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You are here: BAILII >> Databases >> Scottish Court of Session Decisions >> The Lord Advocate, Re An Application For Judicial Review [2007] ScotCS CSOH_135 (01 August 2007)
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Cite as: [2007] ScotCS CSOH_135, [2007] CSOH 135

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OUTER HOUSE, COURT OF SESSION

 

[2007] CSOH 135

 

P1067/05

 

 

OPINION OF LORD KINCLAVEN

 

in the Petition of

 

THE LORD ADVOCATE

 

Petitioner

 

for

 

Judicial Review of a finding by Sheriff Annella M Cowan dated 14 December 2004 in respect of the expenses at a fatal accident inquiry

 

 

­­­­­­­­­­­­­­­­­________________

 

 

 

Petitioner: Moynihan, Q.C., Mure; M. Sinclair, Scottish Executive

Interested Parties: O'Neill, Q.C.; CMS Cameron McKenna LLP, Aberdeen

 

1 August 2007

 

Introduction

[1] This is a Petition at the instance of the Lord Advocate for judicial review of a finding by Sheriff Annella M Cowan dated 14 December 2004 in respect of the expenses at a fatal accident inquiry into the death of William Geddes Smith.

[2] That inquiry was held in Aberdeen under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976.

[3] In particular, Sheriff Cowan found the Lord Advocate liable to parties represented at the fatal accident inquiry, namely, GlobalSantaFe Drilling (North Sea) Limited, GlobalSantaFe International Services Inc and James Smith ("the Interested Parties" in this Petition).

[4] The important question which arises is whether it is competent for a sheriff to make a finding of expenses against another party in relation to a fatal accident inquiry.

[5] The significance of Sheriff Cowan's decision can be illustrated by reference to the most recent edition of Macphail on Sheriff Court Practice (third edition, at page 1000, paragraph 28.23) where the learned authors state inter alia:-

"... a fatal accident inquiry is not an adversarial process, and no awards of expenses should normally be made against or in favour of any compearing party, unless it can be shown that party's actings are vexatious. Indeed until Smith (Fatal Accident Inquiry) 2005 SCLR 355 (which is Sheriff Cowan's decision in the present case) it was thought that to make such an award would be contrary to the public interest, and would be susceptible to reduction by judicial review. (See The Herald, June 27, 1997, for a news report of a case in which decree of reduction was granted in respect of a finding of liability in expenses. This was however, due to the parties being unwilling to contemplate the cost of a contested Court of Session judicial review.)"

[6] The case came before me for debate at a first hearing which lasted several days.

[7] Mr Moynihan QC and Mr Mure appeared for the Petitioner and argued, in essence, that the Sheriff's decision was ultra vires and should be reduced.

[8] Mr O'Neill QC appeared for the Interested Parties and argued that the finding was competent and should stand.

[9] I was referred to an impressive range of authority and numerous lines of argument - which I will outline (albeit in summary) below.

[10] The original diet of debate was continued to a further diet. Thereafter, while the case was at avizandum, I received further written submissions in relation to the case of Stankiewicz v Poland.

[11] In the whole circumstances, and for the reasons outlined below, I am satisfied that the Petitioner's arguments are well founded and should prevail.

[12] I can readily understand why Sheriff Cowan formed the view which she did in this particular case but the learned sheriff did not have the benefit of the very detailed submissions provided to me.

[13] In my opinion, in short, the award of expenses was not competent.

[14] Accordingly, I shall grant decree of declarator that the finding by Sheriff Cowan dated 14 December 2004 in respect of the expenses at the fatal accident inquiry into the death of William Geddes Smith was ultra vires and I shall reduce that finding.

[15] I shall also put the case out By Order in relation to the question of expenses of and incidental to the present proceedings.

 

The Background

[16] It might be helpful to highlight some features of the background.

[17] In general terms, by virtue of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c.14 as amended -"the 1976 Act"), the Lord Advocate is responsible through the procurator fiscal service for the investigation in the public interest of certain deaths in Scotland by means of the holding of a public inquiry.

[18] On 3 July 2001, William Geddes Smith ("the deceased") died as a result of an industrial accident whilst working off shore. Following a criminal trial held in Aberdeen Sheriff Court in January 2004, GlobalSantaFe Drilling (North Sea) Limited were found not guilty of certain offences in connection with the deceased's death. Following an application by the procurator fiscal the Sheriff made an order for the holding of an inquiry under the 1976 Act. The inquiry was held on various dated in 2004, when the following parties were represented. A Procurator Fiscal Depute represented the Crown. Miss J Burgess, Solicitor, represented the companies GlobalSantaFe Drilling (North Sea) Limited and GlobalSantaFe International Services Inc. Mr G McAteer represented Mr James Smith who was a driller at the time of the accident. The family of the deceased were not represented at the inquiry.

[19] The sequence of events following the conclusion of the inquiry was broadly as follows:-

·        On 12 October 2004, the agents for the interested parties argued that expenses could and should be awarded against the Crown.

·        On 15 November 2004, Sheriff Cowan issued her determination in terms of section 6(1) of the 1976 Act. The determination has been lodged as No. 7/2 of Process.

·        The motion for expenses was heard by Sheriff Cowan on 6 December 2004.

·        On 14 December 2004 Sheriff Cowan issued her Note dealing with the motion for expenses. The Sheriff's Note has been produced as No. 6/1 and 7/3 of Process.

 

The Sheriff's Note dated 14 December 2004
[20]
It might also be helpful to outline some of the salient features of the sheriff's decision.

[21] The motion for expenses was intimated as far back as May 2004 when the inquiry was adjourned to await the identification and subsequent attendance of the Crown's witness Mr Beale who was a Health and Safety Executive Inspector. The motion applied to such parts of the inquiry as took place after 20 May 2004.

[22] On 12 October 2004 it had been argued by the interested parties that the motion for expenses was unusual but competent. The interested parties emphasised that the whole situation was unusual. They founded upon the conduct of the Crown which had inter alia delayed and dislocated proceedings. It was argued that an inquiry had not been necessary. The Lord Advocate had been written to twice seeking an explanation for the decision to hold the inquiry in circumstances in which a dispensation would normally have been granted under section 1(2) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ("the 1976 Act").

[23] As noted by the sheriff, section 1(2) of the 1976 Act specifically empowers the Lord Advocate to decide that, in the case of a death in respect of which the whole facts have been explored at a criminal trial, no fatal accident inquiry should be held.

[24] The interested parties also emphasised the expense to the public purse and the trauma to witnesses in giving evidence again soon after a criminal trial. They argued that nothing had been achieved by the inquiry. Fewer witnesses had been called than at the trial. Only one new witness had been called and his evidence added nothing and was of no assistance. There were also some difficulties encountered in precognoscing the Crown's expert witness and problems were caused by the late lodging of voluminous productions.

[25] It was pointed out that similar motions had been made in at least two fatal accident enquiries in Sheriff Cowan's jurisdiction (Brent Spar and Cormorant Alpha).

[26] The Sheriff explained (at page 2 of her Note - No. 6/1 and 7/3 of Process) that:-

"On 6 December 2004 the Procurator Fiscal Depute argued that the motion was incompetent. He dealt summarily with the arguments made earlier by Ms Burgess and Mr McAteer. His submissions were brief in the extreme ..."

[27] The Sheriff outlined the submissions from the Procurator Fiscal Depute ("PFD") and continued (at page 2-3):-

"Having heard from the PFD, I was addressed by Ms Burgess and Mr McAteer. I then gave the Depute the opportunity to respond to their detailed submissions set out below. In a particularly unhelpful response which exemplified the attitude and approach of the Crown to and throughout the Inquiry, The Procurator Fiscal Depute repeatedly declined to present any further argument and merely stated that his instructions from Crown Counsel were that the motion was incompetent."

[28] Sheriff Cowan commented further (at page 3):-

"Accordingly, should I be persuaded that the motion is competent, I have no argument from the Crown on the merits of the motion and no explanation in answer to the criticisms which were levelled at the Crown's conduct by those representing the other parties to the Inquiry."

[29] The sheriff summarised the arguments for the interested parties at pages 3 and 4 of her Note.

[30] The "papers" produced by the interested parties (and referred to by the Sheriff on page 4) have now been produced as No 6/23 of Process.

[31] In relation to the first argument, relating to competency, Sheriff Cowan concluded (at page 4) that:-

"I have no hesitation in agreeing with the proposition that the motion is competent".

[32] The sheriff stated inter alia (at page 4):-

"If Parliament intends to limit the inherent power of the Court to deal with expenses in proceedings brought before it then, in my view, express provision to that effect is required ..."

[33] The second part of the argument submitted by the interested parties was to the effect that in the very special circumstances in which this inquiry took place, it was in the public interest that expenses be awarded against the Crown.

[34] As summarised by the Sheriff (at page 6), Ms Burgess, for the companies, highlighted in particular the following three circumstances:-

(1) In her submission the whole fatal accident inquiry had been unnecessary. The subject matter canvassed had been the subject of a trial before a jury lasting 10 days during which the whole Crown case had been led.

(2) At the preliminary hearing on 30 April 2004, the Crown had identified certain topics which, it was said, had not been canvassed at the trial and which it would intend to cover at the fatal accident inquiry but this had not been done.

(3) Much delay and additional expense had been caused when Mr Beale, Health and Safety Inspector, was added to the Crown list of witnesses on 11 May, 6 days before the inquiry was due to start. Mr Beale was said by the Crown to be an expert witness.

[35] The sheriff provided further details of that aspect of the case at page 6 of her Note onwards.

[36] Mr McAteer, for David Jones, suggested (see page 8) that the whole fatal accident inquiry had been a waste of time.

[37] Sheriff Cowan outlined her views further at pages 9 to 13 of her Note. She notes, inter alia, that:-

"When the necessity for holding this inquiry was raised at the preliminary hearing the Crown indicated that matter not covered at the jury trial would be dealt with. It was not."

[38] She explained the unsatisfactory situation which arose in relation to Mr Chaplin and Mr Beale and questions relating to precognition, transcripts and the evidence of Charles Cumming.

[39] Sheriff Cowan stated inter alia (at page 11):-

"There was no answer for the Crown to the proposition advanced by Ms Burgess and Mr McAteer that the inquiry had been unnecessary, had canvassed nothing which had not been the subject of evidence at the trial and had served no public interest whatsoever. With that proposition I entirely agree. I am of the clear opinion that there was no justification for the holding of the inquiry and that the Crown's position can properly be characterised as vexatious. ..."

[40] Sheriff Cowan recognised (at page 11) that the reasons given by the Procurator Fiscal would probably have been a sufficient answer to an application for judicial review of the Lord Advocate's decision to hold the inquiry. However, in her view "by the end of the inquiry it was clear that the reasons were without merit".

[41] Sheriff Cowan concluded by stating (at page 12-13):-

"In the whole circumstances, if the Crown's decision to hold this Inquiry did not amount to oppression, in my view it came very close. The way in which it was conducted was, in my opinion, oppressive. I am of the clear opinion that there was no justification for the holding of this Inquiry and that the Crown's position can be properly characterised as vexatious.

Ms Burgess and Mr McAteer restricted their claim for expenses to the procedure after the adjournment in May 2004. In my view these expenses were occasioned entirely by the actings of the Crown and could have been avoided had the Crown prepared and presented the evidence appropriately and in accordance with the traditionally fair and even handed approach to be expected of the Crown.

An award of expenses in any proceedings before a court is not a reward for success or a sanction for failure. Rather expenses are awarded to redress the balance between the party causing unnecessary and unjustified expense and the party incurring it.

An award of expenses against the Crown in a fatal accident inquiry will be vary rare given the necessity for such inquiries in the public interest and to protect the workforce from avoidable accidents, whatever the expense to parties. It seems to me, however, that for all the foregoing reasons, in the public interest an award should be made in this case.

Accordingly, I find the Lord Advocate liable to GlobalSantaFe Drilling (North Sea) limited; GlobalSantaFe International Services Inc of Panama and James Smith, parties represented at the fatal accident inquiry; and decern; I allow an account of expenses to be given in by the foregoing parties in respect of expenses incurred from and including 21 May 2004 and remit to the auditor to tax and report."

 

The Petition

[42] Before me, the Petitioner sought (a) declarator that the sheriff's decision was unlawful in the sense of being ultra vires and (b) reduction of the sheriff's decision.

[43] It is averred in the Petition (in Statement 7) inter alia that:-

"The sheriff's finding of expenses against the petitioner was incompetent and ultra vires. On a proper construction, the Act does not give the sheriff power to award such expenses against the Crown at such an inquiry. In the circumstances, the sheriff had a statutory duty to hold the Inquiry, and the procurator fiscal had a statutory duty to adduce evidence with regard to the circumstances of the deceased's death (see sections 3(1)(a) and 4(1) of the Act). No other parties were brought into the proceedings by the procurator fiscal, and no lis therefore arose. The proceedings were investigatory, and restricted to the facts. Moreover, and in any event, the sheriff's award was unreasonable and unlawful. It was contrary to the long-established principle that where the Lord Advocate takes proceedings in the public interest, no award of expenses should be made to or against other parties: see HMA v Aldred 1922 JC 13 and Gallacher, Petitioner 1990 JC 345. Such awards would hamper the Lord Advocate in the performance of his (now her) public duties, and would not be in the interests of other parties appearing or being represented, or considering appearing or being represented, at fatal accident inquiries, who themselves would be open to such awards being made against them."

 

The Answers

[44] The interested parties sought dismissal of the petition.

[45] Answers were lodged jointly on behalf of all three interested parties, namely, GlobalSantaFe Drilling (North Sea) Limited, GlobalSantaFe International Services Inc and James Smith.

[46] It was pointed out that the first interested party was found not guilty of offences under Section 3 of the Health and Safety at Work Act 1974 (as amended) with which it had been charged on the instructions, or under the authority, of the petitioner.

[47] The averments in Answer 7 include the following:-

"... the respondent's award of expenses in favour of the interested parties was neither incompetent nor unlawful. Neither was the award of expenses in the whole circumstances of the case unreasonable, under explanation that, in any event, by letter of 16 June 2005 from Lindsay Nichol, Divisional Solicitor with the Scottish Executive to the agents for the interested parties the petitioner expressly disavowed any challenge to the respondent's exercise of discretion to award expenses in the circumstances of the present case and stated that he sought only to 'challenge the competency of the Sheriff's award on the grounds set out in the petition'. ... An FAI brought and conducted under the 1976 Act is not a criminal process, but is instead a sui generis judicial procedure before the Sheriff conducted along the lines of a civil proof. Expenses are generally awarded in civil procedure. But even if and when acting in as administrative (rather than strictly judicial) procedure, the Sheriff retains the power in exceptional circumstances such as the present case to make an award of expenses as between the parties before her (see: Milton, Petitioners, OH unreported decision of Lord Gill 14 June 1996; Magistrates of Tobermory v Capaldi, 1938 SLT (Sh. Ct.) 38; Butler v Glasgow Corporation, 1930 Sh. Ct. Rep.72; Liddell v Ballingry Parish Council, 1908 SC 1082; Dunbartonshire County Council v Clydebank Burgh Commissioners (1901) 4F 112. The cases on which the petitioner seeks to rely in his petition for judicial review are cases before the criminal courts, where it is clear that the courts have traditionally regarded the petitioner as exercising a distinct, unique and privileged constitutional position (see Hester v McDonald, 1961 SC 370 per Lord President (Clyde) at 378-379) and within which there is general power or practice for the expenses awards to be made. There is no presumption that the constitutional immunities, which traditionally attached to the petitioner's office in the prosecution of crime similarly attach to his (now her) office in the investigation of deaths. In any event, the powers of the petitioner in relation to both the prosecution of the crime and the investigation of deaths are, post devolution, now statutorily limited and subject to review by the courts: (see Sinclair v HM Advocate, JCPC, 11 May 2005 per Lord Hope of Craighead at paragraph 37; and HM Advocate v Scottish Media Newspapers Ltd 2000 SLT 331 per the Lord Justice General (Lord Roger of Earlsferry) at 333c). In particular the decision on the holding of an FAI and the manner in which it is conducted falls within the ambit of Article 2 ECHR (Oneryildiz v Turkey, ECtHR (Grand Chamber), 30 November 2004); R (Khan) v Secretary of State for Health [2004] 1 WLR 971; R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, HL). Within the context of ensuring compliance with Article 2 ECHR the sheriff must be recognized as having within the context of an FAI the power, if so advised, to make an award of expenses in favour of parties properly participating before the inquiry."

 

Submissions and Productions

[48] What follows is an abbreviated summary of the very detailed submissions counsel.

[49] It is neither practicable nor necessary to rehearse everything that was said - but I have taken all the submissions into account in reaching my decision.

[50] The parties lodged sets of written submission - which, in order to keep this opinion within manageable bounds, I gratefully incorporate by reference.

[51] The Petitioner's written submissions are contained in No. 9 and, more recently, No. 11 of Process.

[52] The Interested Parties' original written submissions are to be found in No. 10 of Process. There was also a Supplementary Note of Argument for the Interested Parties (No. 10A of Process) which seeks to summarise and respond to the Petitioner's reply. The more recent Supplementary Submission for the Interested Parties is No. 12 of Process.

[53] The Petitioner's productions comprise Nos. 6/1 to 6/32 of Process.

[54] The Interested Parties lodged eight Inventories comprising productions Nos. 7/1 to 7/36 of Process.

