Act of Sederunt (Fatal Accident Inquiry Rules) 2017

• (c) for the medical examination of any person;

• (d) for the taking and testing of samples of blood from any person; or

• (e) for any other order for obtaining evidence,

for which an order could be obtained from the sheriff.

• (3) Such an application must be made in Form S5.11A together with a proposed letter of request in Form S5.11B.

• (4) The sheriff may order the participant making the application to consign a sum with the sheriff clerk in respect of the costs payable relating to the letter of request.

• (5) Unless the court or tribunal to which a letter of request is addressed is a court or tribunal in a country or territory-

• (a) where English is an official language; or

• (b) in relation to which the sheriff clerk certifies that no translation is required,

then the applicant must, before the issue of the letter of request, lodge in the official language of the court or tribunal, a translation of that letter and any interrogatories and cross-interrogatories.

• (6) The sheriff clerk must forward to the Scottish Ministers, or to such other person as the sheriff may direct—

• (a) the letter of request, when issued;

• (b) any interrogatories and cross-interrogatories as adjusted; and

• (c) the translations (if any).

Information given on commission

8

• (1) On cause shown, the sheriff may order that the testimony of a witness is to be taken by a commissioner.

• (2) The commission is to proceed without interrogatories unless the sheriff otherwise orders.

• (3) The order of the sheriff authorising the commission is sufficient authority for citing the witness to appear before the commissioner.

• (4) The participant who cited the witness—

• (a) must give the commissioner—

• (i) a certified copy of the order of the sheriff appointing the commissioner;

• (ii) where paragraph 9 applies, the approved interrogatories and cross-interrogatories;

• (b) must instruct the clerk to the commission; and

• (c) is responsible in the first instance for the fee of the commissioner and the clerk.

• (5) The commissioner is to fix a hearing at which the commission will be carried out.

• (6) The commissioner must consult the participants before fixing the hearing.

• (7) A participant may apply for leave to be present in the room where the commission is carried out.

Testimony by commissioner: interrogatories

9

• (1) This paragraph applies where the sheriff—

• (a) authorises testimony by commissioner;

• (b) orders that interrogatories are to be prepared.

• (2) When the sheriff makes an order for interrogatories to be prepared, the sheriff is to specify the periods within which participants must comply with the steps in this paragraph.

• (3) The participant who cited the witness must lodge draft interrogatories in process.

• (4) Any other participant may lodge cross-interrogatories.

• (5) The participants may adjust their interrogatories and cross-interrogatories.

• (6) At the expiry of the adjustment period, the participants must lodge the interrogatories and cross-interrogatories as adjusted with the sheriff.

• (7) The sheriff is to resolve any dispute as to the content of the interrogatories and cross-interrogatories, and approve them.

Testimony by commissioner: conduct of commission

10

• (1) The commissioner is to administer the oath de fideli administratione to the clerk.

• (2) The commissioner is to administer the oath or affirmation to the witness.

Testimony by commissioner: lodging and custody of video record and documents

11

• (1) The commissioner is to lodge the video record of the commission and any relevant documents with the sheriff clerk.

• (2) When the video record and any relevant document are lodged, the sheriff clerk is to notify every participant—

• (a) that the video record has been lodged;

• (b) whether any relevant documents have been lodged; and

• (c) of the date on which they were lodged.

• (3) The video record and any relevant documents are to be kept by the sheriff clerk.

• (4) Where the video record has been lodged—

• (a) the name and address of the witness and the record of the information given are to be treated as being in the knowledge of the participants;

• (b) the participants need not include—

• (i) the name of the witness in any list of witnesses; or

• (ii) the record in any list of productions.

Taking of evidence in the EU

12

• (1) This paragraph applies to any request—

• (a) for the competent court of another member State to take evidence under Article 1.1(a) of the Council Regulation; or

• (b) that the court should take evidence directly in another member State under Article 1.1(b) of the Council Regulation.

• (2) An application is made by minute in Form S5.12, together with the proposed request in form A or I (as the case may be) in the Annex to the Council Regulation.

SCHEDULE 6 — VULNERABLE WITNESSES

Interpretation and application of this schedule

1

• (1) This schedule applies where a witness is to present information orally at an inquiry.

• (2) In this schedule—

• “2004 Act” means the Vulnerable Witnesses (Scotland) Act 2004¹⁵;

• “child witness notice” has the meaning given by section 12(2) of the 2004 Act;

• “review application” means an application under section 13 of the 2004 Act; and

• “vulnerable witness application” has the meaning given by section 12(6) of the 2004 Act.

Form of notices and applications

2

• (1) A child witness notice is to be made in Form S6.2A.

• (2) A vulnerable witness application is to be made in Form S6.2B.

• (3) A review application is to be made—

• (a) in Form S6.2C; or

• (b) orally, with the leave of the sheriff.

Determination of notices and applications

3

• (1) When a notice or application under this schedule is lodged, the sheriff may require any of the participants to provide further information before determining the notice or application.

• (2) The sheriff may—

• (a) determine the notice or application by making an order under section 12(1) or (6) or 13(2) of the 2004 Act without holding a hearing; or

• (b) fix a hearing at which participants are to be heard on the notice or application before determining it.

• (3) The sheriff may make an order altering the date of any hearing at which information is to be presented in order that the notice or application may be determined.

Determination of notices and applications: supplementary orders

4

Where the sheriff determines a notice or application under this schedule and makes an order under section 12(1) or (6) or 13(2) of the 2004 Act, the sheriff may make further orders to further the purpose of the inquiry.

