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Act of Sederunt (Fatal Accident Inquiry Rules) 2017

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Rule 1.2(1)

SCHEDULE 1APPLICATIONS

Interpretation

1.  In this schedule—

“lodging participant” means the person lodging the application;

“receiving participant” means a participant receiving the intimation of the application from the lodging participant.

Making of applications

2.  An application may be made—

(a)orally; or

(b)in writing, in accordance with paragraph 3.

Written applications

3.—(1) An application in writing is made by lodging it.

(2) An application in writing must set out the grounds on which it is made.

Intimation of applications in writing

4.—(1) The lodging participant must give intimation of an intention to lodge the application, and of the terms of the application, to every other participant in Form S1.4.

(2) That intimation must be accompanied by a copy of any document referred to in the application.

Opposition to applications in writing

5.—(1) A receiving participant may oppose an application by lodging a notice of opposition in Form S1.5.

(2) Any notice of opposition must be lodged within 7 days after the date of intimation of the application.

(3) The sheriff may, on the request of a participant—

(a)vary the period of 7 days mentioned in subparagraph (2); or

(b)dispense with intimation on any participant.

(4) A request mentioned in subparagraph (3) must—

(a)be included in the application; and

(b)give reasons for varying the period or dispensing with intimation, as the case may be.

(5) The sheriff may allow a notice of opposition to be lodged late, on cause shown.

Consent to applications in writing

6.  A receiving participant may consent to an application by lodging a notice to that effect.

Lodging of applications in writing

7.—(1) The application must be lodged by the lodging participant within 5 days after the date of intimation of the application, unless subparagraph (3) applies.

(2) The lodging participant must also lodge—

(a)a certificate of intimation in Form S1.7; and

(b)so far as practicable, any document referred to in the application that has not already been lodged.

(3) Where the sheriff varies the period for lodging a notice of opposition to a period of 5 days or less, the application must be lodged no later than the day on which that period expires.

Joint applications in writing

8.—(1) A joint application by all participants need not be intimated.

(2) A joint application may be lodged by any of the participants.

Hearing of opposed applications in writing

9.—(1) Where a notice of opposition is lodged, the application is to be heard by the sheriff on the first suitable court day after lodging.

(2) The sheriff clerk must intimate the date and time of the hearing to the participants.

Rule 1.2(1)

SCHEDULE 2INTIMATION

PART 1Intimation within Scotland

Interpretation

1.  In this schedule—

“first class post” means a postal service which seeks to deliver documents or other things by post no later than the next working day in all or the majority of cases;

“intimating participant” means any participant who has to give intimation in accordance with paragraph 2;

“receiving participant” means any participant to whom intimation is to be given; and

“recorded delivery” means a postal service which provides for the delivery of the document or other thing by post to be recorded.

Intimation

2.—(1) Unless the sheriff orders otherwise, intimation is to be given to every other participant where any provision in these Rules requires a participant to—

(a)intimate something; or

(b)lodge something.

(2) The sheriff clerk must intimate an order of the sheriff to every participant when the sheriff makes an order other than at a hearing where all participants are present or represented.

Methods of intimation

3.—(1) Intimation may be given to a receiving participant by any of the methods specified in paragraphs 4 and 5.

(2) Where the receiving participant is represented by a solicitor, intimation may also be given by any of the methods specified in paragraph 6.

(3) Where the receiving participant is furth of Scotland, intimation must be given in accordance with Part 2 of this schedule.

Methods of intimation: intimation by recorded delivery

4.  An intimating participant may give intimation by recorded delivery to the receiving participant.

Methods of intimation: intimation by sheriff officer

5.—(1) A sheriff officer may give intimation on behalf of an intimating participant by—

(a)delivering the intimation personally to the receiving participant; or

(b)leaving the intimation in the hands of—

(i)a resident at the receiving participant’s dwelling place; or

(ii)an employee, agent or representative at the receiving participant’s place of business.

(2) Where a sheriff officer has been unsuccessful in intimation in accordance with subparagraph (1), the sheriff officer may give intimation by—

(a)depositing it in the receiving participant’s dwelling place or place of business; or

(b)leaving it at the receiving participant’s dwelling place or place of business in such a way that it is likely to come to the attention of that participant.