[55] In particular, the Petitioner produced the following:-

6/1 The Fatal Accidents Inquiry (Scotland) Act 1895 (c.36).

6/2 The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 (c.35).

6/3 The Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 (c.14) (as amended).

6/4 The Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 S.I. 1977 No. 191 (S.29).

6/5 Scotland Act 1988 (c.46) section 48.

6/6 Encyclopaedia of the Laws of Scotland, paragraphs 78 to 93 on "Accident", W Green & Son, 1926.

6/7 Law and Practice of the Sheriff Courts in Scotland, chapter XXI on "public inquiries", Wm Jardine Dobie, 1952 (see in particular pages 453 to 455, 457 and 460).

6/8 Sheriff Court Practice, chapter 27 on "Fatal Accident Inquiries", I D Macphail, 1998 (and in particular page 898).

6/9 The Laws of Scotland, Stair Memorial Encyclopaedia, Reissue volume 4 "Criminal Procedure" paragraphs 448-473 on "Fatal Accident Inquiries".

6/10 Summary Applications and Suspensions, paragraphs 32.01 - 32.19 & chapter 37, G Jamieson, 2000 (particularly paragraphs 32-02, 37-02, 37-04).

6/11 Hansard: Parliamentary Debates, Commons, Scottish Standing Committee 1975-76 Vol. XII, 16 and 18 March 1976 (cols. 1-108) (particularly columns 26-29, 32-33, and 99-102).

6/12 The Society of Accountants in Edinburgh and Others v The Lord Advocate (as representing the Minister of Labour) 1924 SLT 194 (particularly at page 198).

6/13 McArthur & Others v Lord Advocate and the Scottish Ministers (Lord Glennie, 9 December 2005, [2005] CSOH 1650 - particularly at paragraphs [9] to [12], [15] and [16]).

6/14 David Allen & Sons Billposting Ltd v Corporation of Edinburgh 1909 SC 70.

6/15 Arcari v Dumbartonshire County Council 1948 SC 62.

6/16 W v Kennedy 1988 SC 82 (particularly at page 84 et seq).

6/17 Rodenhurst v Chief Constable of Grampian Police 1992 SC 1 (particularly at pages 3, 6, 7, 9 and 10).

6/18 East Kilbride District Council v King 1996 SLT 30 (particularly at pages 33 I-L, 34 C-F, 35 C-D and L and 36 D-E).

6/19 Macphail: Sheriff Court Practice (2nd Edition) paras. 2.05-2.06, 2.18, 19.03-19.06, and 19-07.

6/20 Merchant Shipping Act 1995 (c.21) sections 268-270 (particularly sections 268(1), (4), (8) and (9).

6/21 The Transfer of Functions (Lord Advocate and Secretary of State) Order 1999 (S.I. 1999 No. 678).

6/22 Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (as passed).

6/23 Article from "The Herald", 27 June 1997 concerning Fatal Accident Inquiry into the death of George Robertson Keggans; with (i) interlocutors dated 10 and 12 June 1997 in the petition of OTR Tyres for judicial review; (ii) letter dated 27 November 1996 from Lamonts, Solicitors, to the Keeper of the Rolls; and (iii) letter dated 21 January 1997 from Lamonts, Solicitors, to the Keeper of the Rolls.

6/24 Determination of Sheriff Risk following the "Brent Spar" fatal accident inquiry into the deaths of David Anderton and others (particularly at pages 73-74).

6/25 Determination of Sheriff Jessop following the "Cormorant Alpha" fatal accident inquiry into the deaths of Robert Carmichael and others (particularly in section 41 at pages 74 and 75).

6/26 Schedule to The Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 (S.I. 1977 No. 191(S. 29) (see Production 6/4).

6/27 Carmichael: Sudden Deaths and Fatal Accident Inquiries (2nd edition, 1993) paras. 10.40 & 11.20 (particularly in relation to the "Lockerbie Inquiry" and "Brent Spar").

6/28 Determination in fatal accident inquiry into the death of George Robertson Keggans dated 1 February 1996 (particularly at pages 5 and 34).

6/29 Law and Practice of the Sheriff Courts in Scotland, chapter XIV on "Expenses", Wm Jardine Dobie, 1952 (particularly at pages 309-310).

6/30 Burgh Police Act 1892 (55 & 56 V. c. 55) sections 11 and 13.

6/31 Attorney General for Gibraltar v Shimidzu [2005]1 WLP 3335, [2005] UKPC 26 (particularly at pages 3335 - 3336, and 3342 H - 3343 C).

6/32 Nursing Homes Registration (Scotland) Act 1938 (c. 73) section 3.

[56] In addition, I was also provided with references to:-

6/33 The judgment of Sheriff Principal J C McInnes QC in Miller H Caldwell, Authority Reporter for Dumfries and Galloway v NJLI and DEI and The Scottish Legal Aid Board, dated 27 December 2001.

6/34 The Civil Legal Aid (Scotland) (Fees) Regulations 1989 (No. 1490 S.119) (particularly Regulation 5(1) and (4)).

6/35 The Civil Legal Aid (Scotland) (Fees) Amendment Regulations 2003 (SSI 2003 No. 178) (particularly Regulations 5, 7(b) and 11 and Schedule 7).

6/36 Regulation 5 of the Civil Legal Aid (Scotland) (Fees)) Regulations 1989 (as amended by SSI 2003/178) (particularly Regulation 5(1), (2), (2A), (2B), and (2C), Regulation 4, footnote "4" and Schedule 5).

6/37 The Community Legal Service (Financial) Regulations 2000 (2000 No 516).

6/38 The Community Legal Service (Financial) (Amendment No. 2) Regulations 2003 (2003 No. 2838) (particularly Regulation 3 adding Regulation 5C) referred to in R (Khan) v Secretary of State for Health [2003] 4 All ER 1239 [Production 7/17].

[57] In their written submissions the Interested Parties provided references and quoted passages from a large number of authorities (see further below).

[58] The Interested Parties also produced the following:-

7/1 Letter from Lyndsey Nicoll, Divisional Solicitor, for the Scottish Executive to CMS Cameron McKenna, dated 16 June 2005.

7/2 Determination of the Sheriff following the FAI dated 15 November 2004.

7/3 Note on expenses by Sheriff Cowan dated 14 December 2004.

7/4 Crown Office letter dated 29 April 2004.

7/5 Letter from CMS Cameron McKenna to the Lord Advocate dated 25 March 2004.

7/6 HMA v Aldred 1922 JC 13.

7/7 Gallacher Petitioner 1990 JC 345.

7/8 Milton Petitioners, OH unreported decision of Lord Gill 14 June 1996.

7/9 Magistrates of Tobermory v Capaldi 1938 SLT (ShCt) 38.

7/10 Butler v Glasgow Corporation 1930 Sh Ct Rep 72.

7/11 Liddall v Parish Council of Ballingry 1908 SC 1082.

7/12 Dunbartonshire County Council v Clydebank Burgh Commissioners (1901) 4F 112.

7/13 Hester v MacDonald 1961 SC 370.

7/14 Sinclair v HMA 2005 SC 28.

7/15 HMA v Scottish Media Newspapers Ltd 2000 SLT 331.

7/16 Oneryildiz v Turkey, ECtHR (Grand Chamber) 30 November 2004.

7/17 R (Khan) v Secretary of State for Health [2003] 4 All ER 1239.

7/18 R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 (HL).

7/19 Del Latte v The Netherlands, European Court of Human Rights, 9 November 2004.

7/20 R (Khan) v Secretary of State for Health [2004] 1 WLR 971.

7/21 R (Davies) v Birmingham Deputy Coroner [2004] 1 WLR 2739.

7/22 Paul and Audrey Edwards v United Kingdom, European Court of Human Rights, 14 March 2002.

7/23 R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600.

7/24 Benedetto v The Queen (No 2) [2004] 1 WLR 500.

7/25 Millar v Dickson 2002 PC 30.

7/26 Taylor and Another v Lawrence and Another [2003] QB 528, [2002] EWCA Civ 90.

7/27 R (Wright & Another) v Secretary of State for the Home Department [2001] 1 PLR 337.

7/28 R (Corner House Research) v Secretary of State for Trade and Industry [2005] 1 WLR 2600.

7/29 Carmichael on Sudden Deaths and Fatal Accidents Inquiries, 3rd Edition, Chapters 5 and 10 and paragraphs 11-39 to 11-46.

7/30 Inquiries Act 2005 (c.12).

7/31 Notice of Accidents Act 1894, 57 and 58 Vict (c. 28), sections 3 and 7.

7/32 Gorton Local Board v Prison Commissioners [1904] 2 KB 165.

7/33 Revenue and Customs Commissioners v IDT Card Services Ireland Ltd [2006] All ER (D) 220.

7/34 Ghaidan v Godin-Mendoza [2004] 2 AC 557.

7/35 Regina v Lyons and others [2003] 1 AC 976.

7/36 Caldwell v I 2002 SLT (ShCt) 28.

7/37 Stankiewicz v Poland ECtHR, App. No. 46917/99, Judgment dated 6 April 2006.

[59] The interested Parties and the Petitioner also lodged additional written submissions in relation to the case of Stankiewicz v Poland (see further below)

[60] Sheriff Cowan did not have that wealth of authority for guidance.

[61] As mentioned at the outset, Sheriff Cowan's decision is reported as Smith (Fatal Accident Inquiry) 2005 SCLR 355 - together with a helpful commentary written by Sheriff R A Dickson.

[62] Sheriff Cowan's decision is also commented upon in the most recent edition of Macphail on Sheriff Court Practice (third edition, at page 1000, paragraph 28.23).

 

The Statutory Provisions

[63] Before turning to the submissions of parties it might be helpful to mention some of the more salient features of the statutory provisions which formed the central focus of the debate.

[64] A chronological overview is, broadly, as follows.

 

The Fatal Accidents Inquiry (Scotland) Act 1895 (c.36) - [No 6/1 of Process]

[65] The Fatal Accidents Inquiry (Scotland) Act 1895 ("the 1895 Act") made provision for the public investigation by a sheriff and a jury of fatal accidents sustained in the course of industrial employment or occupation.

[66] The Act extended to all cases of death of any persons, whether employers or employed, engaged in any industrial employment or occupation in Scotland, due or reasonably believed to be due to accident occurring in the course of such employment or occupation.

[67] By virtue of section 3 of the 1895 Act, the procurator fiscal was given the duty of proceeding to collect evidence regarding any death to which the Act applied, and thereafter presenting to the sheriff a petition craving him to hold "a public inquiry" in regard to the cause or causes of the death or deaths, and the circumstances of the accident.

[68] The procurator fiscal also had to furnish to the sheriff clerk, so far as possible, the names and addresses of the wife or husband or nearest known relative and the employer, if any, of each person who had lost his or her life in the accident.

[69] Section 4(3) of the 1895 Act provided that:-

"In the event of the Secretary for Scotland being satisfied that the sheriff is unable, owing to the pressure of official duty or other cause which the Secretary for Scotland shall hold to be sufficient, to hold the inquiry, the Secretary for Scotland shall appoint a competent person, who shall possess the qualifications necessary for the office of sheriff-substitute, to hold the inquiry in his stead, and the person so appointed shall hold the inquiry and shall have all the powers of a sheriff under this Act, for the purposes of the said inquiry."

[70] After presentation of the petition the sheriff would make an order directing that a public inquiry be held at a time to be specified in the order being a time as soon as reasonably possible, in such court house within his jurisdiction as may be nearest to the place where the accident occurred. The sheriff was also to grant warrant to cite witnesses and havers to the inquiry.

[71] A duty was placed on the sheriff clerk of intimating the time and place of the inquiry to the wife or husband or nearest known relative and to any employer of the person who had lost his or her life in the accident. Intimation was also to be made to certain government officials and departments. The sheriff clerk also had to insert an advertisement giving the time and place of the inquiry in a newspaper or newspapers circulating in the district.

[72] Section 4 (4) of the 1895 Act provided that "the inquiry shall be by the sheriff and a jury".

[73] Section 4(5) provided that the jury was to consist of seven jurors, made up of five common and two special jurors (see the Stair Encyclopaedia (at paragraphs 452) for further details).

[74] Section 4 (6) of the 1895 Act provided that:- "The statutory provisions now in force in regard to challenge of jurors in civil and criminal cases in Scotland shall not apply to inquiries under this Act" but any person interested in the inquiry could state to the sheriff an objection as to any person balloted to serve on the jury, and if the sheriff considered that sufficient cause had been shown why such person should not so serve the sheriff would not allow that person to serve on the jury. Neither the employers of the deceased nor any person working for the same employers were to be jurors in any such inquiry.

[75] Section 4 (7) of the 1895 Act provided that the jury, after hearing the evidence, submissions by or on behalf of persons appearing at the inquiry and the summing up by the sheriff, if he considered such summing up necessary or proper, "shall return a verdict" setting forth, so far as proved, when and where the accident and the death or deaths to which the inquiry related took place and the cause or causes of such death or deaths.

[76] The jury was empowered, by section 4(8) to return a verdict by a majority, provided that at least one hour had elapsed after the jury had been enclosed.

[77] Section 4(9) provided, in essence, that jury costs were to be recovered from the public purse.

[78] Section 4(10) provided that:-

"The jury shall be cited by the sheriff clerk from the sheriff court jury book in the manner provided by statute for the citation of jurors in civil cases in Scotland, and the existing statutory provisions relative to fines for non-attendance of jurors, and to the swearing of jurors, shall apply to inquiries under this Act."

[79] The "Procedure at Inquiry" was regulated by section 5 of the 1895 Act.

[80] The inquiry was to be open to the public.

[81] The procurator fiscal was to adduce evidence, including such medical or skilled evidence as he deemed expedient, in regard to the cause or causes of the death or deaths and the circumstances of the accident.

[82] The sheriff could competently grant warrants and carry out inspections under section 5(2).

[83] Section 5(3) provided that:-

"It shall be competent to wife or husband, the relatives and the employers of the person who had lost his or her life ... to appear at, take part in, and adduce evidence at the inquiry, either by themselves or by instructing counsel or agents or by any other person whom the sheriff may allow to appear on their behalf".

[84] This right was also extended to inspectors of mines and inspectors of factories where the accident had happened in or about a mine or in a factory or workshop.

[85] The right also extended to any person employed under the same employer and also "to any other person or persons whom the sheriff may consider to have a just interest in the inquiry".

[86] Section 5(4) of the 1895 Act provided inter alia that:-

"The evidence adduced at such enquiry shall be taken on oath, the witnesses shall be subject to cross-examination, and the inquiry shall be conducted as nearly as possible in accordance with the ordinary procedure in a trial by jury before the sheriff court".

[87] The examination of any person as a witness at the inquiry was not to be a bar to criminal proceedings being taken later against him. No witness was to be compelled to answer any question tending to show that he was guilty of any crime or offence. The evidence was to be taken down in writing either at length or in shorthand.

[88] By virtue of section 5 (5), the verdict was to be recorded in the sheriff court books and provision was made for the transmission of relevant documents to the Crown agent.

[89] Section 5(6) provided that:-

"Every person attending such inquiry as a witness or haver on citation by the procurator fiscal shall be allowed such expenses as are paid to any person attending a criminal trial by jury in the sheriff court on such citation".

[90] Section 6 contained the following "Saving" provision:-

"Nothing in this Act contained shall alter or effect the existing law and practice relative to the duties of procurators-fiscal to inquire and report to the Crown agent in regard to cases of death from accident, or relative to any powers at present vested in the Lord Advocate to cause public inquiries to be held, or the existing law or practice with reference to criminal proceedings against any person or persons criminally responsible for any death, nor shall the verdict returned at an inquiry under this Act be competent to be given in evidence or to be founded on in any subsequent judicial proceedings, civil or criminal, arising out of the same accident."

[91] The 1895 Act was, however, amended in 1906.

 

The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 (c.35) - [No. 6/2 of Process]
[92]
In general terms, two important changes to the 1985 Act were made by the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 - all as explained more fully in the Stair Encyclopaedia (at paragraph 456 et seq).

[93] The first main change was to extend the task of the jury at an inquiry.

[94] Section 2 of the 1906 Act repealed section 4(7) of the 1895 Act and it was enacted that the verdict to be returned by the jury was also to deal with the cause of the accident, the person, if any, to whose fault or negligence the accident was attributable, the precautions, if any, by which the accident might have been avoided, any defects in the system or mode of working which contributed to the accident and any other facts disclosed by the evidence which, in the opinion of the jury, were relevant to the inquiry.

[95] The second change concerned sudden and suspicious deaths in Scotland.

[96] Section 3 of the 1906 Act provided:-

"In any case of sudden or suspicious death in Scotland, the Lord Advocate may, whenever it appears to him to be expedient in the public interest, direct that a public inquiry into such death and the circumstances thereof shall be held; and the public inquiry so directed to be held shall take place according to the forms and procedure prescribed by the Fatal Accidents Inquiry (Scotland) Act 1895, as altered by this Act".

