Oral evidence should be norm at FAIs, Faculty argues

Oral evidence should continue to be the norm at fatal accident inquires in preference to witness statements, although the latter have their place, the Faculty of Advocates believes.

Faculty has issued its response to a consultation on draft rules to be made under the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016, in which provision is made for witnesses to give evidence in chief by a statement.

In the consultation, the Scottish Civil Justice Council (SCJC) posed the question whether witness statements should be a default which the sheriff can order not to apply, or whether the converse presumption should apply with participants having to argue in favour of witness statements.

Faculty stated in response: “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 other answers, Faculty states 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.”

It comments that the proposed 28 day timescales for holding the preliminary hearing and the inquiry following the first order "may prove challenging in some cases", especially for unrepresented participants, but remains of the view that "strict timescales which are tempered by sensible use of some judicial discretion provide the best balance".

Faculty further agrees that judicial continuity should be an aim in every inquiry, though may be easier to achieve in some sheriffdoms than others, but is "unclear" why the sheriff should have power to require participants to lead particular witnesses and how it would apply in practice.

Click here to view the full response.