Scottish Government

CHAPTER 8 DETERMINATIONS

This chapter is concerned with:

• the form of determinations (paragraphs 8.1 - 8.7);
• the interpretation of section 6(c), (d) and (e) of the Act (paragraphs 8.8 - 8.13);
• the use of the determination and fatal accident inquiry evidence in other proceedings (paragraphs 8.14 - 8.15);
• the publication of determinations (paragraphs 8.16 - 8.21); and
• the implementation of recommendations and dissemination of lessons (paragraphs 8.22 - 8.28).

The form of determinations

8.1 Section 6(1) of the Act provides that at the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff is to make a determination setting out the following circumstances of the death, so far as they have been established to his satisfaction:

"(a) where and when the death and any accident resulting in the death took place;

(b) the cause or causes of such death and any accident resulting in the death;

(c) the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided;

(d) the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and

(e) any other facts which are relevant to the circumstances of the death."

8.2 In Lothian Regional Council v. Lord Advocate, Lord Coulsfield observed:

"No statutory form is prescribed for the sheriff's determination. As I understand the position, it is at least common, if not the normal, practice for sheriffs to set out specific findings in relation to each of the five heads specified in section 6(1), if they are satisfied upon the evidence that such findings should be made, and to set out their reasoning or observations in a note appended to the findings. In the present case, specific findings have not been made, and in consequence, it is necessary to go through the sheriff's reasoning in some detail in order to show what he did find. In substance, however, the facts found by the sheriff appear to be reasonably clear." ⁷⁸

8.3 An examination by the Review of sheriffs' determinations shows that they do not follow a standard structure. There is a wide range of approaches. Overall there is not a common approach to presentation or content. All set out where and when the death took place. Most refer to the paragraphs of section 6(1) as headings. Some are particularly detailed, whereas others do not state any facts or refer to the Act.

8.4 I appreciate that there is bound to be a considerable variation between the circumstances of individual fatalities and hence the extent to which they require to be covered in evidence and in the determination. However, it seems clear that it would be desirable that all determinations should have the same general form. It would provide greater clarity and assist in a comparison between cases. Greater consistency overall could also enhance the status of the determinations.

8.5 In his response to the consultation paper Mr I H B Carmichael suggested that any difficulties could be avoided by the use of a standard form of determination. It would follow, as nearly as possible, the form of an interlocutor after a proof in civil proceedings in the sheriff court. He pointed out that this was already used by some sheriffs.

8.6 I am grateful to Mr Carmichael for his suggestion. With some minor changes in wording which I have made, it is as follows. The determination would begin with the sheriff's findings in fact, after which the sheriff would give his or her determination as to the circumstances of the death by findings related to the individual paragraphs of section 6(1), so far as established. This would be followed by the sheriff's note on the evidence and issues in the FAI. The sheriff should, of course, address the issues to which the procurator fiscal and the parties have directed their submissions, and, where no conclusion has been reached, state why this is so. To this the sheriff would add in a separate section, such recommendations, if any, as he or she considers appropriate, along with the reasons for them. Such recommendations should be as specific as possible, so as not to leave any doubt as to whether they have been implemented. I am in favour of the adoption of a standard form of determination on these lines. Further assistance can no doubt be given by the Judicial Studies Committee.

8.7 I therefore recommend the use by sheriffs of a standard form of determination, addressing the issues in the FAI and incorporating, according to the nature of the case, findings in fact, findings related to section 6(1) of the Act, a note on the evidence and issues, and such recommendations, if any as he or she considers appropriate.

The interpretation of section 6(1)(c), (d) and (e) of the Act

8.8 Section 6(1)(d) is concerned with "the defects, if any, in any system of working which contributed to the death or any accident resulting in the death". I have noted that in their determinations sheriffs have given a wide interpretation to these words, so as to cover both a system of working beyond the context of employment, and the absence of any system of working. ⁷⁹

8.9 In regard to section 6(1)(e), Mr I H B Carmichael said in his response, as he did in his book, ⁸⁰ that it should not be used as a substitute for a proper rehearsal of findings in fact. He referred to the following judicial statement:

"The provisions of section 6(1)(e) are still wider and, in my view, entitle and indeed oblige the court to comment upon, and where appropriate make recommendations in relation to any matter which has been legitimately examined in the course of the inquiry as a circumstance surrounding the death if it appears to be in the public interest to make such comment or recommendation." ⁸¹

8.10 A number of questions of interpretation of section 6(1)(c), on which there are differing views, have come to my attention as a result of an examination of sheriffs' determinations and the responses to the consultation paper. It is desirable that there should be consistency, if necessary though amendment to the legislation.