[97] As outlined in paragraph 457 of the Stair Encyclopaedia:-

"Once again the procurator fiscal had an important role to play in connection with such inquiries. It was his duty (and still is) to report to the Crown Office a wide range of deaths (which tended to be expanded over the years 1906 to 1976) including deaths in suspicious circumstances, suicides, deaths (usually in hospitals) ... , deaths in road traffic accidents, deaths due to gas poisoning ... , deaths in prison or police cells, deaths under anaesthetic in unusual circumstances or if there was a suggestion of negligence, deaths which occurred in circumstances the continuance of which or possible recurrence of which were prejudicial to the health and safety of the public and also when any desire had been expressed that a public inquiry should be held into the circumstances of the death. This last category allowed for the wishes of the relatives of the deceased to be taken into consideration. ... When the death was reported to the Crown Agent, the Lord Advocate (in practice usually Crown counsel) considered whether or not an inquiry was to be held and directed accordingly."

[98] The 1895 Act and the 1906 Act were both repealed in toto by the 1976 Act.

 

The Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 (c.14) (as amended) ("the 1976 Act") [6/3]

[99] The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 came into force on 1 March 1977 and now contains the current statutory provisions relating to fatal accident inquiries in Scotland

[100] The 1976 Act introduced a number of changes, one of the most significant of which was that it effectively abolished juries - as outlined in the Stair Encyclopaedia (at paragraph 458 et seq).

[101] In general terms the 1976 Act now provides for the holding of two types of inquiry, mandatory and discretionary.

[102] Provision is made for a mandatory inquiry in the case of a death (1) apparently resulting from an accident in Scotland sustained at work, or (2) occurring during the time in which the person who died was in legal custody.

[103] The mandatory provisions may however be waived where the Lord Advocate is satisfied that the circumstances of the death have been sufficiently established in the course of criminal proceedings against any person in respect of the death or any accident from which the death resulted.

[104] Apart from the instances in which an inquiry is mandatory, the decision to hold a public inquiry is at the discretion of the Lord Advocate.

[105] The changes made by the 1976 Act also include the following:-

·        Firstly, it is now the duty of the procurator fiscal (rather than the sheriff clerk) to intimate that an inquiry is to be held and the time and place fixed for it (section 3(2)(a) of the 1976 Act).

·        Secondly, the inquiry is no longer conducted as nearly as possible in accordance with the ordinary procedure in a trial by jury before the sheriff court (section 5(4) of the 1895 Act). Instead, the rules of evidence, procedure and powers of the sheriff to deal with contempt of court and to enforce the attendance of witnesses are to be as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone (section 4(7) of the 1976 Act).

·        Thirdly, instead of a verdict returned by a jury there is now a determination containing findings by the sheriff (section 6 of the 1976 Act).

[106] It might be helpful to set out the terms of some of the main provisions of the 1976 Act in a little more detail. I would do so as follows.

[107] Section 1 of the 1976 Act provides for the investigation of death and application for public inquiry. It states inter alia:-

"(1) Subject to the provisions of any enactment specified in Schedule 1 to this Act and subsection (2) below, where -

(a) in the case of a death to which this paragraph applies -

(i) it appears that the death has resulted from an accident occurring in Scotland while the person who has died, being an employee, was in the course of his employment or, being an employer or self-employed person, was engaged in his occupation as such; or

(ii) the person who has died was, at the time of his death, in legal custody; or

(b) it appears to the Lord Advocate to be expedient in the public interest in the case of a death to which this paragraph applies that an inquiry under this Act should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern,

the procurator fiscal for the district with which the circumstances of the death appear to be most closely connected shall investigate those circumstances and apply to the sheriff for the holding of an inquiry under this Act into those circumstances.

(2) Paragraph (a) of subsection (1) above applies to a death occurring in Scotland after the commencement of this Act (other than such a death in a case where criminal proceedings have been concluded against any person in respect of the death or any accident from which the death resulted, and the Lord Advocate is satisfied that the circumstances of the death have been sufficiently established in the course of such proceedings), and paragraph (b) of that subsection applies to a death occurring there at any time after the date 3 years before such commencement. ..."

[108] Section 2 of the 1976 Act makes provision for citing witnesses for precognition.

[109] Section 3 makes provision for the holding of the public inquiry. It states inter alia:-

"(1) On an application under section 1 of this Act being made to him, the sheriff shall make an order -

(a) fixing a time and place for the holding by him of an inquiry under this Act (hereafter in this Act referred to as 'the inquiry'), which shall be as soon thereafter as is reasonably practicable in such courthouse or other premises as appear to him to be appropriate, having regard to the apparent circumstances of the death; and

(b) granting warrant to cite witnesses and havers to attend at the inquiry at the instance of the procurator fiscal or of any person who may be entitled by virtue of this Act to appear at the inquiry. ..."

[110] Section 4 of the 1976 Act makes provision for the conduct of the inquiry.

[111] Section 4 states inter alia:-

"(1) At the inquiry, it shall be the duty of the procurator fiscal to adduce evidence with regard to the circumstances of the death which is the subject of the inquiry.

(2) The wife or husband, or the nearest known relative, and, 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, the employer, if any, of the person whose death is the subject of the inquiry, an inspector appointed under section 19 of the Health and Safety at Work etc. Act 1974 and any other person who the sheriff is satisfied has an interest in the inquiry may appear and adduce evidence at the inquiry.

(3) Subject to subsection (4) below (which relates to persons under the age of 17), the inquiry shall be open to the public ...

(6) The sheriff may, either at his own instance or at the request of the procurator fiscal or of any party who may be entitled by virtue of this Act to appear at the inquiry, summon any person having special knowledge and being willing to do so, to act as an assessor at the inquiry.

(7) Subject to the provisions of this Act and any rules made under section 7 of this Act, the rules of evidence, the procedure and the powers of the sheriff to deal with contempt of court and to enforce the attendance of witnesses at the inquiry shall be as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone."

[112] Section 5 relates to criminal proceedings and the compellability of witnesses. [113] Section 5 states:-

"(1) The examination of a witness or haver at the inquiry shall not be a bar to criminal proceedings being taken against him.

(2) No witness at the inquiry shall be compellable to answer any question tending to show that he is guilty of any crime or offence."

[114] Section 6 relates to the sheriff's determination.

[115] Section 6 states:-

"(1) At the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff shall 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.

(2) The sheriff shall be entitled to be satisfied that any circumstances referred to in subsection (1) above have been established by evidence, notwithstanding that that evidence is not corroborated.

(3) The determination of the sheriff shall not be admissible in evidence or be founded on in any judicial proceedings, of whatever nature, arising out of the death or out of any accident from which the death resulted.

(4) On the conclusion of the inquiry -

(a) the sheriff clerk shall send to the Lord Advocate a copy of the determination of the sheriff and, on a request being made to him, send to any Minister or Government Department or to the Health and Safety Commission, a copy of

(i) the application made under section 1 of this Act;

(ii) the transcript of the evidence;

(iii) any report or documentary production used in the inquiry;

(iv) the determination of the sheriff, and

(b) the procurator fiscal shall send 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.

(5) Upon payment of such fee as may be prescribed in rules made under paragraph (i) of section 7(1) of this Act, any person--

(a) may obtain a copy of the determination of the sheriff;

(b) who has an interest in the inquiry may, within such period as may be prescribed in rules made under paragraph (j) of the said section 7(1), obtain a copy of the transcript of the evidence,

from the sheriff clerk."

[116] Section 7 of the 1976 Act makes provision for rules.

[117] Section 7 states:-

"(1) The Lord Advocate may, by rules, provide in relation to inquiries under this Act -

(a) as to the form of any document to be used in or for the purposes of such inquiries;

(b) for the representation, on such conditions as may be specified in the rules, of any person who is entitled by virtue of this Act to appear at the inquiry;

(c) for the authorisation by the sheriff of the taking and holding in safe custody of anything which it may be considered necessary to produce;

(d) for the inspection by the sheriff or any person authorised by him of any land, premises, article, or other thing;

(e) that written statements and reports may, on such conditions as may be specified in the rules, be admissible in lieu of parole evidence;

(f) as to the duties, remuneration and other conditions of appointment of any assessor summoned under section 4 of this Act, and for keeping of lists of persons willing to act as such;

(g) as to intimation of the holding of the inquiry;

(h) as to the payment of fees to solicitors and expenses to witnesses and havers;

(i) as to the payment of a fee by a person obtaining a copy of the determination of the sheriff or a copy of the transcript of the evidence;

(j) as to the period within which a person entitled may obtain a copy of the transcript of the evidence at the inquiry;

(k) as to such other matters relating to procedure as the Lord Advocate thinks appropriate.

(2) The power to make rules conferred by any provision of this Act shall be exercisable by statutory instrument.

(3) Rules made by the Lord Advocate under this Act may contain such incidental, consequential and supplemental provisions as appear to him to be necessary or proper for bringing the rules into operation and giving full effect thereto."

 

The Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977 S.I. 1977 No. 191 (S.29) - [No 6/4 of Process]

[118] In exercise of his powers under the 1976 Act, the Lord Advocate made the Fatal Accidents and Sudden Deaths Inquiry Procedure (Scotland) Rules 1977, which also came into force on 1 March 1977. Those rules can be outlined as follows.

[119] Rules 1 and 2 relate to citation and commencement and interpretation.

[120] Rule 3 relates to the application for the holding of an inquiry. Forms are set out in the Schedule to the rules.

[121] Rule 4 deals with notice of the holding of an inquiry.

[122] Rule 5 relates to the custody of productions.

[123] Rule 6 relates to inspection by the sheriff and warrant to inspect.

[124] Rule 7 relates to "representation" and provides:-

"(1) The procurator fiscal may appear on his own behalf at an inquiry or be represented by an assistant or depute procurator fiscal or by Crown Counsel.

(2) Any person entitled to appear at an inquiry in terms of section 4(2) of the (1976) Act may appear on his own behalf or be represented by an advocate or a solicitor or with leave of the sheriff, by any other person."

[125] Rule 8 relates to the citation of witnesses and havers. Forms are provided in the Schedule to the rules.

[126] Rule 9 relates to "adjournment" and provides:-

"The Sheriff may at any time adjourn the inquiry to a time and place specified by him at the time of adjournment."

[127] Rule 10 makes provision for "written statements".

[128] Rule 11 relates to the "sheriff's determination" and provides:-

"(1) The sheriff's determination shall be in writing and shall be signed by him.

(2) The sheriff's determination shall, except in the circumstances specified in paragraph (3) of this rule, be read out by him in public.

(3) Where the Sheriff requires time to prepare his determination and considers that in the circumstances it is not reasonable to fix an adjourned sitting of the inquiry for the sole purpose of reading out the determination, the sheriff shall not be required to read out the determination, but the sheriff clerk shall send free of charge a copy of the determination to the procurator fiscal and to any person who appeared or was represented at the inquiry and shall allow any person to inspect a copy of the determination at the sheriff clerk's office free of charge during the period of three months after the date when the determination was made."

[129] Rule 12 relates to "assessors" and provides:-

"(1) A request to the sheriff to summons a person to act as an assessor in terms of section 4(6) of the Act shall be made by written motion lodged with the sheriff clerk not less than seven days before the date of the inquiry.

(2) The appointment of an assessor shall not affect the admissibility of expert evidence in the inquiry."

[130] Rule 13 relates to the "recording of evidence" and provides inter alia that:-

"Evidence given in an inquiry shall be recorded in the same manner as evidence given in an ordinary civil cause in the sheriff court: ..."

[131] Rule 14 relates to the time limit for making application for a copy of the transcript of the evidence - "within a period of three months after the date when the sheriff's determination was made".

[132] Rule 15 relates to fees for obtaining a copy of the determination or of a transcript of the evidence. Inter alia, reference is made to "such fees as is payable to sheriff clerks for copying documents relating to civil proceedings in the sheriff court".

[133] Rule 16 makes provision for the service of documents. Where a document is issued by the procurator fiscal it may be served by a police officer.

[134] Rule 17 makes provision for a dispensing power of the sheriff.

 

Scotland Act 1988 (c.46) section 48 [No. 6/5 of Process]

[135] Section 48(5) of the Scotland Act 1988 provides that:-

"Any decision of the Lord Advocate in his capacity as head of the system of criminal prosecutions and investigation of deaths in Scotland shall continue to be taken by him independently of any other person."

 

The Transfer of Functions (Lord Advocate and Secretary of State) Order 1999 (S.I. 1999 No. 678) [No 6/21 of Process]

[136] The Transfer of Functions (Lord Advocate and Secretary of State) Order 1999 (S.I. 1999 No. 678) came into force on 19 May 1999.

[137] It provided that "The functions of the Lord Advocate under the enactments specified in the Schedule to this Order are hereby transferred to the Secretary of State"

[138] The Schedule includes "Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (c. 14), section 7".

[139] Against that background, I turn to summarise and consider the submissions for the Petitioner and the Interested Parties.

 

The Submissions for the Petitioner

[140] In developing his argument, counsel for the petitioner focussed on the question of the competency of the sheriff's award.

[141] The Petitioner did not challenge the exercise of the sheriff's discretion (assuming any award is competent).

[142] I was referred to the Written Submissions for the Petitioner and to the Supplementary Written Submissions for the Petitioner (Nos. 9 and 11 of Process).

[143] I was also referred to the pleadings.

[144] The only factual issue which arose concerned page 9 of the Sheriff's Note (No. 7/3) where it was suggested that "Miss Burgess wrote to the Lord Advocate suggesting that no inquiry was necessary but received no reply". In fact a reply was received from the Depute Crown Agent dated 29 April 2004. The letter from Miss Burgess is No. 7/5 of process and the reply from the Deputy Crown Agent is No. 7/4.

[145] For ease of reference, the Petitioner's submissions are summarised below under the following headings:-

1. The history of the legislation.

2. Prior authority on fatal accident inquiry expenses.

3. Parliamentary material.

4. Significance of Sui Generis.

5. Basis of sheriff's decision.

6. The proper approach to statutory interpretation and the distinction.

between judicial and administrative proceedings.

7. Role of the Lord Advocate acting in the public interest.

8. Human Rights.

9. The case of Stankiewicz v Poland.

 

1. The history of the legislation

[146] The history of the legislation relating to fatal accident inquiries, from 1895 onwards, was outlined by the Petitioner as follows.

 

The 1895 Act

[147] In relation to the Fatal Accidents Inquiry (Scotland) Act 1895 ("the 1895 Act") [No 6/1 of Process] the most salient features were:-

·        A fatal accident inquiry was mandatory in respect of industrial accidents (sections 3 and 4).

·        There was power to have it held by another person - who had the same powers as the Sheriff under this Act (section 4(3)). There was no scope for inherent common law powers being carried over.

·        The statute drew from both civil and criminal - consistent with it being sui generis (section 4(6) & (10)). Procedure was to follow "ordinary procedure in trial by jury" (section 5(4)). Witness expenses were as per the criminal scale (section 5(6)).

·        The form of verdict was prescribed with no provision for expenses (section 4(7)) and it was to be copied to Crown Agent (section 5(5)).

·        Jury costs were to be met from the public purse (section 4(9) and witness expenses were as per the criminal scale (section 5(6)).

 

The 1906 Act
[148]
In relation to the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1906 ("the 1906 Act") [No 6/2 of Process] the most salient features were:-

·        The 1906 Act amended section 4(7) to expand the requirements to be covered in the verdict - but still with no mention of expenses.

·        It also conferred a discretionary power in the Lord Advocate where expedient in the public interest to order inquiry into sudden or suspicious death.

 

The 1976 Act

[149] In relation to the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ("the 1976 Act") [No 6/3 of Process] the most salient features were:-

·        The 1976 Act maintains the emphasis on mandatory industrial fatal accident inquiries (subject to limited exception) and discretionary inquiries (in public interest) in other cases.

·        It is the duty of the procurator fiscal to lead evidence (section 4(1)). He is not conducting a lis.

·        Procedure is as per the ordinary cause (section 4(7)).

·        There is power to deal with contempt (section 4(7)).

·        The final decision is called a "determination" covering prescribed matters (section 6(1)) and it has to be sent to Crown Agent. (section 6(4)).

·        The Lord Advocate was given power to prescribe rules concerning payment of solicitors and witnesses and havers (section 7(1)(h)).

[150] Counsel for the Petitioner submitted that the structure of the 1976 Act is one silent on legal expenses consistent with a process in the public interest where the public purse will bear the costs incurred by the procurator fiscal and parties will bear their own expenses.

[151] There were Rules made by the Lord Advocate in 1977 [No 6/4 of Process] but they too are silent of the question of expenses.

[152] In relation to inherent powers, counsel for the Petitioner submitted that contempt of court was one of the inherent powers of a court. The inclusion of a specific power to deal with contempt in fatal accident inquiries would have been unnecessary if all the inherent powers (expenses as well) were already included by implication.

[153] Counsel for the Petitioner also referred to the Merchant Shipping legislation as providing a parallel situation - where provision is expressly made for expenses.

 

2. Prior authority on fatal accident inquiry expenses

[154] As outlined above, the statutory procedure for fatal accident inquiries dates back to 1895.

[155] Despite that lapse of time, no textbook ancient or modern supports an award of expenses in a fatal accident inquiry.

[156] So far as the researches of counsel disclose, most text books do not even mention expenses in relation to fatal accident inquiries. Reference was made to Green's Encyclopaedia (1926) [No 6/6 of process] and Dobie on Sheriff Court Practice (1952) [6/7]. The position in relation to fatal accident inquiries was contrasted with Board of Trade Inquiries - as outlined in Dobie at page 457. Reference was also made to the Stair Encyclopaedia, Criminal Law Reissue [6/9].

