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Act of Sederunt (Fatal Accident Inquiry Rules) 2017

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Rule 4.4

SCHEDULE 5GATHERING INFORMATION

Application of this schedule

1.  This schedule applies to the gathering of information by a participant in an inquiry.

Confidentiality

2.—(1) This paragraph applies to information recovered under—

(a)paragraph 5 (optional procedure); or

(b)paragraph 6 (execution of commission and diligence).

(2) Where confidentiality is claimed for any information sought to be recovered such information is to be, where practicable, enclosed in a sealed packet.

(3) An application to have a sealed packet opened up may be made by—

(a)the participant who obtained the commission and diligence; or

(b)any other participant after the date of intimation by the sheriff clerk under paragraph 6(10) (intimation of failure to uplift documents).

(4) Intimation of such an application must also be given to the haver.

(5) The person claiming confidentiality may oppose the application.

Warrants for production of original documents from public records

3.—(1) Where a participant (other than the procurator fiscal) seeks to obtain from the keeper of any public record production of the original of any register or deed in his or her custody for the purposes of an inquiry, that participant must apply to the sheriff.

(2) Intimation of an application under subparagraph (1) must be given to the keeper of the public record concerned at least 7 days before the application is lodged.

(3) In relation to a public record kept by the Keeper of the Registers of Scotland or the Keeper of the Records of Scotland, where it appears to the sheriff that it is necessary for the purpose of the inquiry that an application under this rule should be granted, the sheriff must make an order containing a certificate to that effect;

(4) The participant applying for production may then request by letter (enclosing a copy of the order certified by the sheriff clerk), addressed to the Deputy Principal Clerk of Session, for an order from the Court of Session authorising the Keeper of the Registers or the Keeper of the Records, as the case may be, to exhibit the original of any register or deed to the sheriff.

(5) The Deputy Principal Clerk of Session must submit the application sent under subparagraph (4) to the Lord Ordinary in chambers who, if satisfied, may grant a warrant for production or exhibition of the original register or deed sought.

(6) A certified copy of the warrant granted under subparagraph (5) must be intimated to the keeper of the public record concerned.

Applications for commission and diligence

4.—(1) A participant may apply for a commission and diligence for the recovery of a document or other property.

(2) That application must specify the document or other property sought to be inspected, photographed, preserved, taken, detained, produced recovered, sampled or experimented with or upon, as the case may be.

(3) Where the document or other property sought is in the possession of a public authority exercising functions in relation to reserved matters within the meaning of schedule 5 of the Scotland Act 1998(1), or a cross-border public authority within the meaning of section 88(5) of that Act, the application must be intimated on the Advocate General for Scotland.

(4) Where the document or other property sought is otherwise in the possession of a public authority, the application must be intimated on the Lord Advocate.

(5) The Advocate General for Scotland or the Lord Advocate (as the case may be) may appear at the hearing of that application.

Optional procedure before executing commission and diligence

5.—(1) A participant who has obtained a commission and diligence may, before executing it, intimate on the haver an order in Form S5.5A.

(2) The haver must comply with the order in the manner and within the period set out in the order.

(3) Not later than the day after the date on which the order, and any document recovered, is received from a haver by the participant who obtained the order, that participant—

(a)must give written intimation of that fact in Form S5.5B to the sheriff clerk and every other participant; and

(b)must—

(i)if the document has been sent by post, send a written receipt for the document in Form S5.5C to the haver; or

(ii)if the document has been delivered by hand, give a written receipt in Form S5.5C to the person delivering the document.

(4) Where the participant who has recovered any such document does not lodge it within 14 days of receipt of it, that participant must—

(a)give written intimation to every participant that they may borrow, inspect or copy the document within 14 days after the date of that intimation; and

(b)in so doing, identify the document.

(5) Where a participant who has obtained any document wishes to lodge the document in process, that participant must—

(a)lodge the document within 14 days after receipt of it; and

(b)at the same time, send a written receipt for the document in Form S5.5C to the participant who obtained the order.

