Legalize / United Kingdom / Scotland / Scottish-Statutory-Instrument

Act of Sederunt (Fatal Accident Inquiry Rules) 2017

Type Scottish-Statutory-Instrument

Publication 2017-03-31

State In force

Jurisdiction Scotland

Department King's Printer for Scotland

Source legislation.gov.uk

articles Not indexed

Reform history JSON API PDF

Made: 31st March 2017

Laid before the Scottish Parliament: 4th April 2017

Coming into force: 15th June 2017

This Act of Sederunt makes provision for a purpose mentioned in section 2(2) of the European Communities Act 1972[^f00004] and it appears to the Court of Session that it is expedient for the references in this Act of Sederunt to Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters[^f00005] and to Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000[^f00006], to be construed as references to those instruments as amended from time to time.

PART 1 — CITATION, COMMENCEMENT AND INTERPRETATION, ETC.

Citation and commencement, etc.

1.1

(1) This Act of Sederunt may be cited as the Act of Sederunt (Fatal Accident Inquiry Rules) 2017.

(2) It comes into force on 15th June 2017.

(3) A certified copy is to be inserted in the Books of Sederunt.

Interpretation

1.2

(1) In these Rules , unless the context otherwise requires—

“apply” means apply in accordance with schedule 1, and related expressions are to be construed accordingly;

“the Council Regulation” means Council Regulation (EC) No. 1206/2001 of 28th May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters, as amended from time to time;

“the deceased” means the person whose death the inquiry is concerned with;

“first notice” means notice that an inquiry is to be held under section 15(1);

“first order” means the order of the sheriff made under rule 3.2(1);

“the inquiry principles” means the principles in rule 2.2;

“intimate” means intimate in accordance with schedule 2, and related expressions are to be construed accordingly;

“participants” includes the procurator fiscal;

“the purpose of the inquiry” means the purpose set out in section 1(3) and (4);

“SCTS” means the Scottish Courts and Tribunals Service; and

“witness statement” has the meaning given by rule 4.13(2).

(2) In these Rules, references to a section are to that section of the Inquires into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

Periods of time

1.3

If any period of time specified in these Rules expires on a Saturday, Sunday or public or court holiday, it is extended to expire on the next day that the sheriff clerk’s office is open for civil business.

Forms

1.4

(1) A reference in these Rules to a form is a reference to that form in schedule 3.

(2) Those forms may be varied where the circumstances require it.

Miscellaneous and general matters

1.5

Schedule 4 makes provision about—

(a) lodging;

(b) live links;

(d) the style of oath and affirmation;

(e) interventions; and

(f) lay representation and support.

PART 2 — OVERVIEW

The structure of an inquiry

2.1

An inquiry proceeds as follows—

(a) the procurator fiscal begins the procedure by sending the sheriff first notice of the inquiry (see rule 3.1);

(b) the sheriff makes a first order and other participants become involved in the inquiry (see rules 3.2 to 3.5);

(c) the sheriff normally holds one or more preliminary hearings, to make sure that the inquiry is ready to start (see rules 3.6 to 3.8);

(d) the sheriff may make orders about the presentation of information and the participants will notify each other and the sheriff of the information they intend to present at the inquiry (see Part 4);

(e) the inquiry is held, with the sheriff presiding (see Part 5); and

(f) the sheriff produces a determination (see Part 6).

The inquiry principles

2.2

(1) An inquiry is inquisitorial not adversarial.

(2) An inquiry is to be progressed expeditiously and efficiently, with as few delays as possible.

(3) Taking into account the nature and complexity of the inquiry—

(a) the procedure at an inquiry is to be as flexible as appropriate; and

(b) the manner in which information is presented is to be as efficient as possible.

(4) All participants are to be able to participate effectively in furthering the purpose of the inquiry.

Taking into account the inquiry principles

2.3

(1) The sheriff must take into account the inquiry principles when—

(a) interpreting these Rules; and

(b) making any orders.

(2) Participants and representatives must respect the inquiry principles by—

(a) taking into account the inquiry principles when seeking an order; and

(b) assisting the sheriff with the duty in paragraph (1).

Representation and support

2.4

(1) A participant other than the procurator fiscal may—

(a) appear on the participant’s own behalf;

(b) be represented by a solicitor, an advocate, or both;

(d) with the permission of the sheriff, be supported by a lay supporter.