[157] Those texts that do mention expenses are adverse to Sheriff Cowan's conclusion. Reference was made to Macphail on Sheriff Court Practice (2nd ed.) 27.23 [6/8] and to Carmichael on Sudden Deaths and Fatal Accident Inquiries (2nd ed. 1993) 10.40 and 11.20 [6/27].

[158] Sheriff Cowan referred to two Aberdeen fatal accident inquiries - "Brent Spar" and "Cormorant Alpha" - but they are adverse to her conclusion on expenses.

[159] In Brent Spar, Sheriff Risk commented (at page 74 of No. 6/24 of Process) that "Parliament has not seen fit to confer upon the Sheriff any power to make an award of expenses". In effect Sheriff Cowan and the Interested Parties now say that Sheriff Jessop's comments in Cormorant Alpha (at pages 74-75 of No. 6/25 of Process) are also wrong because (they say) the sheriff retains an inherent power on expenses.

[160] In Cormorant Alpha, Sheriff Jessop said (in paragraph 41.2) inter alia:-

"... Sheriff Risk (in Brent Spar)... came to the conclusion that no provision was made in the Fatal Accident Inquiry provisions for payment of expenses. After giving the matter serious consideration I have regretfully come to the same view ..."

[161] Sheriff Jessop continued (in paragraph 41.2):-

"... whilst bound by the legislation dealing with Fatal Accident Inquiries, I consider that Inquiries of this nature merit a reconsideration of the granting of Legal Aid and/or reserving a right to the presiding judge to award whole or part expenses to those with limited means but with a real interest in such an Inquiry".

[162] Reference was also made to the fatal accident inquiry into the death of Robert Keggans. The article from the Herald and related documents are contained in No. 6/23 of Process. The sheriff's determination is No. 6/28 of Process. The Petitioner argued that Sheriff Cowan read too much into that case. The copy interlocutor of Lord Hamilton dated 12 June 1997 [in Production 6/23] indicated that on the unopposed motion of the Petitioners, and in respect that the Answers lodged on behalf of Atlas Hydraulics Limited had been withdrawn, Lord Hamilton reduced the interlocutor of Temporary Sheriff Forbes dated 1 April 1996 and found no expenses due to or by any party. The very diligent researches of counsel did not manage to track down the document relating to expenses which is referred to by the sheriff in Production 6/28.

[163] The petitioner submitted that it was incompetent to make an award in the Keggans case because it was not in the public interest to make any award of expenses in a fatal accident inquiry.

[164] Properly understood, submitted counsel for the Petitioner, there is no precedent for this award of expenses in 110 years of fatal accident inquiries.

 

3. Parliamentary material

[165] Reference was also made to Parliamentary Debates and in particular for 18 March 1976, at columns 99 to 103 [No 6/11 of process]. The retention of mandatory fatal accident inquiries reflected an acknowledgement that there may be unnecessary fatal accident inquiries but still in the public interest.

[166] Reference was also made to 16 March 1976, at columns 3 and 26 to 33 [6/11]. Even though it was known that this could result in unnecessary inquiries it was thought better that the process be mandatory lest a few slip through. There was a quantifiable saving even allowing for unnecessary inquiries (column 32) and there was no support there for third party costs.

 

4. Sui Generis
[167]
In determining the appropriate rules of procedure and evidence it is necessary, submitted the Petitioner, to have regard to the purpose of the legislation and that purpose should be promoted, not thwarted.

[168] Reference was made to W v Kennedy 1988 SC 82 [6/16] and in particular pages 84 to 86.

[169] Counsel for the Petitioner also referred to Section 7(1)(h) of the 1976 Act [6/4] as reflecting the fact that these are proceedings sui generis.

 

5. Basis of sheriff's decision

[170] In relation to the sheriff's decision [No 7/3 of Process] counsel for the Petitioner made the following submissions:-

1. The main thrust of the sheriff's decision (which is to be found on page 4) is that the sheriff has power unless expressly excluded by statute.

2. The sheriff refers to the possibility of an assessor being appointed - but that, submitted the Petitioner, does not take the matter anywhere.

3. The reference to Dobie (on page 4 of the Sheriff's decision - which should be a reference to Dobie at page 310) concerns cases on the judicial / administrative dichotomy. (No 6/29 of process)

4. The only authority that the sheriff cites is one of that list, namely, Dumbartonshire County Council v Clydebank Commissioners, 1901 4F 111 [No 7/12].

5. The sheriff also refers to Milton v Argyll and Clyde Health Board which is described as unreported. It is however reported at 1997 SLT 565 [No 7/8 of Process]

6. Implicitly the Sheriff is applying Dobie at page 310 and proceeding on the premise that unless expressly excluded by statute the sheriff has in all situations an inherent power to award expenses which (a) in ordinary judicial proceedings is unqualified and (b) in administrative proceedings is restricted to those situations in which a party has been vexatious.

7. It would follow from that that the sheriff has to determine into which category a fatal accident inquiry falls and she proceeds tacitly on the assumption that a fatal accident inquiry falls in to category (b). The sheriff says "Even if they are more akin to administrative proceedings..." (at page 4 of 7/3).

8. However, submitted the Petitioner, things have moved on since Dobie and it is now clear that:-

(1) It can be difficult to decide whether any particular statutory application should properly be characterised as (a) ordinary judicial or (b) administrative proceedings.

(2) The more productive question should be whether there is an exclusion expressly or by necessary implication.

(3) This calls for interpretation of the specific statutory provision in question in light of the purpose of the legislation. In the present case it was submitted that the relevant statutory provision is section 4(7) of the 1976 Act [No 6/3 of Process], and

(4) Cases on other statutory provisions, such as the line referred to in Dobie are of limited significance.

[171] In essence, the Petitioner submitted that the Sheriff erred by failing to consider the proper interpretation of the 1976 Act.

[172] In summary, the Petitioner's submissions might be outlined as follows:-

(1) Macphail on Sheriff Court Practice [6/8], para. 27.23, was correct: No expenses should be awarded in a fatal accident inquiry.

(2) Keggans apart (and the award was reduced on Judicial Review - without argument), there is no precedent for an award in a fatal accident inquiry and that despite a 110 year history.

(3) Texts on the subject are, for the most part, silent on even the possibility of such an award. That includes even Carmichael (3rd ed.).

(4) Those texts that do raise the point are adverse: Macphail and Carmichael (2nd ed.).

(5) In any event, the question is whether the power to award expenses (otherwise inherent in Sheriff Court proceedings) has been excluded expressly or by necessary implication. It has not been excluded expressly, so it is appropriate to look at necessary implication.

(6) The Petitioner's submission is that it is excluded by necessary implication.

(7) That is clearly consistent with the absence of precedent for such an award over such a long period.

(8) The statute (the 1976 Act) sets up a self-contained procedure making express provision for, among other things, such inherent powers as are considered relevant and necessary for a satisfactory public inquiry.

(9) The natural implication is that associated matters (i.e. expenses) which are omitted are not intended to be conferred.

(10) The proceedings are sui generis, which means that one must look to the purpose and whether a power to award expenses would promote or thwart the purpose.

(11) The primary purpose is to promote safety in the public interest by having a public inquiry into deaths. Such is the premium attached to this purpose that a public inquiry remains mandatory in employment related accidents lest a few which on the face of it seem straightforward but are in fact significant slip through. Accordingly, the Act envisages that there may be inquiries which are "unnecessary" in the end result and yet for the greater public good requires them to be held.

(12) That is inconsistent with exposure to a finding of expenses in what may be judged to have been "unnecessary" procedure. In other words, that tends to suggest that there may be situations where procedures are unnecessary - yet there is no award of expenses.

(13) The absence of a power to award expenses is consistent with the traditional rule in crime that where the Lord Advocate acts in the public interest there is no liability in expenses (to or by) at first instance.

(14) There is now recognised to be a secondary Human Rights benefit in this procedure - it facilitates examination in public of suspicious deaths, consistent with the State's positive obligations under Article 2.

(15) Nothing should be done to thwart those two objectives (outlined in paragraphs 11 and 14 hereof), hence while maintaining the all important right to silence in relation to incrimination, the legislation says that the determination is not to be admissible in any other proceedings. That is to encourage fullest participation in the inquiry.

(16) An award of expenses, if competent, could as readily be made against a participating interested party (as was done in Keggans) but the threat of that is likely to deter their participation.

(17) This does not produce any anomalous outcome:-

(i) The proceedings are not adversarial;

(ii) Interested party representation is optional;

(iii) The sheriff can control vexatious conduct, for example, by curtailing questioning or refusing an adjournment; and

(iv) The procedure results in a specific outcome, namely, a determination (in terms of section 6 of the 1976 Act) with no provision for expenses.

 

6. Proper approach to statutory interpretation and the judicial/

administrative dichotomy

[173] Counsel for the Petitioner outlined what was described as the proper approach to the judicial/administrative dichotomy.

[174] He took as his starting point the sheriff's suggestion that there is an inherent power to award expenses. Reference was made to The Society of Accountants in Edinburgh v The Lord Advocate 1924 SLT 194 [6/12] (a case where proceedings were held to be judicial) and to Arcari v The County Council of the County of Dumbarton 1948 SC 62 [6/15] particularly at pages 66 and 67.

[175] However, that suggestion required to be seen in the context of contempt of court and other inherent powers.

[176] Counsel for the Petitioner made the following points:-

(1) The power to award expenses is only one of a number of inherent powers. (Macphail [6/19], paras. 2.05 and 2.06 -7.)

(2) Comparing that list one finds that this legislation has dealt with these matters expressly with the one conspicuous exception, namely, expenses.

(3) The conclusion is that we are dealing with self-contained sui generis proceedings in which so far as relevant what might otherwise have been inherent powers are conferred expressly.

(4) The omission (expenses) accordingly is not conferred on the sheriff, that being contrary to the purpose of the legislation.

(5) There are no adversarial proceedings. No one is a "party". There are interested parties who may participate in the fatal accident inquiry at their own option (and hence at their own cost). The end product (the determination) is restricted to certain prescribed matters (not including expenses). It is to be forwarded to certain prescribed persons and it is of limited effect in law. It is not to be used in other civil or criminal proceedings. These are self-contained proceedings for a specific purpose - to investigate deaths and derive lessons, all in the public interest. A power to award expenses is not a necessary component of such a system and indeed may militate against the purpose by deterring public participation.

(6) The powers that are given (and they are given expressly) are those that are essential to the running of a productive public inquiry. The power to award expenses is not included because it is not essential.

[177] The question posed was "Looking to the legislation as a whole has the inherent power to award expenses been excluded by necessary implication?"

[178] The source of this formulation of the question was to be found in the following:-

(1) Historically the dichotomy between (a) judicial and (b) administrative is important in two contexts, namely:- (i) expenses and (ii) whether or not there is a right of appeal from the decision of the Sheriff. Jamieson on Summary Applications [6/10] at paragraph 37.02.

(2) This is a dichotomy in "Summary Applications". In the present petition, we are dealing with proceedings to which section 4(7) of the 1976 Act applies. Accordingly, this whole tract of authority, on which the Sheriff relies, is irrelevant.

(3) In any event, even if this is not correct, it was submitted that it is wrong simply to attempt to characterise the proceedings as (a) judicial and (b) administrative and to assume thereby that certain consequences follow. One must construe the legislation in question.

(4) The appeal line of this rule has been the subject of close scrutiny recently and has shown that there is no substitute for construing the legislation by asking whether the right of appeal has been excluded expressly or by necessary implication. Reference was made to Rodenhurst v Chief Constable of Grampian Police 1992 SC 1 [6/17] particularly at pages 6, 9, and 10. Reference was also made to East Kilbride District Council v King 1996 SLT 30 [6/18] where the Lord President (Hope) did not think it was necessary to describe the function which the sheriff was exercising as administrative rather than judicial. The question is one of interpretation of the specific statute. Particular reference was made to the Lord President at pages 33, 34 and 35 and Lord Clyde at page 36.

[179] In relation to expenses, reference was made to Milton v Argyll and Clyde Health Board 1997 SLT 565 [7/8]. That case concerned the Nursing Homes Registration (Scotland) Act 1938, section 3(3) - a more limited provision than the 1976 Act. The decision also proceeds on a concession (page 567F-H). Any error on the part of the Sheriff was intra vires. (568C-D). Comments on criterion were obiter. If it was otherwise competent to make an award in "administrative cases" the criterion is vexatiousness.

[180] There are cases where expenses have been awarded in an "administrative" context for vexatious conduct: Reference was made to The County Council of Dumbartonshire v The Commissioners of the Burgh of Clydebank (1901) 4F 112 [7/12]. That case concerned the Burgh Police (Scotland) Act 1892, sections 11 and 13 - more limited provisions. Lord McLaren commented (at page 122) on the need for statutory interpretation.

[181] Reference was also made to Liddall Parish Council of Ballingry 1908 SC 1082 [7/11] (no award); Magistrates of Tobermory v Capaldi 1938 SLT (Sh Ct) 38 [7/9] (no award); and Butler v Glasgow Corporation 1930 Sh Ct Rep 72 [7/10] (no award).

 

7. Role of Lord Advocate

[182] Counsel for the Petitioner noted that the Scotland Act 1988 (c.46) brackets both investigation of crime and deaths together. Reference was made to section 48(5) [6/5].

[183] He submitted that the authorities relied upon by the respondents (that stress that the Lord Advocate is now a Scottish Minister) do not affect the significance of 48(5). Reference was made HMA v Scottish Media Newspapers Ltd 2000 SLT 331 [7/15] and Sinclair v HMA 2005 SC 28 [7/14].

[184] The key point that emerges from section 48(5), according to the petitioner, is that crime and the investigation of deaths share the common characteristic that these are functions that the Lord Advocate discharges in the public interest.

[185] In criminal cases public interest warrants no expenses on either side in relation to proceedings at first instance. Reference was made to HMA v Aldred 1922 JC 13 [7/6] and Gallacher Petitioner 1990 JC 345 [7/7].

[186] The only assumption that can be made is that fatal accident inquiries are the same - submitted the petitioner.

 

8. Human Rights

[187] Counsel for the petitioner also submitted that Article 6 does not entail that there must be a finding of expenses. Reference was made to Attorney General for Gibraltar v Shimidzu [2005]1 WLP 3335, [2005] UKPC 26 [6/31].

[188] This has reinforced the need for mandatory fatal accident inquiries, save in circumstances where the circumstances have already been sufficiently explored in a public hearing. Reference was made to Oneryildiz v Turkey, ECtHR (Grand Chamber) 30 November 2004 [7/16] (at 9, 10, 18, 70, 89, 94-96), R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 (HL) [7/18], and R (Khan) v Secretary of State for Health [2003] 4 All ER 1239 [7/20]. In Amin, Lord Hope's summary has no mention of expenses.

[189] An award of expenses would act as a disincentive and be contrary to this thrust.

[190] The petitioner posed the question, "What if, as in Keggans, a family had the threat of expenses hanging over them?" Reference was also made to McArthur & Others v Lord Advocate and the Scottish Ministers (Lord Glennie, 9 December 2005, [2005] CSOH 1650) [6/13].

[191] In the circumstances, and in light of those authorities, counsel for the petitioner invited me to reduce the Sheriff's award of expenses. He also responded to the interested parties.

 

9. The case of Stankiewicz v Poland

[192] While the case was at avizandum, the Interested Parties lodged further written submissions (No. 12 of Process) in relation to the case of Stankiewicz v Poland ECtHR, App. No. 46917/99, Judgment dated 6 April 2006 (No. 7/37 of Process).

[193] The Petitioner responded by written submissions (No. 11 of Process) as follows:-

What the case of Stankiewicz decided

"2. The decision concerns civil proceedings for unjustified enrichment brought by a Polish public prosecutor (acting on behalf of the State Treasury) against the applicants, Polish nationals who had bought real property at auction from a public authority. The public prosecutor claimed that the property had been sold at an undervalue and sued them for the difference. The applicants successfully defended the action, which was dismissed. The court of first instance awarded the applicants their litigation costs (see para. 19) but on appeal by the prosecutor the court refused to award them their legal costs (see para. 26). That decision appears to have been based upon the Article 106 of the Polish Code of Civil Procedure. Ordinarily expenses went with success but Article 106 conferred an exemption on the public prosecutor from liability in respect of the costs of civil litigation (see paras. 26 and 33).

3. Article 106 is quoted by the European Court of Human Rights at paragraph 33 of the judgment and at paragraphs 34-37 the Court summarises Polish case-law on the interpretation of that exemption. Looking to that summary it is doubtful whether, as a matter of domestic law, the exemption was truly applicable because it does not seem to apply where the prosecutor initiates a civil action in the financial interests of the State Treasury. None the less, the domestic appeal court held the exemption applicable and the appellants complained that that was a breach of Article 6(1). They argued that the exemption enjoyed by the prosecutor was unfair (para. 54) and discriminated against them as private individuals (para. 56).

4. The European Court of Human Rights held that in all the circumstances there had been a breach of Article 6(1) of the Convention.

5. The one authority cited was Robins v United Kingdom (judgment of 23 September 1997, Reports of Judgments and Decisions 1997‑V, p. 1809). Article 6 applies to proceedings in which 'civil rights and obligations' are determined. The applicants in that case had been involved in civil litigation with neighbours and complained of undue delay (contrary to Article 6) in the determination of their liability in expenses. The European Court held that the duties under Article 6 relating to proceedings for the determination of civil rights and obligations related not only to the determination of the merits of the action but also to the ancillary questions relating to costs (see paras 28 and 29 in Robins).