Intimation of orders

5

• (1) Where the sheriff makes an order—

• (a) fixing a hearing under paragraph 3(2)(b);

• (b) altering the date of a hearing under paragraph 3(3); or

• (c) under section 12(1) or (6) or 13(2) of the 2004 Act,

the sheriff clerk is to intimate the order in accordance with this paragraph.

• (2) Intimation is to be given to—

• (a) every participant; and

• (b) any other person named in the order.

• (3) Intimation is to be given—

• (a) on the day that the hearing is fixed or the order is made; and

• (b) in the manner ordered by the sheriff.

Testimony by commissioner: preparatory steps

6

• (1) This paragraph applies where the sheriff authorises the special measure of taking evidence by a commissioner under section 19(1) of the 2004 Act.

• (2) The commission is to proceed without interrogatories unless the sheriff otherwise orders.

• (3) The order of the sheriff authorising the special measure is sufficient authority for citing the vulnerable witness to appear before the commissioner.

• (4) The participant who cited the vulnerable witness—

• (a) must give the commissioner—

• (i) a certified copy of the order of the sheriff appointing the commissioner;

• (ii) a copy of the first notice; and

• (iii) where paragraph 7 applies, the approved interrogatories and cross-interrogatories;

• (b) must instruct the clerk to the commission; and

• (c) is responsible in the first instance for the fee of the commissioner and the clerk.

• (5) The commissioner is to fix a hearing at which the commission will be carried out.

• (6) The commissioner must consult the participants before fixing the hearing.

• (7) An application by a participant for leave to be present in the room where the commission is carried out is to be made by application.

Testimony by commissioner: interrogatories

7

• (1) This paragraph applies where the sheriff—

• (a) authorises the special measure of taking evidence by a commissioner under section 19(1) of the 2004 Act; and

• (b) orders that interrogatories are to be prepared.

• (2) When the sheriff makes an order for interrogatories to be prepared, the sheriff is to specify the periods within which participants must comply with the steps in this paragraph.

• (3) The participant who cited the vulnerable witness must lodge draft interrogatories in process.

• (4) Any other participant may lodge cross-interrogatories.

• (5) The participants may adjust their interrogatories and cross-interrogatories.

• (6) At the expiry of the adjustment period, the participants must lodge the interrogatories and cross-interrogatories as adjusted in process.

• (7) The sheriff is to resolve any dispute as to the content of the interrogatories and cross-interrogatories, and approve them.

Testimony by commissioner: conduct of commission

8

• (1) The commissioner must administer the oath de fideli administratione to the clerk.

• (2) The commissioner must administer either the oath or affirmation to a witness.

Testimony by commissioner: lodging and custody of video record and documents

9

• (1) The commissioner is to lodge the video record of the commission and any relevant documents with the sheriff clerk.

• (2) When the video record and any relevant document are lodged, the sheriff clerk is to notify every participant—

• (a) that the video record has been lodged;

• (b) whether any relevant documents have been lodged; and

• (c) of the date on which they were lodged.

• (3) The video record and any relevant documents are to be kept by the sheriff clerk.

• (4) Where the video record has been lodged—

• (a) the name and address of the vulnerable witness and the record of the information presented are to be treated as being in the knowledge of the participants; and

• (b) the participants need not include—

• (i) the name of the witness in any list of witnesses; or

• (ii) the record in any list of productions.

Signed

CJM SUTHERLAND — Lord President — I.P.D. — 31st March 2017

Explanatory note

(This note is not part of the Act of Sederunt)

EXPLANATORY NOTE

This Act of Sederunt makes provision about the procedure to be followed in inquiries under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016.

Part 1 deals with various introductory and technical matters. It contains the interpretation provision for the Rules and a rule on computation of periods of time. It introduces the forms for use in connection with an inquiry, which are to be found in Schedule 3.

Part 2 of the Rules gives an overview of the structure of an inquiry and sets out the inquiry principles and how they are to operate. It provides for judicial continuity throughout an inquiry, where this is possible, and provides the sheriff with a broad inquiry management power.

Part 3 sets out the procedure to be followed before an inquiry starts, from the giving of the first notice by the procurator fiscal to the conclusion of the preliminary hearing.

Part 4 is concerned with the information presented at an inquiry. It gives the sheriff information management powers, provides for the citation of witnesses, and the lodging of productions and witness lists. It places participants under a duty to agree information and makes provision for the agreement of information between the participants. There are rules on witness statements and video recordings which will apply if the sheriff so orders. It also makes provision in regard to the evidence of expert witnesses.

Part 5 provides that the procedure at an inquiry is to be as ordered by the sheriff.

Part 6 is about the sheriff’s determination and responses to recommendations made by the sheriff.

Part 7 is about further inquiry proceedings.

Schedule 1 sets out how applications are to be made under the Rules.

Schedule 2 sets out how things are to be intimated under the Rules.

Schedule 3 contains the forms for use in connection with an inquiry.

Schedule 4 deals with various miscellaneous and general matters such as lodging, live links, reporting restrictions, the style of oath and affirmation, interventions and lay representation.

Schedule 5 makes provision about gathering information.

Schedule 6 makes provision which applies where a vulnerable witness gives testimony to an inquiry.

Footnotes

Form 3.1

Form 3.3A

Form 3.3B

Form 3.4

Form 4.1A

Form 4.1B

Form 4.12A

Form 4.12B

Form 6.1

Form 6.2

Form 6.3

Form 7.1

Form S1.4

Form S1.5

Form S1.7

Form S2.7

Form S4.5

Form S4.7

Form S4.21

Form S5.5A

Form S5.5B

Form S5.5C

Form S5.6A

Form S5.6B

Form S5.11A

Form S5.11B

Form S5.12

Form S6.2A

Form S6.2B

Form S6.2C

Editorial notes