A place for statements, but oral evidence should be FAI norm, Faculty believes

In a consultation on draft rules for the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016, the Scottish Civil Justice Council (SCJC) said provision was made for witnesses to give evidence-in-chief by a statement.

“The question is whether witness statements should be a default which the sheriff can order not to apply or whether the converse presumption should apply. It is a question of whether participants should have to argue in favour of witness statements in circumstances where they are particularly appropriate, or whether participants should be identifying witnesses whose evidence is not, for whatever reason, appropriately given by witness statement,” the SCJC said.

In its response, the Faculty stated: “The Faculty favours the first form of wording whereby oral evidence is the norm. We do so because we consider that FAIs perform a valuable function in which investigation of the death of a member of the public takes place in a public forum. Oral evidence serves that function in a way that adopted written evidence may not.”

It added: “The Faculty’s understanding of rule 4.11 is that the written statement will still need to be adopted on oath by the witness, such that the main saving in time relates to examination in chief. The witness will still be cross-examined.

“We accept that written statements should be used in FAIs but we do wish to underline that written statements work best where there is a clear understanding of how they are to be prepared; when they can be disclosed to other potential witnesses; and whether supplementary witness statements are to be permitted. Some guidelines or protocol could usefully be produced for written statements in FAIs.”

In another suggestion, the Faculty said that at the preliminary hearing in an FAI, the sheriff could consider the use of technology, including live link, for the taking of evidence.

“We are envisaging that there will be some cases in which technology may be used by way of reconstructions or document management, and where the early discussion of the systems to be used in the inquiry may save time and expense.”