6. Accordingly, it follows that there may be situations in which issues linked to the determination of litigation costs can be relevant to the assessment of the question whether the proceedings in a civil case seen as a whole have complied with the requirements of Article 6(1): see Stankiewicz para. 60. The substantive proceedings in Stankiewicz were unquestionably proceedings relating to the determination of civil rights and therefore the denial of costs formed part of the whole proceedings to which Article 6 undoubtedly applied.

7. It is difficult to précis the Court's reasons for concluding that there was a breach of Article 6(1) in 'the circumstances of the case as a whole' (see paragraph 76). That is simply the conclusion reached after the citation (from paragraph 61) of a number of fact specific considerations, not the least being a doubt whether the domestic appellate court had correctly applied the Article 106 exemption.

The relevance of the Stankiewicz decision

8. Against this background, the Petitioner submits that the case of Stankiewicz does not offer any assistance on the matters for decision in this petition. In particular:-

(i) Unlike the proceedings in question in Stankiewicz (and for that matter Robins) proceedings before a Fatal Accident Inquiry are not themselves civil or criminal proceedings falling within the ambit of Article 6(1) of the Convention. (This point was recognised as a generality by the Interested Parties in their Supplementary Note of Argument (February 2006) at para. 1.25, where they stated: '[I]t is clear that in normal circumstances an FAI would not engage the rights in Article 6 ECHR - being neither a process for the determination of civil rights and obligations or of a criminal charge'). Accordingly, Article 6(1) of the Convention does not apply and the decision is not in point.

(ii) Even if Article 6(1) were applicable, it does not automatically follow that this Court must apply Stankiewicz. In terms of section 2(1) of the Human Rights Act 1998, this Court has to consider relevant Strasbourg case law but the House of Lords has stressed that what courts in the United Kingdom require to follow is 'any clear and constant jurisprudence of the Strasbourg court'. (R (Alconbury Ltd) v Environment Secretary [2003] 2 AC 295 per Lord Slynn of Hadley at para. 26, p313C; quoted with approval in R (Ullah) v Special Adjudicator [2004] 2 AC 323 per Lord Bingham of Cornhill at para. 20, p350A-B.) The case of Stankiewicz is not part of a clear and constant jurisprudence applying to cases of the present type. It is clearly a case decided on its own particular facts and circumstances, and not one that establishes or evidences a general principle that is applicable to the present petition.

(iii) In any event, Stankiewicz is distinguishable. There are references throughout that case to the principle of equality between parties to proceedings (see para. 58), which was contravened in that case by the unilateral exemption conferred on the public prosecutor. By contrast, in Fatal Accident proceedings there is no discriminatory rule in favour of the Crown. On the petitioner's argument all parties are treated equally because no award of expenses is competent or appropriate in such inquiries against any party, and not merely the state. For the reasons already advanced there are sound policy reasons why FAI's, held in the public interest to investigate suspicious deaths, should be the subject of that even-handed rule ensuring that no one is deterred from raising issues of potential public interest."

[194] I turn now to the submissions for the Interested Parties.

 

The Submissions for the Interested Parties

[195] The Written Note of Argument for the Interested Parties and the Supplementary Note of Argument are Nos. 10 and 10A of Process respectively.

[196] The Supplementary Submissions in relation to the case of Stankiewicz v Poland are No. 12 of Process.

[197] I gratefully refer to those lengthy written submissions for their whole terms brevitatis causa.

[198] It may be helpful, however, to try to summarise those passages which counsel for the Interested Parties highlighted during the course of his oral argument.

[199] I will do so under the following headings:-

1. Introduction.

2. Expenses and the FAI.

3. The holding of an FAI.

4. The argument from lack of precedent.

5. Summary on competency of expenses award.

6. Response to the Petitioner's case in reply.

7. Supplementary Submissions on the case of Stankiewicz v Poland.

 

1. Introduction

The petitioner's case

"1.1 The petitioner is committed to establishing the proposition that it is in no circumstances ever open to the Sheriff to award expenses in the course of an FAI. ...

1.2 ... Senior counsel for the petitioner stated in oral submissions that the petitioner's challenge is to: "The whole idea of expenses being awarded in FAIs against anybody, even if the conduct of any of the parties in the Inquiry has been vexatious."

1.3 By the same token the petitioner is opposed to the whole idea of expenses being awarded in FAIs in favour of any party, even in a case where the overall interests of justice clearly favour such an award. The petitioner's position then is a stark one to the following effect: that there is a hard and unyielding rule, admitting of no flexibility no matter the circumstances of any individual case, to the effect that expenses simply cannot be awarded by the sheriff in relation to participation in FAIs.

The interested parties' case

1.4 In order to counter the petitioner's proposition that it is in all circumstances incompetent or ultra vires for the Sheriff to make an expenses award in an FAI it is necessary for the interested parties simply to show that there are circumstances where such an award might be competent. It is not necessary for them to show that they fall within those circumstances in which an expenses award might be competent, since the petitioner does not challenge the award actually made in their case.

1.5 In fact the interested parties can go further than that and they set out circumstances where an award of expenses by the sheriff in an FAI might indeed be required of him or her as a matter of law.

 

2. Expenses and the FAI
2.1. The petitioner accepts that there is no express rule to the effect that the sheriff has no power to make any award of expenses in an FAI. He (now she) relies, instead, on the claim that having regard to the overall purpose of the 1976 Act - which is to ensure a public airing of the facts relating to fatal accidents at work, in legal custody, or in otherwise sudden, suspicious or unexplained circumstances such as to give rise to serious public concern - that it must of necessity be implied that there can be no power on the part of the sheriff ever to award any part of their expenses.

2.2 This necessary implication claim rests on the simple assertion by the petitioner - for which no proof has ever been offered - that if there were even the possibility (however remote) of a party to an FAI having an award of expenses being made against them, then FAIs simply could not fulfil their purpose of ensuring a full airing of all the relevant facts in any death and that this would be contrary to the public interest.

2.3 Apart from being unsupported as a bare factual assertion, this claim is in any event wholly counter-intuitive. The opposite claim is just as easily made and much more likely to be true: that without a power in an appropriate case to award expenses in favour of a party seeking to participate in a public inquiry, the FAI's purpose may not be achieved since persons who cannot independently afford legal representation at the inquiry (notably the family of the deceased who will have a particularly strong interest in seeing that all the facts - however inconvenient as they may be for vested interests - are publicly aired) will be deterred from coming to the Inquiry to put their case and it is this that would be contrary to the public interest (and the purpose of the 1976 Act).

2.4 In this regard it is instructive to note that under section 40 of the Inquiries Act 2005 (the statute which gives power to the Scottish Ministers among others to set up specific inquiries into matters of 'public concern') the chairman of such an inquiry is given the power to award reasonable amounts to any person who, in the opinion of the chairman, has such a particular interest in the proceedings or outcome of the inquiry as to justify it, 'in respect of expenses properly incurred, or to be incurred, in attending, or otherwise in relation to, the inquiry'. [Production 7/30]. The power to make such an award 'includes power, where the chairman considers it appropriate, to award amounts in respect of legal representation.' This is not a particular innovation. (See the provisions of section 3(6) of the Notice of Accidents Act 1894 which Act was repealed in whole by section 68(1) of and Schedule 4 Part I to the Transport and Works Act 1992) [Production 7/31] ...

 

Section 4(7) of the 1976 Act
2.5 The petitioner points to the terms of Section 4(7) of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 ...

2.6 In order to make good his claim that the sheriff's power to award expenses is excluded by the 1976 Act, the petitioner requires to rely upon the concept of it being a 'necessary implication' of the Act as a whole - and of section 4(7) in particular - that an expenses award is incompetent. This is a very high test to meet. What is being claimed is that the inclusion of the power to award expenses in FAI would render the provisions of the 1976 Act meaningless. In Lord Advocate v Dumbarton District Council. 1990 SC(HL) 1 Lord Keith of Kinkel at 16 quoted with approval the following passage taken from Gorton Local Board v Prison Commissioners (Note) [1904] 2 K.B. 165 per Day J. at 167: 'In the absence of express words the Crown is not to be bound, nor is the Crown to be affected except by necessary implication. There are many cases in which such implication does necessarily arise, because otherwise the legislation would be unmeaning. That is what I understand by necessary implication.'

2.7 Unless he (the petitioner's counsel) can show that his conclusion - of there being in no circumstances even a residual power to award expenses - follows inexorably from the wording of the statute, his submission on the exclusion of a power to award expenses by necessary implication fails.

2.8 The petitioner's counsel effectively sought to draw the following propositions from section 4(7) of the 1976 Act:

(i) that in presiding over and conducting an FAI the sheriff only has the two powers enumerated: namely power to deal with contempt of court and power to enforce the attendance of witnesses at the inquiry;

(ii) that all other powers which might be inherent in the office of sheriff - whether exercising a judicial or an administrative function - have been stripped from him or her by the terms of Section 4(7), on the basis of the principle expressio unius est exclusio alterius;

(iii) that it is necessary to read Section 4(7) in this narrow way because to leave the sheriff with any inherent powers (other than to deal with contempt of court or and enforce the attendance of witnesses) would be to thwart the purpose of the FAI legislation and make it unworkable in practice.

2.9 The interested parties submit that this is, however, wholly to misread the purpose and effect of section 4(7) of the 1976 Act. In the first place, it is clear that in conducting FAIs the Sheriff's powers are not limited to the power anent contempt of court and attendance of witnesses. He must, for example, have the power to administer an oath or affirmation to any witness giving oral evidence to the inquiry, although this is nowhere specified in the 1976 Act. He presumably, too, has power to order on the application of a party to the inquiry the production of all books, papers, records and documents which are set out in a specification as relevant to the inquiry, but this is nowhere made explicit. He must also have power to control the conduct of proceedings before him - for example by disallowing a line of questioning, or by granting or refusing requested adjournments. In summary, the sheriff must have power - by virtue of his inherent jurisdiction - to make all such orders as are necessary for "supporting his jurisdiction and maintaining the authority of the court" and to suppress any abuse of process (see Clark v Fennoscandia, 2005 SLT 511, IH), or the attempted thwarting of its procedures (for example by unconscionable delay in pursuing matter: see Newman Shopfitters Ltd v MJ Gleeson Group plc, 2003 SLT (Sh.Ct.) 83 and McKie v MacRae, 2006 SLT 43, OH per Lord Glennie). In so acting the sheriff is exercising: 'a general power to control its own procedure so as to prevent it being used to achieve injustice. Such a power is inherent in the constitutional function of a court of justice.' (In the words of Lord Diplock in Bremer Vulkan Schiffbau [1981] AC 909 at 977 quoted in Taylor v Lawrence [2003] QB 528 per Lord Woolf at 546 [Interested Parties' Production 7/26]).

2.10 There is no doubt, too, that a sheriff has an inherent discretionary common law power to make awards of expenses in proceedings before him. (Macphail Sheriff Court Practice at 2.07 [Production 6/19 at page 28]; Dobie on Law and Practice in the Sheriff Courts in Scotland (1952) [Production 6/29 at page 310]. See too: Maclaren Expenses at page 3; Ledgerwood v McKenna (1868) 7 M 261; Rooney v Cormack (1895) 23 R 11; Pollock v Heatley, 1910 SC 469 at 492; McQuater v Fergusson, 1911 SC 640 at 646). The sheriff may exercise this power in every case that comes before him - unless that power is expressly taken away or qualified by statute (Macphail Sheriff Court Practice at 19.03 [Production 6/19 at page 618]) - to determine whether to make an award of expenses and, if making such an award, to determine by whom, on what basis and to what extent expenses are to be paid (Mulholland v Macfarlane's Trustees, 1928 SLT 251; Mitchell v Baird (1902) 4 F 809; Brownlie v Tennant (1855) 17D 422 at 425 per LJ-C Hope at 428-9 per Lord Cowan; Rooney v Cormack (1895) 23 R 11 at 13 per Lord Maclaren; Thomson v Edinburgh Tramways (1901) 3 F 355 at 357 per L-P Balfour). It is on this basis of this inherent power that the sheriff is able to order in FAIs that the expenses of witnesses and havers be met by the party who cites them before the inquiry (Macphail Sheriff Court Practice at 27-23 [Production 6/8 at page 898]) and that the expenses and fees of an assessor appointed to an FAI on the application of a party to the inquiry be met by that party, since these expenses will not be met - as senior counsel for the petitioner has explained - by the Scottish Courts Administration unless the assessor has been appointed by the sheriff ex proprio motu or on the application of the Fiscal.

2.11 The sheriff may also properly use his powers to award (or refuse) expenses to mark its disapproval of the manner in which a party has conducted itself in proceedings before him, for example where the party has acted vexatiously or otherwise in a manner which will (not being so serious as to constitute contempt of court) merit a marking of disapproval and a disciplining by the court. The very existence of the power to award expenses in these circumstances is a useful and necessary sanction which is available to the sheriff to ensure that discipline is maintained in the court and that the conduct of parties in the proceedings before him is consonant with the proper requirements of the administration of justice.

2.12 It is all very well for Macphail to opine that 'an inquiry is not an adversarial process' (Macphail Sheriff Court Practice at 27-23 [Production 6/8 at page 898]) but sometimes inquiries become adversarial, particularly where there are multiple parties and big money at stake. Thus it has been (counsel's) experience (as counsel for the families of the deceased in both the Ocean Odyssey and the Mull of Kintyre Chinook FAIs) that the proceedings can turn adversarial when vested interests - whether of oil companies or of the Government - wish to use the inquiry for the own ends, whether to bring forward and highlight (or indeed seek to suppress) certain evidence.

2.13 Further, although Macphail states that 'no award of expenses should be made against or in favour of any compearing party' (Macphail Sheriff Court Practice at 27-23 [Production 6/8 at page 898]) he does not say that such an award cannot ever be made in any circumstances. It is submitted that it is entirely just, right and proper in circumstances where proceedings have become adversarial under the influence of vested interests that participants who pursue their own agenda at the FAI might run the risk of carrying the extra costs and expenses incurred to other parties as a result. (Magistrates of Tobermory v Capaldi, 1938 SLT (Sh.Ct.) 38 [Production 7/9]; Butler v Glasgow Corporation, 1930 Sh.Ct.Rep 72 [Production 7/10]; Liddell v Ballingry Parish Council, 1908 SC 1082 [Production 7/11]; Dunbartonshire County Council v Clydebank Burgh Commissioners (1901) 4F 112 [Production 7/12].

2.14 Macphail goes on: 'it is thought that to make such an award [of expenses] would be contrary to the public interest and would be susceptible to reduction by judicial review.' (Macphail Sheriff Court Practice at 27-23 [Productions 6/8 at page 898]) But the Lord Advocate is not the final authority on what is or is not in the public interest. What is in the public interest is ultimately a matter for the court (see the authorities mentioned in footnote 15 of No. 10 of Process including Production 7/14). And in any event, it cannot be said ever to be in the public interest for the Crown to pursue and conduct an FAI in an oppressive and vexatious manner. Where this has occurred, it is entirely within the public interest that an award of expenses be made against the Crown at the discretion of the sheriff.

2.15 The fact that Section 4(7) of the 1976 Act mentions the power of contempt of court is significant in showing that when conducting an FAI the sheriff as acting as a court - and it matters not whether or not whether those proceedings are characterized as (quasi-) civil or (quasi-) criminal or in a category of their own (sui generis).

2.16 Consistently with the fact that an FAI is regarded as a species of civil court proceedings, the Scottish Legal Aid Board will grant civil legal aid to any party otherwise falling with the conditions of financial eligibility who can show that he has an interest and entitlement to participate in an FAI and that it is reasonable for him to have separate legal representation at the inquiry. (see Carmichael Fatal Accident Inquiries (3rd edition, 2005) at paragraphs 5-25 to 5-31 [Production 7/29]). In the event that legal aid is granted it is competent for the sheriff at the FAI to hear and decide upon a motion by the legal representative for allowance of an additional fee or a percentage increase under Regulation 5(4) of the Civil Legal Aid (Scotland) (Fees) Regulations 1989 (see Civil Legal Aid (Scotland) (Fees) Regulations 1989 (SI 1989/1490) PH Vol III page G561) which might be obtained from the legal aid board on taxation, notwithstanding that this is also not a power specified in Section 4(7) of the 1976 Act (see Macphail Sheriff Court Practice at 27.23 [Production 6/8 at page 898])"

[200] Having developed his arguments further in paragraphs 2.17 to 2.21 (which I can refer to for their terms), counsel for the Interested Parties continued as follows:-

"2.21 ... Thus even sui generis procedures may be subject to Convention rights scrutiny outwith the corners of their constitutive statutes.

2.22 Against this background it is clear that the petitioner's counsel reading of section 4(7) of the 1976 is entirely misplaced. Instead the situation as properly understood is this:

(i) that in presiding over and conducting an FAI the sheriff retains all the inherent powers associated with a court, including the power to award expenses where appropriate;

(ii) that the two powers set out in section 4(7) are mentioned simply to specify how these two particular powers are to be exercised - as if the sheriff were acting as a ordinary civil court rather than in exercise of any criminal jurisdiction - leaving the existing inherent powers unaffected. The maxim expressio unius est exclusio alterius therefore has no application.