8.11 Section 6(1)(c) is concerned with "the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided". Two points arise. First, some have said that what is contemplated is a "real or lively possibility". ⁸² Another view is that the test is higher than that. ⁸³ Yet another is that it is enough if the avoidance of the accident cannot be ruled out. ⁸⁴

8.12 Secondly, there is a division of view as to whether "might have been avoided" does or does not include a consideration of hindsight. ⁸⁵ I would comment that, having regard to the public interest in the learning of lessons from the circumstances of a fatality, there is considerable force in the view that sheriffs should take hindsight into account.

8.13 I recommend that consideration should be given to the clarifying of the meaning of section 6(1)(c), if necessary by amendment to the legislation.

The use of determinations and fatal accident inquiry evidence in other proceedings

8.14 I am satisfied that no change should be made to the provision ⁸⁶ that the determination may not be founded on in other proceedings. This is supported by the consideration that it does not determine the rights and obligations of anyone.

8.15 The consultation paper raised the question whether the evidence given in an FAI should continue to be admissible in other proceedings, so that it may be used to challenge the credibility or reliability of evidence given in such proceedings. A minority of the respondents considered that if such evidence were inadmissible this would be in the public interest in that it would assist witnesses in being frank and uninhibited, which might accelerate and shorten the time taken by FAIs. However, the great majority of respondents were in favour of no change, maintaining that witnesses should not be encouraged to say what suited them, with the risk that the reputation of the FAI process might be damaged. I am not persuaded that the law should be changed on this point.

The publication of determinations

8.16 The legislation provides that the sheriff clerk has to send to the Lord Advocate a copy of the determination; and, to the Registrar General of Births, Deaths and Marriages for Scotland, the name and last known address of the person who has died and the date, place and cause of his death. ⁸⁷ Where the determination is not made until some time after the hearing, the sheriff clerk has to send a copy free of charge to the procurator fiscal and to the parties to the FAI. ⁸⁸ In addition, upon payment of a prescribed fee, any person may obtain a copy of the determination, and, if that person has an interest in the inquiry, obtain a copy of the transcript of the evidence within a prescribed period. ⁸⁹ The sheriff clerk has also to allow any person to inspect a copy of the determination at the sheriff clerk's office free of charge for three months after the determination. ⁹⁰

8.17 It is, in my view, necessary to go further. It is very important that access to relevant determinations should be readily obtainable. This serves the important purposes of assuring the public that the circumstances have been judicially determined, assisting with preparation for other inquiries and enabling accurate statistics for different types of case to be obtained, as well as helping in the dissemination of the lessons of FAIs - a subject to which I will return later in this chapter.

8.18 At present the Scottish Courts website provides the text of determinations from 1996. ⁹¹ However, this is subject to two qualifications. First, determinations are published on the website only for such cases as the sheriff considers appropriate. In the result, what is available on the website does not give a complete picture. Thus practitioners' knowledge of previous determinations on a similar subject may depend on their personal experience or on what happens to come to their attention. Secondly, there is no means by which the user of the website can search for determinations relating to specific subjects, such as deaths in the course of employment or in prison.

8.19 I am satisfied that there in no need to create a separate system for access to determinations. The better course is to build on, and improve, what already exists. I consider that the Scottish Courts website should contain all determinations. I appreciate that this may mean the inclusion of determinations which are relatively formal, but even they may yield useful information, perhaps of a statistical nature. I do not overlook the fact that some relatives may not want details about the deceased to appear on the website. The answer to this understandable concern is for the SCS, in consultation with the sheriff, to redact the text so as to eliminate the means of identifying the deceased. ⁹² Sheriffs should determine at the FAI whether this will be appropriate.