(6) Where—

(a)no participant wishes to lodge or borrow any such document, the document is to be returned to the haver by the participant who obtained the order within 14 days after the expiry of the period specified in subparagraph (4)(a); or

(b)any such document has been uplifted by another participant under subparagraph (4) and that participant does not wish to lodge it in process, the document must be returned to the haver by that participant within 21 days after the date of receipt.

(7) Any such document lodged is to be returned to the haver by the participant lodging it within 14 days after the date of the sheriff’s determination.

(8) If any participant fails to return any such document as provided for in subparagraph (6) or (7), the haver may apply for an order—

(a)that the document is to be returned to the haver; and

(b)for that participant to make a payment to the have to reflect the consequences of the document not being returned.

(9) The participant holding any such document (being the participant who last issued a receipt for it) is responsible for its safekeeping during the period that the document is in his or her custody or control.

(10) If the participant who intimated the order is not satisfied that—

(a)full compliance has been made with the order; or

(b)adequate reasons for non-compliance have been given, that participant may execute the commission and diligence under paragraph 4.

(11) Where an extract from a book of any description (whether the extract is certified or not) is produced under the order, the sheriff may, on the application of the participant who intimated the order, direct that that participant may inspect the book and take copies of any entries falling with the specification.

(12) Where any question of confidentiality arises in relation to a book directed to be inspected under subparagraph (11), the inspection must be made, and any copies taken, at the sight of the commissioner appointed in the order granting the commission and diligence.

(13) The sheriff may order the production of any book (not being a banker’s book or book of public record) containing entries falling under a specification, notwithstanding the production of a certified extract from that book.

Execution of commission and diligence

6.—(1) A participant executing a commission and diligence must—

(a)provide the commissioner with—

(i)a copy of the specification;

(ii)a copy of the first notice;

(iii)a copy of the first order; and

(iv)and a certified copy of the order containing the commissioner’s appointment; and

(b)instruct the clerk and any shorthand writer considered necessary by the commissioner or any participant; and

(c)be responsible for the fees of the commissioner and his or her clerk, and of any shorthand writer.

(2) The commissioner must, in consultation with the participants, fix a diet for the execution of the commission.

(3) The order granting such a commission and diligence is sufficient authority for citing a haver to appear before the commissioner.

(4) A citation in Form S5.6A must be intimated on the haver with a copy of the specification and, where necessary for a proper understanding of the specification, a copy of the first notice; and the participant citing the haver must lodge a certificate of citation in Form S5.6B.

(5) The participants and the haver are entitled to be represented by a solicitor or person having a right of audience before the sheriff at the execution of the commission.

(6) At the commission, the commissioner must-

(a)administer the oath de fideli administratione to any clerk and any shorthand writer appointed for the commission; and

(b)administer to the haver the oath or affirmation.

(7) The report of the execution of the commission and diligence, any document recovered and an inventory of that document, must be sent by the commissioner to the sheriff clerk.

(8) The sheriff clerk must intimate receipt of the documents to the participants not later than the day after the date on which such a report, document and inventory, if any, are received.

(9) No participant, other than the participant who intimated the order, may uplift such a document until after the expiry of 7 days after the date of intimation under subparagraph (8).

(10) Where the participant who intimated the order fails to uplift such a document within 7 days after the date of intimation under subparagraph (8), the sheriff clerk must intimate that failure to every other participant.

(11) Where no participant has uplifted such a document within 14 days after the date of intimation under subparagraph (10), the sheriff clerk must return it to the haver.

(12) Where a participant who has uplifted such a document does not wish to lodge it, that participant must return it to the sheriff clerk who must—

(a)intimate the return of the document to every other participant; and

(b)if no other participant uplifts the document within 14 days of the date of intimation, return it to the haver.

Letters of request

7.—(1) This paragraph—

(a)applies to an application for a letter of request to a court or tribunal outside Scotland to obtain evidence of a kind specified in subparagraph (2); and

(b)does not apply to a request for the taking of evidence under the Council Regulation.