Additional methods of intimation where receiving participant represented by solicitor

6.—(1) An intimating participant may give intimation to the solicitor for the receiving participant by—

(a)delivering it personally to the solicitor;

(b)delivering it to a document exchange of which the solicitor is a member;

(c)first class post;

(d)fax; or

(e)email.

(2) Where intimation is given by the method in subparagraph (1)(a), (d) or (e) not later than 1700 hours on any day, the date of intimation is that day.

(3) Where intimation is given by the method in—

(a)subparagraph (1)(b) or (c); or

(b)subparagraph (1)(a), (d) or (e) after 1700 hours on any day,

the date of intimation is the next day.

Form of certificate of intimation

7.  A certificate of intimation is to be in S2.7.

PART 2Intimation furth of Scotland

Interpretation of this Part

8.  In this Part—

“consular service” is to be construed in accordance with paragraph 15;

EU member State” means a State which is a member of the European Union, within the meaning of Part II of Schedule 1 of the European Communities Act 1972(1);

“Hague Convention country” means a country in respect of which the Convention of 15th November 1965 on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters is in force, other than an EU member State(2);

“personal service” is to be construed in accordance with paragraph 16;

“postal service” is to be construed in accordance with paragraph 17; and

“Service Regulation” means Regulation (EC) No. 1393/2007 of the European Parliament and of the Council of 13th November 2007 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters (service of documents), and repealing Council Regulation (EC) No. 1348/2000(3), as amended from time to time.

Intimation furth of Scotland

9.—(1) Intimation of a document furth of Scotland is to be effected in accordance with this paragraph.

(2) If the person’s known residence or place of business is in England and Wales, Northern Ireland, the Isle of Man or the Channel Islands, see paragraph 10.

(3) If the person’s known residence or place of business is in an EU member State (including Denmark), see paragraph 11.

(4) If the person’s known residence or place of business is in a Hague Convention country (other than an EU member State), see paragraph 12.

(5) If the person’s known residence or place of business is in a country with which the United Kingdom has a convention about how to serve court documents (such as Algeria, Libya and the United Arab Emirates), see paragraph 13.

(6) If none of the above applies, see paragraph 14.

Service in England and Wales etc.

10.—(1) A document may be intimated in England and Wales, Northern Ireland, the Isle of Man or the Channel Islands by—

(a)postal service; or

(b)personal service.

(2) Personal service may be effected by a person who is authorised to do so under the domestic law of the place where the document is to be served.

Service in an EU member State

11.—(1) A document may be intimated in an EU member State (including Denmark) under the Service Regulation by—

(a)postal service;

(b)service by transmitting agency;

(c)direct service, where the law of the member State permits it; or

(d)consular service.

(2) Service by transmitting agency may be effected by sending the document to a messenger-at-arms and instructing them to arrange for it to be served.

(3) Direct service may be effected by sending the document to a person who is entitled to serve court documents in that member State and asking them to arrange for it to be served.

(4) Where service is to be effected by transmitting agency, the participant must give the messenger-at-arms a translation of the document into a language which the recipient understands or an official language of the member State where the document is to be served.

Service in a Hague Convention country

12.—(1) A document may be intimated in a Hague Convention country (other than an EU member State) by—

(a)postal service, where the law of the country permits it;

(b)service via central authority;

(c)consular service; or

(d)service by competent person, where the law of the country permits it.

(2) Service via central authority may be effected by sending the document to the Scottish Ministers and asking them to arrange for it to be served.

(3) Service by competent person may be effected by sending the document to a person who is entitled to serve court documents in that country and asking them to arrange for it to be served.

(4) Any document must be accompanied by a translation into an official language of the country where it is to be served, unless English is an official language of that country.

Service in a country with which the United Kingdom has a convention about how to serve court documents

13.  A document may be intimated in a country with which the United Kingdom has a convention about how to serve court documents by any method that is permitted by the convention.

Service in any other country

14.—(1) Where none of paragraphs 10 to 13 apply, a document may be intimated by—

(a)postal service; or

(b)personal service.

(2) Where intimation is effected by personal service, the participant executing service must lodge a certificate stating that the method of service employed is in accordance with the law of the country where service was executed.

(3) That certificate is to be given by a person who—

(a)practises or has practised law in that country; or

(b)is an accredited representative of that country’s government, conversant with the law of that country.

Consular service

15.—(1) Consular service is service by a British consular authority.

(2) Consular service may be effected only if—

(a)the law of the State where the document is to be served permits it; or

(b)the document is being served on a British national.