8.20 As regards the use of the website, it is plainly desirable to make it as fully searchable as is practicable, so that the user can readily identify the determinations that are relevant for his or her purpose, for example, by reference to date, context of the death or sheriffdom. It is also important that each determination should be identifiable with certainty, by being given a distinguishing mark, such as a unique combination of letters and numbers.

8.21 Accordingly I recommend that, subject to such redaction as may be appropriate, the Scottish Courts website should contain all determinations; and that the website should be fully searchable.

The implementation of recommendations and the dissemination of lessons

8.22 As I stated in paragraphs 3.30 and 3.34, I consider that the sheriff should have an explicit power to make recommendations directly related to the circumstances of the individual case, and that steps require to be taken to see, so far is as practicable, that such recommendations are effective. I am in favour of a system for monitoring response to them. This is the practice in other jurisdictions, including Victoria and Alberta. In my view what is required is a system by which the entity or body to whom a recommendation is directed is required to confirm that it is implementing the recommendation or give reasons for not doing so. The response should be made within a period set by the sheriff in the light of submissions by the procurator fiscal and the other parties to the FAI. The period should obviously be as short as possible, but long enough to give the entity or body adequate time to absorb the determination and decide on its course of action in the light of its responsibility for the health and safety of others. The responses should be recorded and published. Publication would serve the purpose of bringing the response to the attention of organisations concerned with matters of safety who could take action if they considered the response to be unsatisfactory.

8.23 I have considered by whom responses should be monitored. I am not in favour of the sheriff court undertaking this role. It is clear that monitoring should be conducted at a national level. It has been suggested that the HSE would be suitable for the purpose. However, there are types of case which fall well outside the scope of their responsibility. The answer seems to me to lie in appropriate arrangements being made by the Scottish Government.

8.24 The responses to recommendations made by the sheriffs should be addressed to an appropriate department of the Scottish Government. Some years ago, following a petition by ENABLE Scotland, the Scottish Government created a webpage ⁹³ on its website which was to set out sheriffs' recommendations with the entity or body responsible for their implementation. Unfortunately the webpage has not been kept up to date. More fundamentally, there is no system for taking any further steps. I consider that the Scottish Government webpage should be revived and upgraded. It should show, under reference to the sheriff's determination, the text of the recommendation, to whom it was directed and its reasons, with a link to the full text of the determination on the Scottish Courts website. It should also show the text and date of the response or responses. The relevant department should also be responsible for publishing an annual report of the recommendations and the responses to them. This could also include an analysis of trends. The report should also be laid before the Scottish Parliament and the United Kingdom Parliament, since recommendations may require the consideration of devolved and reserved matters. ⁹⁴

8.25 I accordingly recommend that, when a recommendation is made by a sheriff, the entity or body to whom it is directed should be under a duty to make a written response to an appropriate department of the Scottish Government within a period set by the sheriff, stating whether and to what extent it has implemented, or intends to implement, the recommendation, or, if not, for what reason or reasons. Where implementation is stated as intended, there should be a further duty thereafter to confirm its implementation.

8.26 I also recommend that the Scottish Government webpage should be revived and upgraded. It should show, under reference to the sheriff's determination, the text of the recommendation, to whom it was directed and its reasons, with a link to the full text of the determination on the Scottish Courts website. It should also show the text and date of the response or responses. The relevant department should also be responsible for publishing an annual report of the recommendations and the responses to them. The report should also be laid before the Scottish Parliament and the United Kingdom Parliament.

8.27 In paragraph 3.32 I recommended that the sheriff should have power to make recommendations to any body concerned with safety which appeared to the sheriff to have an interest in the circumstances of the death. I gave as an example a body responsible for supervising or enforcing safety standards, whether or not it was a party to the FAI. It may be that the sheriff would not wish to go so far as to make a recommendation for action by such a body. However, in the interests of bringing home the lessons of the FAI, the sheriff should have power, having heard submissions from the procurator fiscal and the parties, to direct to whom a copy of the determination should be sent, such as a body of that nature. It should be noted that under the existing legislation the sheriff clerk has to send a copy of the determination to a minister or government department or to the Health and Safety Commission (which merged with the HSE in April 2008 ⁹⁵), but this is only "on request". ⁹⁶

8.28 I accordingly recommend that when issuing the determination the sheriff should have power to direct to whom a copy of the determination should be sent for the dissemination of the lessons of the FAI.