HOLDING OF PUBLIC INQUIRY (Hansard, 30 March 1976)

§ The Lord Advocate
I beg to move Amendment No. 2, in page 3, line 36, after 'and', insert ', in a case where the inquiry is being held in respect of such a death as is referred to in section 1(1)(a)(i) of this Act, to '.

§ Mr. Deputy Speaker
With this we are to take Government Amendment No. 5 and Amendment No. 3, in page 3, line 36, after 'and ', insert ' where the death which is the subject of the inquiry has arisen out of the employment of the deceased '.

§ The Lord Advocate
The effect of this amendment is that intimation of the holding of the inquiry to the employer of a deceased will be required only in cases where the death appears to have resulted from an accident in the course of employment. As hon. Members who were on the Committee will recollect, the words which are of importance in this connection are the words which appear in Amendment No. 3.
Under the present wording of the Bill, intimation would require to be given to the employer in every case, even if the death had no connection whatever with the employment. In the case of deaths of persons in custody, under Clause 1(1)(a)(ii), or other sudden deaths under Clause 1(1)(b) the employer will normally 1247 have no connection with the death. Clearly it is inappropriate to require notice to be given in such cases, and I am grateful to Opposition Members for drawing my attention to this point.
These amendments turn upon the key wording to which I have drawn the attention of the Committee of Clause 1(1)(a). It is really subsection (1)(a)(i) that matters although, as I pointed out in Committee, the key wording of the clause is really the hinge—to change metaphors—on which the whole of the rest of the Bill turns. Hon. Gentlemen, particularly the hon. Member for Pent-lands (Mr. Rifkind), may appreciate the desirabilitiy of not multiplying words unnecessarily.
That is why the drafting of the clause has reached the stage it has in the Bill as now drafted.
The difficulty is that I am sympathetic to Amendment No. 3. It has exactly the same object as Government Amendment No. 2, but from the drafting point of view it is unsatisfactory in two respects. It ties the provision to death having arisen out of employment. That may not be known until after the inquiry has taken place in certain cases and, therefore, the words which we have selected in subsection (1) appear preferable from a practical point of view.
The second effect is the one to which I have already referred—that is to say, one does not get a clear reference back to subsection (1), which is the hinge on which the whole of the Bill turns. Although the Government accept the principle, from a drafting point of view for these two reasons the Government amendment is preferable and I hope that the hon. Member for Pentlands will not insist upon his amendment.
Government Amendment No. 5 is really on exactly the same lines, and I am grateful to the hon. Member for Pentlands and others. In attending to the first point one had to look at the rest of the Bill, and we therefore picked up the same point in Clause 4. The Government amendment there has exactly the same purpose, to relate the provision of Clause 4 to the hinge provision in Clause 1(1) of the Bill. The effect is exactly the same: it refers back to a death of the type referred to in Clause 1(1)(a)(i).
1248 For these reasons I hope that the House will support the Government amendments and that in the circumstances the hon. Gentleman will not move his amendment.

§ Mr. Rifkind
I thank the Lord Advocate for his amendment, the intent of which is precisely the same as that which I moved in Committee. I shall not seek to move our Amendment No. 3. I am happy that the House should accept both Government amendments, whose drafting is more appropriate and clear than ours.

§ Mr. Rifkind
I beg to move Amendment No. 4 in page 4, line 5, at end insert— ' (4) The Procurator Fiscal shall supply a list of names and addresses of witnesses whom the Crown propose to call in an inquiry under this Act to any person who so requests and who may be entitled by virtue of this Act to appear at the inquiy '. We believe this amendment to be an improvement on the Bill. Once an inquiry has been determined, on a mandatory or discretionary basis, and the procurator-fiscal has determined the witnesses that he intends to call, he should be under a statutory requirement to supply their names and addresses to any other party entitled to appear at the inquiry who so requests. The amendment that we moved in Committee did not stipulate that this should be at the request of one of the parties. It simply suggested that the Crown should be under a statutory obligation to provide such a list. The Lord Advocate took exception to the amendment on the ground that it did not require any requests from the parties concerned. The amendment now limits the statutory obligation in that way.
I am sad that the Government have not put down such an amendment themselves. The Lord Advocate said in Committee: It is the practice at the moment that if a request is made to the procurator fiscal to indicate whom he proposes to lead an inquiry, information is given to that effect. There is, therefore, no difference between us on what is desirable. We simply propose to give statutory effect to normal practice. It cannot be suggested that our proposal would be unnecessarily rigid or 1249 unworkable. The Lord Advocate also said: I cannot argue that it could not work."—[Official Report, First Scottish Standing Committee, 18th March 1976; c. 77.] Therefore, if our proposal is workable and there is no practical objection, I hope that the Lord Advocate will have some information which was not available to the Committee as to why it should not be given statutory effect.
The Lord Advocate said that the informal arrangements worked well. I do not question that, but unless we can envisage a situation in which the procurator-fiscal would be entitled to withhold that information it should not depend on his whim. He might take a view contrary to current practice for no good reason, and as the law stands no one could oblige him to change his mind. It is undesirable that a practice that is common throughout Scotland could be disregarded for no good reason, simply on the arbitrary view of the individual concerned. If there is no good reason for not giving statutory effect to this practice, I hope that the amendment will be agreed.