(3) Consular service may be effected by sending the document to the Secretary of State for Foreign and Commonwealth Affairs and asking the Secretary of State to arrange for it to be served by a British consular authority.

Personal service

16.—(1) Personal service is service using the rules for personal service under the domestic law of the place where the document is to be served.

(2) Personal service may be effected by a person who is authorised to do so under the domestic law of the place where the document is to be served.

Postal service

17.—(1) Postal service is service by posting the document to the person’s home or business address using a postal service which records delivery.

(2) Postal service may be effected by a solicitor or a sheriff officer.

(3) Where postal service is used, the envelope containing the document must have the following label printed or written on it—

THIS ENVELOPE CONTAINS A (name of document) FROM (name of sheriff court), SCOTLAND
IF DELIVERY CANNOT BE MADE, THE LETTER MUST BE RETURNED TO THE SHERIFF CLERK AT
(full address of sheriff court).

(4) That label must be translated into an official language of the country where the document is to be served, unless English is an official language of that country.

Certification of translations

18.—(1) This paragraph applies where this schedule requires a document to be translated into a language other than English.

(2) The participant executing service must lodge a certificate stating that the translation is correct.

(3) That certificate—

(a)is to be given by the person who made the translation; and

(b)must include the full name, address and qualifications of the translator.

Rule 1.4

SCHEDULE 3FORMS

Rule 1.5

SCHEDULE 4MISCELLANEOUS AND GENERAL MATTERS

Lodging

1.—(1) Where these Rules require something to be lodged or the sheriff orders something to be lodged, it must be lodged with the sheriff clerk.

(2) Something may be lodged by—

(a)delivering it personally to the sheriff clerk’s office;

(b)delivering it to a document exchange of which the sheriff clerk is a member;

(c)delivering it using a postal service which seeks to deliver documents or other things by post no later than the next working day in all or the majority of cases;

(d)fax; or

(e)another method ordered by the sheriff.

Live links

2.—(1) In this rule—

“live link” means—

(a)

a live television link; or

(b)

where the sheriff gives permission, an alternative arrangement; and

“submission” means any oral submission which would otherwise be made to the sheriff by a participant or that participant’s representative, including an oral submission in support of an application.

(2) A participant may apply to the sheriff to use a live link to make a submission or to present information.

(3) Where a participant seeks to use an alternative arrangement, the application must specify the proposed arrangement.

(4) The sheriff must not grant an application to use an alternative arrangement unless the person using the live link is able to—

(a)be heard in the courtroom; and

(b)hear the proceedings in the courtroom.

Reporting restrictions

Reporting restrictions: interpretation and application

3.—(1) Paragraphs 4 to 7 apply to orders which restrict the reporting of proceedings, whether under section 22(2) (publishing restrictions in relation to children) or otherwise.

(2) In those paragraphs, “interested person” means a person—

(a)who has asked to see any order made by the sheriff which restricts the reporting of proceedings, including an interim order; and

(b)whose name is included on a list kept by the Lord President of the Court of Session for the purposes of paragraphs 4 to 7.

Interim orders: notification to interested persons

4.—(1) Where the sheriff is considering making an order, the sheriff may make an interim order.

(2) Where the sheriff makes an interim order, the sheriff clerk must immediately send a copy of the interim order to any interested person.

(3) The sheriff is to specify in the interim order why the sheriff is considering making an order.

Interim orders: representations

5.—(1) Subparagraph (2) applies where the sheriff has made an interim order.

(2) An interested person who would be directly affected by the making of an order is to be given an opportunity to make representations to the sheriff before the order is made.

(3) Representations are to—

(a)be made in Form S4.5;

(b)include reasons why an urgent hearing is necessary, if an urgent hearing is sought; and

(c)be lodged no later than 2 days after the interim order is sent to interested persons.

(4) If representations are made—

(a)the sheriff is to appoint a date and time for a hearing—

(i)on the first suitable court day; or

(ii)where the sheriff considers that an urgent hearing is necessary, at an earlier date and time;

(b)the sheriff clerk must—

(i)notify the date and time of the hearing to the participants to the proceedings and any person who has made representations; and

(ii)send a copy of the representations to the participants.

(5) Where no interested person makes representations in accordance with paragraph (3), the sheriff clerk is to put the interim order before the sheriff in chambers in order that the sheriff may resume consideration of whether to make an order.