(2) Where a solicitor or lay representative withdraws from acting on behalf of a participant, the solicitor or lay representative must lodge a notice of withdrawal.

Judicial continuity

2.5

Where possible, the same sheriff is to—

(a) consider the first notice and make the first order;

(b) preside at all preliminary hearings; and

The inquiry management powers

2.6

(1) The sheriff may make any order necessary to further the purpose of an inquiry, including—

(a) an order made to assist the sheriff to identify which issues are in dispute, such as an order—

(i) fixing a hearing and specifying a purpose for that hearing;

(ii) requiring participants to disclose the existence and nature of any information they hold relating to the inquiry;

(iii) requiring participants to lodge particular documents or other items, or to lead particular witnesses;

(iv) restricting the documents or other items which a participant may present, or the witnesses a participant may lead;

(v) granting authority to recover documents or other items relating to the inquiry;

(b) an order made to allow the sheriff to manage time efficiently, such as an order—

(i) imposing a time limit on any step to be taken by a participant;

(ii) varying a deadline or time limit set out in these Rules;

(i) requiring that participant to take a step as a consequence of not complying with a rule or order;

(ii) relieving the participant from the consequences of not complying with a rule or order;

(iii) imposing conditions on any relief from non-compliance.

(2) The sheriff may make orders—

(a) of the sheriff’s own accord; or

(b) on the application of a participant.

PART 3 — PRE-INQUIRY PROCEDURE

First notice

3.1

(1) First notice is to be given in Form 3.1.

(2) First notice must set out—

(a) the information required by section 15(2)(a) (that is, a brief account of the circumstances of the death, so far as known to the procurator fiscal);

(b) the identity of the deceased;

(d) whether the procurator fiscal considers that a preliminary hearing is unnecessary and, if so, the reasons for that view;

(e) whether the inquiry is mandatory or discretionary and—

(i) if mandatory, the category of mandatory inquiry;

(ii) if discretionary, whether the Lord Advocate considers that the death fell within section 4(1)(a)(i) or (ii);

(f) in the case of a discretionary inquiry under section 6 (inquiries into deaths occurring abroad: general), which condition in section 6(3)(a) is met;

(g) in the case of a discretionary inquiry under section 7 (inquiries into deaths occurring abroad: service personnel) that the conditions in section 7(1)(c) are met; and

(h) the identity of any person who the procurator fiscal considers might have an interest in the inquiry.

First order

3.2

(1) The sheriff must make an order (a “first order”) under section 15(3) (initiating the inquiry) within 14 days of receiving first notice.

(2) The sheriff may order the procurator fiscal to appear in chambers to discuss the first order.

(3) If the sheriff orders that a preliminary hearing is to be held, it must be ordered to take place within 56 days after the date of the first order.

(4) If the sheriff orders that a preliminary hearing is not to be held, the inquiry must be ordered to take place within 56 days after the date of the first order.

Notice of the inquiry

3.3

(1) Notice under section 17(1) in relation to an inquiry is to be given in Form 3.3A.

(2) Notice must be given at least 42 days before—

(a) the preliminary hearing; or

(b) if the sheriff has not ordered a preliminary hearing, the date fixed for the start of the inquiry.

(3) In addition to the persons mentioned in section 17(2)(a), notice must be given to—

(a) a person named in the first order as a person the sheriff is satisfied has an interest in the inquiry;

(b) in a category of death listed in column 1 of the following table, the person specified in column 2.

Column 1	Column 2
Circumstances of death	Specified person
a death within section 2(3)(b) of the Act (death as a result of an accident which occurred while the person was acting in the course of the person’s employment or occupation)	The Health and Safety Executive
a death within section 2(4)(b) (death of a child required to be kept or detained in secure accommodation)	The local authority or other provider of secure accommodation in whose care the child died, the Scottish Ministers and Social Care and Social Work Improvement Scotland
death within section 2(5)(a) (death of a person required to be imprisoned or detained in a penal institution)	The Scottish Ministers or the Chief Constable of the relevant police force, respectively
death within section 2(5)(b) (death in police custody)	The Chief Constable of the relevant police force
a death within section 2(5)(c) (death in custody on court premises)	The Scottish Courts and Tribunals Service
a death within section 2(5)(d) (death of a person detained in service custody premises)	The Secretary of State
a death within section 5 (certain deaths and accidents to be treated as occurring in Scotland)	The Secretary of State
a death within section 6 (inquiries into deaths occurring abroad: general)	The Secretary of State
a death within section 7 (inquiries into deaths occurring abroad: service personnel)	The Secretary of State
a death within article 6 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (Consequential Provisions and Modifications) Order 2016[^f00007] (death in Scotland of service personnel)	The Secretary of State.