(iii) that it is necessary to read section 4(7) in this broad way because to leave the sheriff without any inherent powers (other than to deal with contempt of court and enforce the attendance of witnesses) would be to thwart the purpose of the FAI legislation and make it unworkable in practice."

 

3. The holding of a fatal accident inquiry

[201] Having outlined possible routes for the holding of fatal accident inquiries, in paragraph 3.1 of his Note of Argument, counsel for the Interested Parties continued as follows:-

"The chilling effect" of possible expenses awards on the Lord Advocate

"3.2 Senior counsel for the petitioner suggested that the Lord Advocate might be deterred from ordering the holding FAIs if there was any possibility that he might be found liable for the expenses of any of the participating parties.

3.3 This cannot be right. In the case of a mandatory inquiry, the Lord Advocate has no choice but to order an inquiry, so the possibility of an expenses award against him cannot influence that decision. He has no discretion - the ordering of the inquiry follows automatically. The possibility of an expenses award cannot then - as a matter of simple logic - have any 'chilling effect' on the holding of a mandatory inquiry, however unnecessary it might process to be. Further and in any event, the convening of a mandatory inquiry is simply the carrying out a duty under statute - there are no circumstances where the carrying out of what one is required to do (holding a mandatory inquiry) can be said to be vexatious, so questions of awards of expenses being made against the Lord Advocate simply because of his holding a mandatory inquiry just are unlikely to arise. And if a mandatory inquiry is simply an unnecessary formality there will be no need for any participation by any interested parties so no expenses will unnecessarily be incurred by them.

3.4 In the case of discretionary inquiries - whether in terms of the positive exercise of his discretion or (as in the present case) the refusal to exercise his right of waiver - the Lord Advocate would be acting ultra vires and unlawfully if he took into consideration in deciding whether or not to order such a discretionary inquiry - the possibility that his department might be found liable to pay the expense of any of the participating parties. The 1976 statute directs the Lord Advocate to consider only whether it be 'expedient in the public interest' in considering whether to exercise his positive discretion to order an inquiry into a suspicious death. And in the case of the non-exercise of his waiver, the same statute directs the Lord Advocate to consider only whether or not in the concluded criminal proceedings arising out of a death at work or a death while in legal custody the circumstances of the death have been sufficiently established in those criminal proceedings. If and insofar as the Lord Advocate might consider any other factor - such as his department's possible expenses liability - he would be taking into account an irrelevant factor such that his decision would be liable to be set aside in any judicial review on grounds of its irrationality or illegality. Thus, it cannot be submitted that the possibility of an expenses award would have a chilling effect on the Lord Advocate's decision whether or not to hold a discretionary inquiry.

3.5 The absurdity of the possibility of an expenses award having 'chilling effect' on the decision whether or not to hold an inquiry becomes plainer yet when it is noted that in English criminal procedure, a successful defendant may apply to obtain his costs (expenses) against the Crown. Further although the High Court of Justiciary has not been in the habit of awarding expenses in relation to the Lord Advocate as public prosecutor (see HM Advocate v Aldred 1922 JC 13 [Production 7/6]) in the course of first instance proceedings in solemn criminal procedure, it clearly does have the power to award expenses against any private prosecutor and in favour of third parties involved in such criminal proceedings. (see Gallagher, Petitioner, 1990 JC 345 [Production 7/7]). In stated cases and appeals against summary sentences by way of note of appeal the High Court has power to award such expenses, both in the High Court and in the inferior court, as it may think fit. (see section 183(9) of the Criminal Procedure (Scotland) Act 1995 and generally Renton & Brown Criminal Procedure (6th edition) at paragraph 23-163 -

23-165). The practice of the Privy Council in deciding criminal cases before it is to award expenses in favour of the successful party against the prosecutor (see Benedetto v The Queen (No 2): Practice Note [2004] 1 WLR 500 [Production 7/24]). Thus, in Millar v Dickson 2003 SC (PC) 30 the Privy Council awarded expenses in favour of the successful appellant/accused against the Crown in an appeal from the High Court of Justiciary on a devolution issue. (See generally Judicial Committee (Devolution Issue) Rules Order 1999 [PH Vol V P 601] and Judicial Committee (Powers in devolution cases) Rules Order 1999 [PH Vol. V P 624]).

3.6 Against this background the fact that in solemn criminal procedure in Scotland, including appeals (see section 128 of the Criminal Procedure (Scotland) Act 1995 and generally Renton & Brown Criminal Procedure (6th edition) at paragraph 23-163, 28-25) no expenses awards are made is anomalous and contrary to common European practice. (see Attorney General for Gibraltar v Shimidzu (Berllaque intervening) [2005] 1 WLR 3335). The traditional practice that no expenses awards be made against the Lord Advocate in criminal trials reflects an older pre-HRA and pre-devolution constitution under which the courts traditionally regarded the petitioner as exercising a distinct, unique and privileged constitutional position. See Hester v McDonald, 1961 SC 370 per Lord President (Clyde) at 378-379 [Production 7/13]. But there is no presumption that the constitutional immunities which traditionally attached to the petitioner's office in the prosecution of crime similarly attach to his office in the investigation of deaths. In any event, the powers of the petitioner in relation to both the prosecution of crime and the investigation of deaths are, post-devolution, now statutorily limited and subject to review by the courts. (see Sinclair v HM Advocate, 2005 SC (PC) 28 per Lord Hope of Craighead at paragraph 37 [Production 7/14]; and HM Advocate v Scottish Media Newspapers Ltd 2000 SLT 331 per the Lord Justice General (Lord Rodger of Earlsferry) at 333c [Production 7/15]).

3.7 It is clear that the fact that expenses awards may be made against public authorities in the exercise of their public functions - notably criminal prosecutions - is not regarded as a chilling factor on the exercise of those functions. In no circumstances, then, can it be said that there is some overwhelming public interest such as to justify any necessary implication that no expenses ever be awarded against the Lord Advocate when carrying out his statutory functions in the public interest."

[202] Counsel for the Interested Parties then turned to consider

"The chilling effect re families" as follows:-

"3.8 It is ridiculous also to talk of an expenses neutral forum as somehow creating a level playing field. It is quite clear that private parties - notably families of the deceased - rarely have the resources available either to commercial concerns or public authorities. An expenses jurisdiction in the sheriff is in fact necessary to protect the family's interests. Of relevance in this regard is the decision of the Court of Appeal in Regina (Khan) v Secretary of State for Health (where counsel highlighted in particular quotations from paragraphs 42, 43, 62, 74, 75, 87, 88, 91, 96, 97, 98 and 99) [Production 7/17] ...

3.9 This judgment shows that the legal aid means test limits may be such as to exclude individuals from proper participation in an inquiry into a death, which is their Convention right under Article 2 ECHR. The result of the decision of the Court of Appeal in Khan was that the UK Government brought into force in England the Community Legal Services (Financial) (Amendment No 2) Regulations 2003 (SI 2003/2838) on 1 December 2003, regulation 3 of which amended the Community Legal Service (Financial) Regulations 2000 by inserting regulation 5C, which empowered the Secretary of State, on receipt of a request from the Legal Services Commission, to disapply the financial limits for eligibility in relation to an application for the funding of legal representation to provide advocacy at an inquest into the death of a member of the applicant's immediate family. ... (see Carmichael Fatal Accident Inquiries (3rd edition, 2005) at paragraph 11-43 [Production 7/29 page 432]).

3.10 But no similar provision has been made in Scotland as regards the disapplication of the civil legal aid financial limits in respect of next of kin participating in FAIs however. In principle, then this effective exclusion of families of the deceased who are ineligible for legal aid from full and independent participation into the FAI into their relatives' death could be seen to be in contravention of their Article 2 procedural rights. The possibility of the sheriff making a suitable award of expenses in favour of the family might therefore actually be required by sections 3 and 6 of the Human Rights Act 1998 to allow the deceased's relative properly to participate in the inquiry, and so prevent the sheriff from presiding over a Convention incompatible FAI."

[203] In paragraphs 3.11 to 3.13 Counsel for the Interested Parties continued his criticisms of the petitioner's approach.

[204] In paragraph 3.13 Counsel for the Interested Parties noted inter alia that:-

"The issue of the interplay between the possibility of expenses awards in FAI's and the funding requirements of Article 2 of the Convention ... is very much a live one, albeit not directly engaged in the circumstances of the present case."

[205] Counsel for the Interested Parties continued as follows:-

"3.14 Finally, senior counsel for the Lord Advocate alluded, in passing, to the Article 6 ECHR requirements of 'equality of arms' and the need for 'a level playing field' in support of his suggestion that the possibility of expenses awards in FAIs being made in favour of the families would require, as a matter of Convention jurisprudence, that there equally be open the possibility of an award of expenses to be made against the families, either at the instance of the Lord Advocate/procurator fiscal or other interested parties. This is so much nonsense, however, for the following reasons, among others:

(i) In the first instance, the Lord Advocate as a public authority cannot pray Convention rights in his favour. Convention rights are what individuals can pray in aid against the State, not what the State can use against individuals.

(ii) In the second place, the principle of equal treatment under Convention case law requires that like cases be treated alike and that unlike cases be treated differently. See Thlimmenos v Greece ECHR 2000-IV 268 (Grand Chamber) at 279:

'44. The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification (see the Inze judgment cited above, p. 18, 41). However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.'

The families in an FAI are in a different position to any other participating party precisely because they have an Article 2 Convention right to participate in the inquiry which the State is required to facilitate. Interested parties other than the families have in general no such Convention rights to participate and thus are not in the same position as the families.

(iii) Thirdly, the suggestion was made by senior counsel for the Lord Advocate that an "expenses neutral" environment made for equality of treatment in FAIs. But that is patently not the case because the Lord Advocate has untrammelled access to the public purse to pursue any particular agenda or angle which he might choose to do in the course of an FAI but the families have no such public purse access. True equality of treatment of the deceased's families vis ŕ vis the Lord Advocate would require them to have equal access to funding from the public purse. In the absence of any such open provision by way of way of Ministerial grant of funding, the only means of access for these parties to the public pursue is by way of an expenses award against the Lord Advocate.

3.15 As the Privy Council correctly noted in Attorney General for Gibraltar v Shimidzu:

'11. Equality of arms is an aspect of procedural fairness, protected by section 8 and article 6. It seeks to ensure that the defendant does not suffer an unfair procedural disadvantage: De Haes and Gijsels v Belgium (1997) 25 EHRR 1, para 53. It does not require that the situations of the prosecutor and the defendant should be assimilated. In practice those positions are necessarily different: the prosecutor is not liable to be detained pending the trial and is not liable to punishment if the prosecution fails.'

Attorney General for Gibraltar v Shimidzu (Berllaque intervening) [2005] 1 WLR 3335 at 3343."

[206] Counsel for the Interested Parties then turned to consider the

"Chilling effect re non-family interested parties" as follows:-

"3.16 ... the assertion made by senior counsel for the petitioner that the possibility of expenses awards being made against them might deter otherwise interested parties from participating in an FAI and adducing evidence before the Sheriff (as is their right under section 4(2) of the 1976 Act) is no more than an assertion. As we have noted, the far more likely scenario is that interested parties - in particular the family of the deceased - will be deterred from participating if they cannot have an award of expenses made in their favour. The interested employers and other public bodies generally have sufficiently deep pockets to bear the cost of their own legal representation and the notional risk of their being required - by reason of their misconduct or vexatious conduct in the course of the FAI - to cover some of the costs of other participating parties.

3.17 In any event there may be a Convention rights based argument to the effect that in an inquiry held, as in the present case, after criminal proceedings have been concluded against any person in respect of the death, but where the Lord Advocate is not satisfied that the circumstances of the death have been sufficiently established in the course of the criminal proceedings, then the presumption of innocence requirements of Article 6(2) may require that the sheriff presiding over such an FAI should have the power to award any individual who has been previously acquitted of criminal responsibility of the death, the expenses of his legal representation before the FAI. Failure to allow for such remuneration of his costs before the FAI might otherwise be seen as casting doubt on his innocence established on his acquittal from or dismissal of the earlier criminal charge. (Counsel referred to the observations of the Strasbourg Court in Del Latte v Netherlands ECHR 9 November 2004 at paragraph 30 [Production 7/19])."

[207] Counsel for the Interested Parties suggested the following:-

"Conclusion on the holding of an FAI":-

"3.18 The FAI legislation has now to be seen post the Human Rights Act as the State's mechanism for ensuring Article 2 ECHR compliance. The practice and procedure of the FAI have now to be read and applied in the light of the requirements of both Article 2 (and Article 6(2)) ECHR. (Reference was made to Regina (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 per Lord Hope at 677-680 [Production 7/18].)

3.19 The decision of the Court of Appeal in Khan shows that lack of public funding for families might cause inquests or inquiries into deaths to be Convention incompatible. Clearly since Ministers (including the Scottish Ministers) cannot simply pay monies to families without authority, some means will be required to allow family participation and payment of legal representation in an FAI. The award of expenses by the sheriff in an FAI would be a proper means of achieving Convention compatible participation of the family within the process. The claim by the petitioner that there is no such power is potentially Convention incompatible. The strong presumption has to be against any such reading of the relevant statutory provisions of the 1976 Act."

 

4. The Arguments from lack of precedent

[208] The submissions of counsel for the Interested Parties in relation to the "The argument from lack of precedent" were along the following lines:-

"4.1 Senior counsel for the petitioner laid great stress on the fact that in the 110 years of the system for shrieval investigation into workplace deaths there have been few if any reports of awards of expenses in favour of any party. But simply because something has not been done, does not show that it cannot be done, and the petitioner is committed to showing that it cannot be done. In any event, it is clear that prior to the 1976 Act, inquiries into deaths before the sheriff were conducted as nearly as possible in accordance with the procedure applicable to criminal trials before a sheriff and jury and, as we have seen, traditionally no expenses were awarded in first instance criminal proceedings in Scotland, so it is no surprise if they were not awarded in analogous inquiry proceedings.

4.2 With the coming into force of the 1976 Act, civil legal aid was made available to interested parties who were otherwise financially eligible. Where legal aid is made available there would be no need for the legally assisted party to seek expenses against any other party to the inquiry. Senior counsel for the petitioner laid stress on the decision of Sheriff Risk in the Brent Spar FAI not to recommend payment of the expenses of any of the interested parties from public funds. It is to be noted, however, that he was not in fact asked himself to make any award of expenses in relation to parties within the FAI. His statement that he could not in fact make such an award was then obiter and, in any event, apparently made without the benefit of full submissions from parties or any in-depth independent legal research on his own behalf. He was, in any event, misinformed as to the facts: in Lockerbie public funding was made available, as Carmichael makes clear; in Ocean Odyssey (in which Mr O'Neill acted as counsel for the deceased's family) the employer paid for the relatives representation; and in the Mull of Kintyre Chinook inquiry (in which Mr O'Neill acted as counsel for the family of the deceased captain of the helicopter ...) the matter was fully privately funded and there were no instructions to ask for expenses. Sheriff Jessop simply followed Sheriff Risk in error in Cormorant Alpha FAI.

4.3 In any event, statutory provisions are "always speaking" and are to be read against the current constitutional background and applied accordingly in a manner which 'makes sense' in the light of its place within the social and scientific world and within the system of legal norms currently in force. See McCartan Turkington Breen (A Firm) v Times Newspapers Ltd [2001] 2 AC 277 per Lord Steyn at 296; Morris v KLM [2002] 2 AC 628 per Lord Steyn at 643:

'[S]tatutes are generally always speaking, and ought therefore to be interpreted in light of the contemporary social and scientific world. This is not a rule of law but a principle of construction, which may be displaced by a contrary intent revealed by a particular statutory context.' ....

(Counsel for the interested parties also referred to examples such as Fitzpatrick v Sterling Housing Association [2001] 1 AC 27, M v Home Office [1994] 1 AC 377 and Davidson v Scottish Ministers (No. 1) [2005] UKHL 74). ...

4.4 Finally, with the coming into force of the Human Rights Act 1998, the 1976 Act now has to be read and applied in a manner which is Convention compatible, so it matters not how the 1976 Act may have previously been understood by parties if respect for Convention rights requires a different meaning. As we have seen the necessary features of an investigation compliant with Article 2 ECHR are these:

'1. The investigation must be independent.

2. The investigation must be effective.

3. The investigation must be reasonably prompt.

4. There must be a sufficient element of public scrutiny.

5. The next of kin must be involved to the appropriate extent.'

See R (Wright & Another) v Secretary of State for the Home Department [2001] 1 Prison Law Reports 337 (Admin Ct.) per Jackson J. at 342 para 41) [Production 7/27].

4.5 The necessary involvement of the next of kin may require funding to be available where none was previously thought necessary. In Edwards v UK, ECHR, 14 March 2002, [2002] ECHR 303 [Production 7/23] the Strasbourg Court observed as follows:

'87. The Court finds that the lack of power to compel witnesses and the private character of the proceedings from which the applicants were excluded, save when they were giving evidence, failed to comply with the requirements of Article 2 of the Convention to hold an effective investigation into Christopher Edwards's death. There has accordingly been a violation of the procedural obligation of Article 2 of the Convention in those respects.'

The possibility of an expenses award is an appropriate method of providing such funding given the strict financial limits imposed on eligibility for legal aid, assuming that such is otherwise available for the family's legal representation at an FAI."

