Memorandum from Rt Hon Colin Boyd QC (P
31)
Thank you for your letter of 14 November 2005 seeking
a written submission concerning the application of the sub
judice rule of the House of Commons to proceedings in coroners'
courts.
The office of the Coroner does not exist in
Scotland and the system for the investigation of deaths here is
different from that which exists in England. I am happy of course
to provide the Committee with such information as is available
concerning the application of this rule in relation to Fatal Accident
Inquiries in Scotland, but I think it would also be of assistance
if I provide some background information about the system of deaths
investigations in Scotland.
THE INVESTIGATION
OF DEATHS
IN SCOTLAND
The investigation of deaths in Scotland is one
of the functions of the Procurators Fiscal—who are part
of the Crown Office and Procurator Fiscal Service (COPFS)—and
who also investigate and prosecute crime. There are 11 COPFS Areas
in Scotland, and each is the jurisdiction of an Area Procurator
Fiscal. Within each Area there are a number of Districts, each
of which is the jurisdiction of a District Procurator Fiscal.
It is the duty of the Area Procurator Fiscal
assisted by the appropriate District Procurator Fiscal to make
initial enquiry into all deaths of which the Procurator Fiscal
is made aware, and to further investigate any sudden, suspicious,
accidental, unexpected and unexplained deaths.
In terms of the Fatal Accident and Sudden Deaths
Inquiry (Scotland) Act 1976 (the 1976 Act), Procurators Fiscal
also require to:
— investigate and hold a Fatal Accident
Inquiry (FAI) into all deaths occurring in Scotland resulting
from accident in the course of employment or occupation;
— investigate and hold a FAI into all deaths
occurring in Scotland while in legal custody; and
— investigate all deaths occurring in Scotland
in which the Lord Advocate has a discretion to instruct a FAI
and hold such a FAI where any death was sudden, suspicious or
unexplained or occurred in circumstances such as to give rise
to serious public concern and where it appears to the Lord Advocate
to be in the public interest that an inquiry should be held into
the circumstances.
The principal aims of initial enquiry into and
further investigation of deaths by Procurators Fiscal are:
— to minimise the risk of undetected homicide
or other crime;
— to determine whether a death has
resulted from the criminal actions of another and take appropriate
action in relation to such deaths;
— to eradicate dangers to health and
life in pursuance of the public interest;
— to allay public anxiety;
— to preserve evidence. Evidence obtained
in the course of the Procurator Fiscal's enquiry may be relevant
to the interests of others, for example a civil action for damages
may result;
— to determine whether a Fatal Accident
Inquiry (FAI) or any other form of Public Inquiry is to be held
and to take appropriate steps to prepare for such an Inquiry and
to preserve and present evidence thereto;
— to ensure that full and accurate
statistics are compiled.
FAIs are judicial proceedings and are presided
over by a Sheriff—although the proceedings are started and
presented by the Procurator Fiscal. They are conducted in terms
of civil rules of procedure and are not criminal proceedings.
You indicated in your letter that coroners'
inquests could be opened and then adjourned for significant periods
of time. This is not the practice in Scotland. Here, the FAI will
only begin after the investigations by the Procurator Fiscal are
completed and the decision has been taken that an FAI is necessary.
It is possible for an FAI to be adjourned or put back, but that
is usually for a specific purpose, for example, to allow a party
time to secure representation at the FAI or for the Sheriff to
write the final Determination after the conclusion of the evidence.
The adjourned periods do not tend to be lengthy.
SUB JUDICE
It does not appear that either the Westminster
or the Scottish Parliament's sub judice rules have been
invoked in relation to a Fatal Accident Inquiry.
The sub judice rule of the Scottish Parliament
is contained in Rule 7.5 of its Standing Orders. This rule is
as follows:
1. A member may not in the proceedings of the
Parliament refer to any matter in relation to which legal proceedings
are active except to the extent permitted by the Presiding Officer.
2. For the purposes of paragraph 1, legal
proceedings are active in relation to a matter if they are active
for the purposes of section 2 of the Contempt of Court Act 1981
(c 49).
3. Where any member refers to a matter in
relation to which legal proceedings are active the Presiding Officer
may order that member not to do so.
4. Nothing in this Rule shall prevent the
Parliament from considering legislation.
The operation of this rule depends very much
on whether proceedings are active within the meaning of section
2 of the Contempt of Court Act 1981. The Act applies to all judicial
proceedings before all courts in Scotland and FAI proceedings
would therefore fall within the ambit of Rule 7.5, but only when
a hearing is fixed (Schedule 1, para 14 of the l98l Act).
While it may be surprising that the sub judice
rule has not been invoked in relation to a FAI, parliamentary
interest is often more in the question whether and when an inquiry
will be held and there is likely to be less call for parliamentary
discussion of matters relevant to the inquiry while it is pending
or in progress.
I hope that this information about the investigation
of deaths in Scotland and the application of the sub judice
rule is of assistance to the Committee.
January 2006
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