(4) A person given notice under this rule who intends to participate must indicate that intention by lodging a notification in Form 3.3B at least 14 days before the start of the inquiry.

Public notice of the inquiry

3.4

(1) Public notice under section 17(3) is to be given in Form 3.4.

(2) Notice is to be given by intimating it to SCTS at least 42 days before—

(a) the preliminary hearing; or

(b) if the sheriff has not ordered a preliminary hearing, the date fixed for the start of the inquiry.

(3) SCTS must publish the notice on its website when it is received.

(4) In addition to publication under paragraph (3), the sheriff may order public notice to be given by other methods.

Other participation

3.5

(1) A person who is not given notice under section 17(1) but who wishes to participate in an inquiry may apply to the sheriff to participate.

(2) That application must—

(a) set out why that person’s participation would further the purpose of the inquiry; and

(b) be made at least 14 days before the start of the inquiry.

(3) Schedule 1 does not apply to applications made under this rule.

Purpose of preliminary hearings

3.6

(1) The purpose of a preliminary hearing is to—

(a) ensure that the purpose of the inquiry is achieved when the inquiry takes place;

(b) consider the scope of the inquiry and identify the issues which are in dispute; and

(2) The sheriff may order as many preliminary hearings to take place as is necessary to achieve that purpose.

Before the first preliminary hearing

3.7

Unless the sheriff orders otherwise, at least 7 days before the first preliminary hearing each participant must lodge a brief note setting out, where known—

(a) the matters considered likely to be in dispute at the inquiry;

(b) a list of any productions which it is considered might be used at the inquiry and a note of their relevance to the purpose of the inquiry;

(c) a list of persons whom it is considered might be led as witnesses at the inquiry and a note of their relevance to the purpose of the inquiry; and

(d) the matters which the sheriff might be invited to address in the sheriff’s determination.

Procedure

3.8

(1) The procedure at a preliminary hearing is to be as ordered by the sheriff.

(2) At the preliminary hearing (or by the last preliminary hearing) the sheriff must—

(a) consider whether there are any further persons who the sheriff is satisfied have an interest in the inquiry under section 11(1)(e);

(b) establish who is to participate in the inquiry;

(d) consider the likely length, timetable and date for the start of the inquiry;

(e) establish any matters which are likely to be in dispute at the inquiry;

(f) establish the state of preparedness of the participants;

(g) consider how information should be presented to the inquiry including—

(i) how information will be gathered (see rule 4.4);

(ii) the timetable for lodging productions and witness lists (see rules 4.6 and 4.7);

(iii) the arrangements for any vulnerable witnesses (see rule 4.9);

(iv) how participants are progressing with discharging their duty to agree information (see rule 4.11);

(v) whether notices to admit information are required (see rule 4.12);

(vi) whether any witness statements will be required (see rule 4.13);

(vii) whether any video recordings will be required (see rule 4.14);

(viii) how any expert witnesses should present information (see rules 4.15 to 4.19); and

(ix) what other technology (for example, live links) will be used;

(h) consider any other preliminary matter raised by a participant; and

(i) identify any legal aid applications which have been, or require to be, made or renewed by participants.

(3) At the conclusion of a preliminary hearing the sheriff must—

(a) fix a date for another preliminary hearing; or

(b) fix a date for the start of the inquiry.

(4) Where the sheriff fixes a date for another preliminary hearing, the sheriff must specify—

(a) the reason for fixing another preliminary hearing; and

(b) the matters which will be considered at that preliminary hearing.

(5) Where the sheriff fixes a date for the start of the inquiry, SCTS must publish a notice of that date on its website.

PART 4 — INFORMATION

The law of evidence

4.1

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