 

5. Summary on Competency of expenses award

[209] In section 5 of his written submissions counsel for the Interested Parties made the following points:-

"5.1 In summary we may conclude as follows:

(i) the possibility of the sheriff making an expenses award in relation to the parties appearing before him is one of the ways in which the sheriff can ensure that the proceedings before him are conducted properly by all parties so that the proceedings are not disrupted, hijacked, or conducted oppressively by any parties and that the overall purpose of the inquiry - which is to establish the facts and circumstances of death - is achieved. Ultimately the possibility of the sheriff awarding expenses in relation to a party who has acted vexatiously or unreasonably is a function of justice and of good discipline of the procedure before it. Neither the Lord Advocate - nor any other party - need ever fear a finding of expenses against them if they behave properly in the course of inquiries. But without a power to award expenses generally among the parties (albeit one that is likely to be used only exceptionally as in the present case, and the OTR FAI decision) the sheriff is unnecessarily deprived of an essential part of his armoury to ensure the proper administration of justice in the proceedings before him.

(ii) In the absence of any Ministerial power or discretion in Scotland to waive the financial limits on civil legal aid for the families of the deceased it may indeed be incumbent upon the sheriff to make an expenses award against the Lord Advocate in favour of the families of the deceased to ensure the possibility of their full participation in the FAI in accordance with their procedural rights under ... ECHR. Families are very unlikely ever to be landed with anyone else's expenses and that would arguably be Article 2 incompatible, and any supposed 'chilling effect' deterring their participation because of the possibility of being landed with others' expenses can be avoided by the sheriff at the outset of the proceedings making a pre-emptive expenses ruling to the effect that the family will not be found liable to any contra-award of expenses against them.

(iii) Finally, it may be that considerations of the maintenance of the presumption of innocence as guaranteed under Article 6(2) ECHR may lead the sheriff to make an expenses award in favour of any person who had previously been tried and acquitted of responsibility for a death which death is then subsequently made the subject of an FAI. If the sheriff had no power in an FAI to make such an expenses award in these circumstances this could well give rise to an argument of Convention incompatibility in the FAI's proceedings.

5.2 For all these reasons it is submitted that the ... Lord Advocate's petition be dismissed ..."

 

6. Response to the Petitioner's case in reply.

[210] The Interested Parties also lodged a Supplementary Note of Argument (which can be called No. 10A of Process) which I refer to for its full terms.

[211] It provides a response by the interested parties to the Petitioner's case in reply (which I do not propose to rehearse).

[212] I would outline that response as follows.

[213] In paragraphs 1.1 to 1.6 (of No. 10A) the Interested Parties argued, inter alia, that the petitioner's competency challenge was pitched at the level of generality and that counsel for the petitioner was contradicting himself.

[214] In paragraphs 1.6 to 1.7, the interested parties suggested inter alia that counsel for the petitioner was "(perhaps unwittingly) relying on the idea of natural implication rather than necessary implication". The petitioner had to persuade the court that "something like an absurdity" would result if the sheriff could award expenses in FAI's or that "that it is impossible to suppose" other than that section 4(7) was intended to take away from the sheriff an inherent jurisdiction which he had before to award expenses in causes before him. "In fact of course, it is the petitioner's reading of Section 4(7) which leads to absurdity" - so suggested the interested parties under reference to Gorton Local Board v Prison Commissioners (Note) [1904] 2 K.B.165 per Walls J. at 168.

[215] In paragraphs 1.8 and 1.9 the interested parties submission was to the effect that Section 3 HRA does not give the court the power to "disapply" provisions of primary legislation (for example the financial limits imposed under the Legal Aid (Scotland) Act 1986). Instead it enjoins the court to read and give effect to primary and subordinate legislation in a way which is compatible with Convention rights, so far as it is possible to do so. The petitioner's original necessary implication argument of an expenses prohibition (the sheriff simply has no power to make any such award) means that the petitioner is committed to saying that it simply is not possible to read the provisions of the 1976 Act in any other way, even if to do so would be to make the application of the 1976 Act Convention incompatible.

[216] In paragraph 1.10 the interested parties referred to the Scotland Act and the vires limitations of Convention incompatible action. Their conclusion was to the effect that "If the 1976 Act is to be interpreted in a Convention compatible manner, then the petitioner will have to abandon as unfounded his arguments that it is a necessary implication of the Act no expenses can ever be awarded."

[217] In paragraphs 1.12 to 1.15 counsel for the interested parties dealt with the question of "expenses v. funding" as follows:-

"1.12 Senior counsel for the petitioner attempted to draw a distinction between an award of expenses in respect of legal representation and the provision of funding for legal representation. This is a distinction without a difference since both are simply monies to pay for one's lawyers.

1.13 Whether the money comes from the Lord Advocate's Department by virtue of an expenses award by a sheriff or from the Scottish Legal Aid Board if empowered to waive otherwise applicable financial limits matters not to the recipient or to the taxpayer given that the money in each case will ultimately come from the Scottish Consolidated Fund. See section 64 of the Scotland Act. The idea that considerations relating to accounting and inter-departmental budgets should determine whether or not an individual's family's Convention rights are to be respected is simply ludicrous. If the administration will not make provision for funding in FAIs so as to comply with Convention requirements then it is the duty of the court to do so by making an expenses award, since the sheriff has no power to disapply the limits imposed by the Legal Aid Act but does have power to determine who should pay expenses and how much should be paid.

1.14 Senior counsel for the petitioner stated that there is a constitutional principle that monies can only be paid out on the authority of Parliament. But there is a more significant constitutional principle that the requirements of the European Convention have to be respected by all organs of the State (legislative, judicial or administrative), when acting within their respective spheres of authority. As Lord Bingham has observed:

'[T]he efficacy of the Convention depends on the loyal observance by member states of the obligations they have undertaken and on the readiness of all exercising authority (whether legislative, executive or judicial) within member states to seek to act consistently with the Convention so far as they are free to do so.' (R. v Lyons [2003] 1 AC 976 per Lord Bingham at paragraph 13; and see also Lord Hofmann at paragraph 33) ...

1.15 There is nothing contrary to any constitutional principle that the court might award expenses against the Lord Advocate in favour of families at an FAI in order to conform with the requirements of Article 2, just as there would nothing unconstitutional about the Lord Ordinary awarding expenses against the Lord Advocate when dismissing the present petition. See Buchanan v McLean, 2002 SC (PC) 1 and Sheelagh McColl v Scottish Ministers [2005] CSOH 163, 29 November 2005 per Lord Carloway. The sheriff, like any other court, has this inherent power to award expenses among the parties appearing before it. Senior counsel for the petitioner misunderstands or misrepresents the dictum taken from the Court of Appeal judgment in Khan when Brooke LJ observed that: 'the courts cannot require ministers to make unlawful payments'. (Regina (Khan) v Secretary of State for Health [2004] 1 WLR 971, CA per Broke LJ at 994 paragraph 90 [Production 7/17]). All that is being said here is that the courts in a judicial review cannot order Ministers to make payments for which he has no statutory authority to do. It does not say that a court is in any way disabled from making an expenses or costs award against parties compearing before it, including against the Ministers of the Crown or the Scottish Ministers, without the need to establish whether the Ministers have been given any specific statutory authority to obtemper such a judgment by the court. It is of the essence of the rule of law that Ministers comply with court judgment (See Davidson v Scottish Ministers (No. 1), 2006 SLT 110, HL).

[218] In paragraphs 1.16 to 1.18 counsel for the interested parties explained how there was no inconsistency in his approach. The interested parties recognise that FAI's are not in general adversarial proceedings in which there can be said to be winners or losers and so accept that in the exercise of the sheriff's discretion it is unlikely that expenses awards may be made inter parties unless one of those parties has been found - as the Crown was found in the present case - to be have been acting vexatiously or oppressively. This is so regardless of whether one might characterise the FAI as judicial, administrative or sui generis. However, a quite distinct argument arises in relation to the position of the families of a deceased who may have Article 2 ECHR procedural rights of effective participation in an inquiry. In that situation it is suggested that it may be required of the sheriff to exercise his discretion so as to make an award of expenses against the State in favour of the family where the State has made no other provision for their effective participation and therefore would otherwise be in breach of Article 2 ECHR. The court has always to exercise the discretion it has (including as regards making awards of expenses) in a manner which is Convention compatible.

[219] In paragraphs 1.19 and 1.20 counsel for the Interested Parties argued that discussion of the powers of an ad hoc chairman of inquiries under the now repealed 1895 Act does not assist in the determination of the issue in the present case.

[220] In paragraphs 1.21 and 1.22 counsel for the interested parties dealt with the power to put witnesses on oath. Senior counsel for the petitioner suggested that one could look to the Ordinary Cause civil rules - Rule 29-16 (at PH Vol I D/44/76/16). But if one can go to the Ordinary Cause rules for procedures and powers of the sheriff then one can also rely thereon for its provisions on expenses in Rule 32, and in particular Rule 32.2. This, according to the interested parties, proves quite simply that section 4(7) of the 1976 does not have the exclusive and enumerating quality ascribed to it by the petitioner. It does not list all the powers of the sheriff, since one may refer to other powers, whether as part of his inherent jurisdiction or as regulated under the general ordinary cause rules.

[221] In paragraphs 1.23 and 1.24 counsel for the interested parties dealt with the question of payment of additional fees. The primary submission was that the fact that up until 2003 it was clearly accepted that the Sheriff could award additional fees in FAIs shows again that the petitioner's approach to section 4(7) is wholly misconceived. It does not matter that this power may subsequently have been taken from the sheriff by the 2003 amendments to the legal aid regulations. What is of significance, however, is that this power to award additional fee expenses in FAIs had to be expressly taken from the Sheriff by including FAIs in the restricted Schedule 7 category of proceedings. Prior to that the sheriff had the power to award expenses under the regulations because FAIs were considered to be as a cause on the ordinary roll. Once again, submitted the interested parties, this shows that the 1976 Act is not being read in the restrictive four corners fashion suggested on behalf of the petitioner and section 4(7) is not seen to limit the general powers which the sheriff has, whether inherent powers or given to the sheriff under other statutory provisions.

[222] In paragraph 1.25 and 1.26 counsel for the interested party summarised his views on the question of "oppression". He invited the court to bear in mind that throughout her substantive determination and in her related note on expenses the sheriff has repeatedly stressed the extraordinary oppressive and vexatious manner in which the Crown chose to conduct the present FAI. Although it is clear that in normal circumstances, an FAI would not engage the rights in Article 6 ECHR - being neither a process for the determination of civil rights and obligations or of a criminal charge - it would appear that the Crown chose to use the FAI proceedings with a view to establishing not a dispassionate account of the fact but instead to fix a finding of guilt or blameworthy conduct, in particular upon the third interested party in the present proceedings, James Smith. Counsel sets out the various passages relied upon (in the sheriff's Note) in paragraph 1.25. In paragraph 1.26 it is submitted that, standing these unequivocal and unchallenged findings of the sheriff, it is clear that an award of expenses against the Crown was wholly appropriate in the present case and arguably, indeed, required from considerations of fairness and the preservation of the presumption of innocence, both at common law and under and in terms of the Convention.

[223] In conclusion, for all these reasons counsel for the interested parties renewed his motion that the interested parties first plea in law be upheld, that the Lord Advocate's petition be dismissed and that the Lord Advocate be found liable to the interested parties in the expenses consequent upon this matter."

 

7. Supplementary Submissions on the case of Stankiewicz v Poland

[224] The Interested Parties subsequently lodged supplementary submissions in relation to the case of Stankiewicz v Poland ECtHR, App. No. 46917/99, Judgment dated 6 April 2006. Those submissions are No. 12 of Process - and the case itself is Production 7/32. I refer to them for their full terms.

[225] As noted above, the Petitioner responded by way of written submissions which are No. 11 of Process.

[226] In essence, the Interested Parties' submissions on the significance of the decision were to the following effect (and again I summarise brevitatis causa):-

"In the present petition of the Lord Advocate the interested parties have submitted that the Convention rights which are potentially engaged in the context of FAIs are those associated with the procedural duties of investigation under and in terms of Article 2 ECHR and the presumption of innocence set out in Article 6(2). See Del Latte v Netherlands, ECtHR 9 November 2004 at paragraph 30 [Production 7/19]. Article 2 requires an open and public hearing at which the family of the deceased are afforded a real opportunity fully and independently to participate in the proceedings through legal representation if necessary. If as the petitioner alleges the sheriff has in no circumstances any power to award expenses to or against any party participating before the FAI then this might result in a breach of the procedural obligations of the State under Article 2 because it could effectively prevent or discourage properly interested parties' full participation in the FAI process. Similarly an inability to award expenses in favour of a party vindicated before an FAI may contravene the presumption of innocence set out in Article 6(2). Finally as the Strasbourg Court has held in Stankiewicz an inability on the part of the court to award expenses in favour of a properly participating party before an FAI may constitute an unlawful interference with or deprivation of property, contrary to the requirements of Article 1 Protocol 1."

[227] The conclusions suggested by the Interested Parties were as follows:-

"3.1 The decision of the European Court of Human Rights supports the interested parties' contention that decisions relating to awards of expenses in court proceedings may engage the provisions of the Convention and, more particularly, that a provision which prohibits in any circumstances an award of expenses in favour of a party properly before the court may constitute a breach of that party's Convention rights. The decision points to the conclusion that any interpretation of national law, such as that contended for by the petitioner in the present application, which claims that it is incompetent for a sheriff in proceedings before him or her to make any award of expenses is a reading of the law which might lead to a finding of Convention incompatibility. ...

3.2 The applicability of Convention rights considerations is not dependent on whether or not proceedings before a Fatal Accident Inquiry are to be classified as civil or criminal proceedings for the purposes of Article 6(1) ECHR or as proceedings sui generis since it is plain that they are proceedings falling within the scope of Article 2 ECHR and whose outcome may have implication for the presumption of innocence under Article 6(2) ECHR.

3.3 By virtue of section 2(1) of the Human Rights Act 1998, this Court has to take into account all and any relevant Strasbourg case law. Unless there is very good and cogent reason for departing from a relevant Strasbourg authority this court should follow it since otherwise there is a danger that the decision of this court will result in a contravention of the Convention contrary to its obligations under and in terms of Section 6(1) of the Human Rights Act. It is not good enough as the petitioner would have it to assert that the decision is unprecedented or not yet part of 'a clear and constant line of jurisprudence from the Strasbourg court'. It is clear that the decision in Stankiewicz is a natural development of the court's existing case law regarding the principle of the rights of access to the court and equality of arms before the court.

3.4 Private parties before an FAI are not in the same position as the State authorities. State authorities - such as the petitioner in the present case - have untrammelled access to the taxpayers' pocket such that they can bring proceedings and continue to contest them with impunity to the highest level without proper regard to the economic considerations that weight upon private individuals faced with complex and lengthy court proceedings. As the Strasbourg Court noted in Stankiewicz:

'56. It was generally acknowledged that the prosecuting authorities had at their disposal ample financial means exceeding those available to any individual. ...

1.   The Court further notes that the prosecuting authorities enjoy ab initio a privileged position with respect to the costs of civil proceedings. In that connection, the Court also notes the applicants' argument that the prosecuting authorities in any event have at their disposal legal expertise and ample financial means exceeding those available to any individual.

2.   It is true that such a privilege may be justified for the protection of the legal order. However, it should not be applied so as to put a party to civil proceedings at an undue disadvantage vis-ŕ-vis the prosecuting authorities.'

In these circumstances a rule to the effect such as contended for by the petitioner to the effect that no party may be awarded expenses either for or against them in the context of an FAI has an indirectly discriminatory effect (similar to the freedom that the rich and poor have to sleep in ditches or under bridges) since it would not deter the State authorities from initiating and prosecuting FAI's but could well deter private parties from properly and fully participating therein."

[228] Against that background, I turn to my decision.

 

Decision

 

Summary

[229] In my opinion, the award of expenses against the Crown and in favour of the interested parties was not competent.

[230] My reasons for so holding are essentially those outlined by the petitioner (which I have set out above) albeit subject to certain qualifications (which I will set out below).

[231] In my opinion, the sheriff has erred in reaching the conclusion which she did.

[232] The arguments now deployed by the petitioner were simply not advanced by the Crown before Sheriff Cowan.

 

General

[234] I have outlined the submissions of parties in some considerable detail above, and I now propose to try to draw the main issues together in shorter format.

[235] There is no need to rehearse the detailed arguments again.

[236] I have already provided references for the main authorities, and their process numbers, together with quotations from the statutory provisions.

[237] Having regard to all of the submissions (including those specifically mentioned above) I have reached the following conclusions.

 

The Sheriff's decision

[238] I can readily understand why Sheriff Cowan formed the view which she did in this particular case but, as mentioned, the sheriff did not have the benefit of the detailed submissions and authorities which were provided to me.

[239] The approach favoured by Sheriff Cowan is based on the proposition (page 4 of her Note - Production 6/1) that:-

"If Parliament intends to limit the inherent power of the Court to deal with expenses in proceedings brought before it then ... express provision to that effect is required".

[240] That may well be the case in many or most forms of proceedings but I am not satisfied that it is the correct approach in relation to fatal accident inquiries.

[241] On the contrary, having regard to the various factors founded upon by the Petitioner, I am satisfied that fatal accident inquires fall to be treated as proceedings sui generis.

