For example, the COPFS said:
" COPFS is in favour of greater use of expert assessors although it is acknowledged that this is ultimately a matter for the presiding Sheriff".
5.29 However, some respondents were against more use being made of them. For example, Mr Roy Sylvester-Evans said:
"[A]n expert assessor is required only for the more complex cases where the Sheriff requires frequent guidance as to what technical evidence is important and an explanation as to how the relative technical merits of the evidence may be assessed. The expert assessor should never provide 'evidence' privately. If the Procurator Fiscal presents a technical case with clarity, with the required scene setting and authoritative experts, then the need for an expert assessor is reduced."
5.30 Fourteen respondents suggested that information provided to the court by an assessor should be made public and some argued that it should be open to challenge; three recommended a panel of experts; and three suggested that there would be no need for assessors if a tribunal system was implemented.
F The admissibility of FAI evidence in other legal proceedings
5.31 It was suggested pre-consultation that it might 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?
5.32 Fifty-nine responses were received to this question. Sixteen responses were received interested parties, such as the Scottish Prison Service, Scottish Health Service bodies, local government and medical and health groups; fifteen from lawyers and their representative bodies; seven from the judiciary; seven from relatives; five from other individuals and groups including academics, charities and unions; four from investigators; three from procurators fiscal, including the COPFS; and two from expert witnesses. There was no consensus on this question.
5.33 Many of the respondents did not believe that evidence of a witness should be inadmissible in other judicial proceedings. For example, the Scottish Legal Action Group said:
" FAI witness evidence should be admissible in other judicial proceedings in the interests of justice in general."
5.34 However, a number of respondents believed that evidence of a witness should be inadmissible in other judicial proceedings. For example, ENABLE Scotland said:
"We think that it is desirable that the evidence is not admissible in other judicial proceedings other than allegations of perjury. The purpose of an FAI is to establish what happened and to prevent subsequent deaths. If the evidence of witnesses can be used in a civil case we think that they will understandably feel under pressure and worried about what they say. It would be better to create an atmosphere where people feel able to tell the truth without fear of the consequences."
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