§ The Lord Advocate
The difference between this amendment and a similar one in Committee is that the provision of the names and addresses will now depend on the request of one of the parties. I have every sympathy with the intention of the amendment, but I must ask the House to reject it.
I accept that the Grant Committee said at paragraph 321 of its Report: It is convenient at this point to consider two minor procedural points which we were asked to examine. The first was a suggestion that the Crown should be obliged to furnish to interested parties the names and addreses of witnesses whom the Crown proposes to call in fatal accident inquiries. That is the substance of what is included in the amendment. To that extent it is an improvement on the previous amendment. The Grant Committee went on to say: We have some sympathy with the proposal, but we do not think that the procurator fiscal could be expected to identify every potentially interested party, and we recommend that he should supply information only on request. That is echoed in the amendment, but I draw attention to the passage I quoted and I think that the difficulty of putting an amendment such as this into a statute is clear. There are a number of difficulties 1250 in what on the face of it looks like an attractive course.
As I indicated in the course of the debate on this amendment in Committee, the purpose of a fatal accident inquiry is to ascertain where and when a death took place, the cause of the death and any reasonable precautions which might have prevented the death, together with any defects in any system of working which contributed to the death. Accordingly, a fatal accidents inquiry is itself a fact-finding exercise and, unlike in a criminal proceeding, no person is on trial.
In solemn criminal proceedings there is a statutory obligation upon the prosecutor to give to the person accused a list of the names and addresses of the witnesses it is proposed to call in the course of the trial. In a summary criminal proceeding, the matter is not regulated by statute but rests on an informal basis, and when they are requested to do so procurators-fiscal furnish accused persons or their solicitors with a list of the names and addresses of the witnesses it is proposed to call. This is an informal and flexible arrangement and it means that the person affected has fair notice. If, for example, the prosecutor obtains a major witness and there is not time to give advance notice, it may be given at the time of the trial and that would be fair notice. It is based on that kind of concept.
In providing such a list the procurator-fiscal advises the accused person or his solicitor that there is no guarantee that all the witnesses on the list will be called, nor is the prosecutor to be prevented from calling any additional witness not named on the list.
I have repeated the arrangements regarding the supply of names and addresses of witnesses in criminal proceedings in order to stress that even in summary criminal proceedings, where of course the penalty can include loss of liberty, this matter is regulated by an informal procedure which, to the best of my knowledge, works well and has not given rise to criticism. Accordingly in a fatal accident inquiry, where no person is on trial and no loss of liberty is involved, it seems to me both undesirable and unnecessary to place upon a procurator-fiscal, as this amendment would do, a statutory obligation to supply a list of the names and addresses of persons 1251 whom the Crown proposes to call at an inquiry to any person who so requests and who would be entitled by virtue of the legislation to appear at the inquiry.
We consider that in a sphere of this kind it is more appropriate to have an informal arrangement operating which allows for the maximum degree of flexibility while still affording interested parties or their solicitors an opportunity of ascertaining in advance on an informal basis the names and addresses of the witnesses whom the Crown proposes to call.
The hon. Gentleman asked me to give a new slant to this. I find it rather difficult to do so because I sought to put all the points in Committee. If, however, a new slant is required, perhaps I can give it in this way. Solemn proceedings are relatively rigid and relatively cut and dried because of the solemnities involved. Summary proceedings are that bit less formal, and as regards procedure fatal accident inquiries are obviously the least formal of the three. Secondly, in regard to the ambit of the inquiry, it is less easy to see at the time the procurator-fiscal is making inquiries exactly what line an inquiry is likely to take. It is therefore difficult for him to decide who are his key witnesses and whether there may be others on the fringe who might be useful.
That limitation of flexibility must be taken into account when looking at the amendment. As I indicated to the hon. Gentleman in Committee his amendment then was defective, and in the amendment now before us he has not cured the defect to which I am drawing attention. The amendment is defective because the obligation would be a statutory obligation which would fall upon the procurator-fiscal, who would have to comply with it whatever stage the investigation had reached or at whatever time the request was made by the person entitled to appear at the inquiry.
10.30 p.m.
A person could therefore request a list of names as soon as an inquiry was announced. The obligation upon the procurator-fiscal would be unreasonable because he could not possibly comply with it at that stage. There is no guidance in the amendment about the point in time when it would be reasonable and 1252 fair to place this obligation on the procurator-fiscal. Indeed, one cannot imagine a time at which a statutory obligation could reasonably be brought to bear upon the procurator-fiscal.
One result might be that a list of witnesses was requested at a stage when the procurator-fiscal had not had the opportunity to precognosce the witnesses but might nevertheless have to provide a list. When seen, the witnesses might prove unsatisfactory, and if they were not called the procurator-fiscal would be open to criticism at the inquiry that he had led people up the garden path. This difficulty underlines the necessity of flexibility which can be achieved only by a degree of informality. To some extent, the hon. Member recognised this point in Committee, but he has failed to fulfil the promise of that understanding by adjusting his amendment appropriately.
Because of the argument on the merits and the serious defect in the amendment, I hope that the House will not accept it.