[242] The correct starting point, in my view, is the more traditional view aptly summarised in the second edition of Macphail on Sheriff Court Practice, in 1998, [Production 6/8, at page 898, paragraph 27.23] namely that:-

"an inquiry is not an adversarial process, and no award of expenses should be made against or in favour of any compearing party. Indeed, it is thought that to make such an award would be contrary to the public interest, and would be susceptible to decree of reduction by judicial review."

[243] Although I agree with the interested parties that "expenses are generally awarded in civil procedure" it cannot be said that expenses are generally awarded in fatal accident inquiries.

[244] That, in my view, is an important distinction and one which is not fully recognised in the approach favoured by the sheriff or by the interested parties.

[245] In short, there is no inherent power to award expenses in a fatal accident inquiry.

[246] Even if there is, it has been excluded by the statutory provisions.

 

The statutory provisions?

[247] In my opinion, the Petitioner's analysis of the statutory provisions is correct and falls to be preferred.

[248] The Fatal Accident and Sudden Deaths Inquiries (Scotland) Act 1976 Act provides a self-contained set of provisions.

[249] The primary purpose is to promote safety in the public interest by having public inquiries into deaths.

[250] There is no provision for expenses.

[251] The structure of the Act is indicative of a process in the public interest where the public purse will bear the costs incurred by the procurator fiscal and parties will bear their own expenses.

[252] I am not persuaded that fatal accident inquiries fall to be treated as ordinary actions, civil proceedings or administrative applications in relation to awards of expenses.

[253] Fatal accident inquiries are statutory proceedings sui generis.

[254] There is no lis.

[255] Proceedings are not adversarial.

[256] Representation is optional.

[257] There is no "success" for expenses to follow.

[258] The judicial / administrative dichotomy may be helpful in certain situations but it does not have the effect of conferring a power on the sheriff to award expenses in a fatal accident inquiry.

[259] If anything, fatal accident inquiries are more akin to criminal trials and fall to be treated in a similar way - with the public interest warranting no award of expenses in such proceedings.

[260] If a power to award expenses had been intended it would have a simple matter for Parliament to say so expressly.

[261] Parliament has, for example, made express provision for expenses in other situations such as in shipping legislation and in the Merchant Shipping Act 1995 [see Production 6/7 and 6/20].

 

Necessary exclusion?

[262] Sheriff Cowan took the view, assuming that there was an inherent power to award expenses, that it had not been limited by Parliament.

[263] I take a different view.

[264] In my opinion, power to award expenses in a fatal accident inquiry is excluded by necessary implication - essentially for the reasons outlined by counsel for the petitioner.

[265] In the result, I agree with the obiter comments made by Sheriff Risk in the Brent Spar Inquiry [No. 6/24 of Process at page 74] that:-

"Parliament has not seen fit to confer upon the Sheriff any power to make an award of expenses".

[266] Sheriff Jessop came to a similar view in the Cormorant Alpha Inquiry [No 7/25 of Process at page 74] namely:-

"that no provision was made in the Fatal Accident Inquiry Provisions for payment of expenses".

[267] In essence, I agree with the petitioner.

[268] The inclusion of "the powers of the sheriff to deal with contempt of court" in fatal accident inquiries (in section 4(7) the 1976 Act) would have been unnecessary if such inherent powers were already included by implication.

[269] Although it is not necessary to do so, the petitioner can go further.

[270] Sheriff Cowan took the view that there is an inherent power to award expenses (which has not been limited by Parliament).

[271] That is not the correct starting point.

[272] On the contrary, in the absence of legislative provision, the sheriff has no power to award expenses in fatal accident inquiries.

[273] It is not just a question of whether the 1976 Act stripped the sheriff of an inherent power to award expenses.

[274] The sheriff never had that power in fatal accident inquiries.

[275] As mentioned above, they are proceedings sui generis.

 

The main propositions for the interested parties

[276] Mr O'Neill's primary submissions, for the interested parties, were distilled down into to three main propositions (as outlined in the "Summary on Competency of Expenses Award" in section 5 of No 10 of Process), namely:-

(i) Without a power to award expenses generally among the parties (albeit one that likely to be used only exceptionally - as in the present case) the sheriff is unnecessarily deprived of an essential part of his armoury to ensure the proper administration of justice in the proceedings before him.

(ii) In the absence of any Ministerial power or discretion in Scotland to waive the financial limits on civil legal aid for the families of the deceased it may indeed be incumbent upon the sheriff to make an expenses award against the Lord Advocate in favour of the families of the deceased ... under reference to ... ECHR. ... (T)he possibility of being landed with others' expenses can be avoided by the sheriff at the outset of the proceedings making a pre-emptive expenses ruling to the effect that the family will not be found liable to any contra-award of expenses against them.

(iii) Finally, it may be that considerations of the maintenance of the presumption of innocence as guaranteed under Article 6(2) ECHR may lead the sheriff to make an expenses award in favour of any person who had previously been tried and acquitted of responsibility for a death which death is then subsequently made the subject of an FAI. If the sheriff had no power in an FAI to make such an expenses award in these circumstances this could well give rise to an argument of Convention incompatibility in the FAI's proceedings.

[277] I was not persuaded that the first proposition was sound. The sheriff is not being "unnecessarily deprived" of anything. Sheriffs regularly secure the proper administration of justice, for example in criminal courts, without any reliance on a power to award expenses. There is no power to award expenses in a fatal accident inquiry and there never has been.

[278] In relation to the second proposition, Mr O'Neill comes close to seeking rulings on points which do not actually arise in the present case (albeit they are of some relevance when testing competence). There is no suggestion that the interested parties did not fully participate in this fatal accident inquiry. The sheriff was not asked to make any pre-emptive ruling on expenses. If the problem is one that may be resolved by Ministerial power or discretion to waive the financial limits on civil legal aid then it is difficult to see why (or on what basis) the court should use the relatively blunt instrument of expenses. I was not persuaded that the second proposition assists in relation to competency.

[279] The third argument is tentative and amounts to little more than an assertion that certain circumstances "could well give rise to an argument". Taking into account the Strasbourg case law that I was referred to, I was not persuaded that there was any Convention incompatibility in this case.

[280] There was nothing in the Supplementary Note of Argument for the Interested Parties which caused me to change my view.

[281] I was not satisfied that it would be appropriate to proceed on the basis of the somewhat subjective propositions suggested by the Interested Parties, such as:-

"that it is entirely just, right and proper in circumstances where proceedings have become adversarial under the influence of vested interests that participants who pursue their own agenda at the FAI might run the risk of carrying the extra costs and expenses incurred to other parties as a result."

[282] The description "non-adversarial", when used in relation to fatal accident inquiries, refers to the procedure rather than the attitude or personal characteristics of parties or counsel.

 

Stankiewicz v Poland?

[283] I can be brief in relation to the case of Stankiewicz v Poland [Production 7/37] and Human Rights.

[284] I agree with the petitioner,

[285] Despite the arguments from the Interested Parties to the opposite effect, I agree with the petitioner's submissions which are outlined in No 11 of Process - and summarised in paragraph [193] above.

[286] In my opinion:-

(i) the fatal accident inquiry in this case (as in others) does not engage the rights in Article 6 ECHR being neither a process for the determination of civil rights and obligations nor of a criminal charge.

(ii) further, the case of Stankiewicz does not establish or evidence a general principle applicable to the present petition, and

(iii) in any event that case falls to be distinguished - for the reasons outlined by the Petitioner in their submissions (No 11 of Process).

 

Sheriff's functions?

[287] On a more general level, I was not persuaded by the argument, advanced by the Interested Parties, that a power to award expenses is necessary to enable a sheriff to control proceedings.

[288] Sheriffs have kept control without such a power - as in criminal trials - for many years.

[289] Nor was I persuaded by the argument by the Interested Parties to the effect that "an expenses jurisdiction in the sheriff is in fact necessary to protect the family's interests".

[290] If any such protection is needed, then Parliament can say so and define it after investigation, consultation, and debate on the issues - including funding.

[291] The views of the sheriffs (including the sheriffs in Aberdeen) would no doubt form an important part of any such debate.

[292] However, I have to proceed on the basis of the law as it stands (and not as some might like to be) and form a view on competency.

[293] In my view, a power to award expenses is not necessary to enable a sheriff to discharge his or her responsibilities in a fatal accident inquiry.

[294] The award in the present case was, in short, not competent.

 

Expenses neutral?
[295]
I agree with the Petitioner that fatal accident inquiries are intended to be "expenses neutral" - in the sense that the public purse will bear costs incurred by the procurator fiscal and parties will bear their own expenses.

[296] That has been the approach which has been in adopted in practice for many years.

[297] It has the benefit of simplicity and predictability. Everyone knows where they stand. There are no arguments about expenses.

[298] In my view, fatal accident inquiries should continue to be "expenses neutral" - unless and until Parliament decides to provide otherwise.

 

A Chilling Effect?

[299] There was much debate about whether expenses awards might have a "chilling effect" on fatal accident inquiries - in the sense of cooling interest or participation.

[300] In the absence of any factual research, the question is difficult to answer with any real certainty.

[301] I agree with the Interested Parties that it would be wrong to proceed on the basis that (if an award of expenses is competent) the Lord Advocate might be deterred from ordering fatal accident inquiries. I do not proceed on that basis and I am sure that the Lord Advocate would not do so either.

[302] That does not mean, however, that I agree with the Interested Parties' conclusion on the question of competency of an award of expenses.

[303] On the contrary, I am persuaded by the petitioner's arguments.

[304] The Convention based arguments mentioned by the Interested Parties in relation to "family members" and "non-family interested parties" are couched in tentative terms.

[305] I am not satisfied that they are well founded.

[306] All I can say is that, for aught yet seen, a power to award expenses might well have a chilling effect on fatal accident inquiries and that would not be in the public interest.

[307] If it is competent to award expenses against the Crown, there seems no good reason why it would should not also be competent to award expenses in favour of the Crown.

[308] That runs contrary to the principle that fatal accident inquiries have, as their objective, the ascertainment of the cause of death and the lessons to be learned therefrom in relation to safety.

 

Prior authorities?

[309] The absence of prior authority is not necessarily fatal to the Interested Parties' submissions. Points of competency may lie dormant for years.

[310] Nevertheless, I am entitled to bear in mind that no textbook ancient or modern supported an award of expenses in a fatal accident inquiry - prior to Sheriff Cowan's decision - despite that lapse of time.

[311] There is, as the petitioner has noted, no clear authority or precedent for an award of expenses in 110 years of fatal accident inquiries.

[312] That seems to indicate that our system of fatal accident inquiries has worked (apparently well) for many years without any need for a power to award expenses.

[313] If anything, that supports the petitioner's view.

 

Parliamentary materials?

[314] I derived little assistance from the Parliamentary materials referred to by the petitioner.

[315] Those materials suggested that there might be "unnecessary" fatal accident inquiries which were nevertheless still in the public interest.

[316] Those materials would not, in themselves, have persuaded me to find in the petitioner's favour.

[317] "Safety" is clearly important in the public interest - but that can be deduced from the Act itself without the need to resort to Parliamentary material.

 

Legal Aid and Funding?

[318] There was much discussion about Legal Aid and funding.

[319] In essence, I was not persuaded by the Interested Parties submissions and I was not satisfied that they supported the argument in favour of competency.

[320] On the contrary, if there is any perceived deficiency in the present system regarding Legal Aid or funding then those issues can and should be rectified by Parliament rather than by a sheriff or a judge.

[321] That approach would be consistent with Sheriff Jessop's comments in Cormorant Alpha under the heading of "Legal Aid" [Production 6/25 at pages 74-75].

[322] As previously noted, Sheriff Jessop proceeded on the basis that "no provision was made in the Fatal Accident Inquiry provisions for payment of expenses".

[323] I also agree with Sheriff Risk who formed the view in Brent Spar that he had no power to make a recommendation as to the making of an ex gratia award of expenses from public funds. [Production 6/24 - at pages 73-74].

[324] In any event, I do not agree with counsel for the interested parties when he said that the distinction between (a) an award of expenses and (b) the provision of funding is:- "a distinction without a difference since both are simply monies to pay for one's lawyers".

[325] There is a clear difference - albeit one that may not be critical in the present case.

[326] An award of expenses is not just "monies to pay for one's lawyers".

[327] It is a specific finding, where appropriate, that a litigant is entitled to some or all of his expenses from another party or parties on a specified basis and on an appropriate scale. The monies necessary to "fund" litigation include extra-judicial expenses, potential liabilities and irrecoverable items.

[328] It is of greater significance to note that, in any event, the submissions for the interested parties proceed on the basis that the court's alleged duty to make an award of expenses arises "if the administration has not made provision for funding in FAI's so as to comply with Convention requirements".

[329] If there is an unmet need in relation to legal aid for representation at fatal accident inquiries, then in my view that is best addressed by Parliament.

 

Additional Fees?

[330] The submissions for the interested parties in relation to additional fees are, in my opinion, not well founded.

[331] It is not entirely correct to say that prior to 2003 "the sheriff had the power to award expenses under the regulations".

[332] The allowance of an additional fee is not "an award of expenses".

[333] Indeed it need not involve any party / party account.

[334] I am not dealing with an agent / client situation.

[335] In any event, the Legal Aid Regulations were amended in 2003. [Production 6/36].

[336] In overview, provisions relating to additional fees, and agent/client fees provide little assistance in relation to competency and I am not satisfied that those provisions have the result suggested by the interested parties.

 

Ad hoc chairmen?

[337] I agree with the interested parties that the powers of an ad hoc chairman under the now repealed 1895 Act do little to assist in the determination of the present case.

[338] That does not mean, however, that the interested parties other contentions are correct.

 

Assessors?

[339] I am not persuaded that the possibility of an assessor being appointed gives rise to any inference which assists with the question of competency.

 

Evidence on Oath?

[340] The fact that a sheriff has power to put witnesses on oath in a fatal accident inquiry does not, in my view, detract from the conclusion that it is not competent to award expenses in a fatal accident inquiry.

[341] In this context, the interested parties refer to Chapters 29 and 32 of the Sheriff Court Ordinary Cause Rules. Chapter 29 of those Rules relates to "Proof". Chapter 32 relates to "Taxation of Expenses". I am dealing with a different question, namely, the competency of "an award of expenses".

[342] The power to put witnesses on oath clearly exists - and always has done.

[343] The power to award expenses does not exist - in a fatal accident inquiry - and never has done.

 

Oppression?

[344] The submissions by the interested parties in relation to what was described as "oppression" and "vexatious" conduct by the Crown have caused me considerable anxious reflection.

[345] In light of the conduct of the Crown in this particular case, I would have had no hesitation in reaching the same conclusion as the sheriff - but for the question of competency.

[346] Clearly, it is unacceptable that the Crown should ever act in such a way as to attract the criticisms which have been levelled against the Crown by Sheriff Cowan in this particular case.

[347] However, it does not follow that it is competent or in the public interest to make an award of expenses in a fatal accident inquiry.

[348] In my view, and essentially for the reasons outlined by the petitioner, it was not competent for the sheriff to award expenses.

 

Public interest?

[349] I am not persuaded that "it is in the public interest an award be made in this case".

[350] It may well be in the private interests of the interested parties in this case but I am not satisfied that it is in the public interest to do so.

[351] In my view, it is neither appropriate nor desirable to treat this highly exceptional case as a reason for departing from the traditional model of a fatal accident inquiry - which is sui generis, non-adversarial and expenses-neutral - particularly if it is not clear what should replace it in other cases.

[352] The ultimate decision may be one of policy.

[353] Improved "funding" may widen access and increase participation at fatal accident inquiries - but once seated at the table it seems to me that parties should continue to have the relative certainty of knowing that they are in an "expenses neutral" environment.

[354] If that principle is to be departed from or replaced or modified - then that should be done by Parliament and not by a judge looking at this one highly unusual case or, more accurately, only part of it.

[355] The circumstances of this particular case may never occur again - it is to be hoped.

[356] On the other hand, the approach favoured by the interested parties may create more problems than it solves.

[357] It has the potential to encourage argument and uncertainty - even after the statutory determination has been issued (as in the present case).

[358] I am not persuaded that such innovations are to be welcomed - far less encouraged or introduced by a judge.

[359] The focus, as at present, should be on establishing the facts with a view to promoting safety.

[360] Although not necessary for my decision (or any part of it), I should add that I find it a little difficult to apply the description "vexatious" to parties appearing at a fatal accident inquiry.

 

Result

[361] In the result, and in the whole circumstances, I agree with the Petitioner.

[362] In my view, the sheriff has fallen into error - for the reasons mentioned above.

[363] The matters now founded upon by the Crown were simply not brought to the attention of Sheriff Cowan.

[364] In my opinion, the award of expenses was not competent.

 

Decision

[365] Accordingly, I will sustain the first plea-in-law for the petitioner (to the extent aftermentioned); I will repel the first and second pleas-in-law for the Interested Parties; I shall grant decree of declarator that the finding by Sheriff Cowan dated 14 December 2004 in respect of the expenses at the fatal accident inquiry into the death of William Geddes Smith was ultra vires and I shall reduce that finding.

[366] I will also put the case out By Order in relation to the question of expenses of and incidental to the present proceedings.

[367] The question of whether the Interested Parties have any other remedies available to them is not a matter that I can determine.

 

 


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