(2) An application may be made in relation to a request—

(a)for the examination of a witness;

(b)for the inspection, photographing, preservation, custody, detention, production or recovery of, or the taking of samples of, or the carrying out of any experiment on or with, a document or other property, as the case may be;

(c)for the medical examination of any person;

(d)for the taking and testing of samples of blood from any person; or

(e)for any other order for obtaining evidence,

for which an order could be obtained from the sheriff.

(3) Such an application must be made in Form S5.11A together with a proposed letter of request in Form S5.11B.

(4) The sheriff may order the participant making the application to consign a sum with the sheriff clerk in respect of the costs payable relating to the letter of request.

(5) Unless the court or tribunal to which a letter of request is addressed is a court or tribunal in a country or territory-

(a)where English is an official language; or

(b)in relation to which the sheriff clerk certifies that no translation is required,

then the applicant must, before the issue of the letter of request, lodge in the official language of the court or tribunal, a translation of that letter and any interrogatories and cross-interrogatories.

(6) The sheriff clerk must forward to the Scottish Ministers, or to such other person as the sheriff may direct—

(a)the letter of request, when issued;

(b)any interrogatories and cross-interrogatories as adjusted; and

(c)the translations (if any).

Information given on commission

8.—(1) On cause shown, the sheriff may order that the testimony of a witness is to be taken by a commissioner.

(2) The commission is to proceed without interrogatories unless the sheriff otherwise orders.

(3) The order of the sheriff authorising the commission is sufficient authority for citing the witness to appear before the commissioner.

(4) The participant who cited the witness—

(a)must give the commissioner—

(i)a certified copy of the order of the sheriff appointing the commissioner;

(ii)where paragraph 9 applies, the approved interrogatories and cross-interrogatories;

(b)must instruct the clerk to the commission; and

(c)is responsible in the first instance for the fee of the commissioner and the clerk.

(5) The commissioner is to fix a hearing at which the commission will be carried out.

(6) The commissioner must consult the participants before fixing the hearing.

(7) A participant may apply for leave to be present in the room where the commission is carried out.

Testimony by commissioner: interrogatories

9.—(1) This paragraph applies where the sheriff—

(a)authorises testimony by commissioner;

(b)orders that interrogatories are to be prepared.

(2) When the sheriff makes an order for interrogatories to be prepared, the sheriff is to specify the periods within which participants must comply with the steps in this paragraph.

(3) The participant who cited the witness must lodge draft interrogatories in process.

(4) Any other participant may lodge cross-interrogatories.

(5) The participants may adjust their interrogatories and cross-interrogatories.

(6) At the expiry of the adjustment period, the participants must lodge the interrogatories and cross-interrogatories as adjusted with the sheriff.

(7) The sheriff is to resolve any dispute as to the content of the interrogatories and cross-interrogatories, and approve them.

Testimony by commissioner: conduct of commission

10.—(1) The commissioner is to administer the oath de fideli administratione to the clerk.

(2) The commissioner is to administer the oath or affirmation to the witness.

Testimony by commissioner: lodging and custody of video record and documents

11.—(1) The commissioner is to lodge the video record of the commission and any relevant documents with the sheriff clerk.

(2) When the video record and any relevant document are lodged, the sheriff clerk is to notify every participant—

(a)that the video record has been lodged;

(b)whether any relevant documents have been lodged; and

(c)of the date on which they were lodged.

(3) The video record and any relevant documents are to be kept by the sheriff clerk.

(4) Where the video record has been lodged—

(a)the name and address of the witness and the record of the information given are to be treated as being in the knowledge of the participants;

(b)the participants need not include—

(i)the name of the witness in any list of witnesses; or

(ii)the record in any list of productions.

Taking of evidence in the EU

12.—(1) This paragraph applies to any request—

(a)for the competent court of another member State to take evidence under Article 1.1(a) of the Council Regulation; or

(b)that the court should take evidence directly in another member State under Article 1.1(b) of the Council Regulation.

(2) An application is made by minute in Form S5.12, together with the proposed request in form A or I (as the case may be) in the Annex to the Council Regulation.

(1)

1998 c.46, last amended by the Scotland Act 2016 (c.11).

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