(6) Where the sheriff, having resumed consideration, makes no order, the sheriff must recall the interim order.

(7) Where the sheriff recalls an interim order, the sheriff clerk must immediately notify any interested person.

Notification of reporting restrictions

6.  Where the sheriff makes an order, the sheriff clerk must immediately—

(a)send a copy of the order to any interested person; and

(b)arrange for the publication of the making of the order on SCTS’s website.

Applications for variation or revocation

7.—(1) A person aggrieved by an order may apply to the sheriff for its variation or revocation.

(2) An application is to be made in Form S4.7.

(3) When an application is made—

(a)the sheriff is to appoint a date and time for a hearing; and

(b)the sheriff clerk must—

(i)notify the date and time of the hearing to the participants to the proceedings and the applicant; and

(ii)send a copy of the application to the participants.

(4) The hearing is, so far as reasonably practicable, to be before the sheriff who made the order.

The style of oath and affirmation

Oaths

8.  The style of the oath is—

“I swear by Almighty God that I will tell the truth, the whole truth and nothing but the truth”.

Affirmations

9.  The style of the affirmation is—

“I solemnly, sincerely and truly declare and affirm that I will tell the truth, the whole truth and nothing but the truth”.

Interventions

Interventions by the Commission for Equality and Human Rights and the Scottish Commission for Human Rights

10.  Paragraphs 11 to 14 apply to—

(a)interventions in legal proceedings by the Commission for Equality and Human Rights under section 30(1) of the Equality Act 2006(4);

(b)interventions in civil proceedings by the Scottish Commission for Human Rights under section 14(2) of the Scottish Commission for Human Rights Act 2006(5).

Applications to intervene

11.—(1) An application for leave to intervene is to be made in writing.

(2) The participants or the applicant may request a hearing on the application to intervene within 14 days after the application is lodged.

(3) Where a hearing is requested—

(a)the sheriff is to appoint a date and time for a hearing;

(b)the sheriff clerk must notify the date and time of the hearing to the participants and the applicant.

(4) Where no hearing is requested, the sheriff may appoint a date and time for a hearing of the sheriff’s own accord and the sheriff clerk must notify the date and time of the hearing to the participants and the applicant.

Determination of applications

12.—(1) The sheriff may determine an application for leave to intervene without a hearing, unless a hearing is fixed under paragraph 11(3) or (4).

(2) In an application for leave to intervene under section 30(1) of the Equality Act 2006, the sheriff may grant leave only if satisfied that the proposed submissions are likely to assist the sheriff.

(3) Where the sheriff grants leave to intervene, the sheriff may impose any conditions that the sheriff considers desirable in the interests of the efficient administration of the inquiry.

(4) When an application is determined, the sheriff clerk must notify the participants and the applicant of the outcome.

Invitations to intervene

13.—(1) An invitation to intervene under section 14(2)(b) of the Scottish Commission for Human Rights Act 2006(6) is to be in writing.

(2) The sheriff clerk must send a copy of the invitation to the participants and to the Scottish Commission for Human Rights together with—

(a)a copy of the first order; and

(b)any other documents relating to the inquiry that the sheriff considers to be relevant.

(3) Where the sheriff invites the intervention, the sheriff may impose any conditions that the sheriff considers desirable to further the purpose of the inquiry.

Form of intervention

14.—(1) An intervention is by written submission.

(2) A written submission (including any appendices) must not exceed 5,000 words.

(3) The intervener must lodge the written submission within such time as the sheriff may direct.

(4) In exceptional circumstances, the sheriff may allow—

(a)a written submission exceeding 5,000 words to be made;

(b)an oral submission to be made.

(5) Where the sheriff allows an oral submission to be made, the sheriff is to appoint a date and time for the submission to be made.

(6) The sheriff clerk must notify that date and time to the participants and the intervener.

Lay representation and support

Lay representation: applications

15.—(1) In paragraphs 15 to 18 a reference to a participant is a reference to a participant other than a procurator fiscal.

(2) A participant who is an individual may be represented by a lay representative.

(3) A participant is represented by a lay representative if that participant is represented by a person who is not a solicitor or an advocate.

(4) A participant may apply to the sheriff for permission to be represented by a lay representative.

(5) The sheriff may grant an application only if it is considered that it would assist the effective administration of the inquiry to do so.

(6) Where the sheriff grants permission, the sheriff may—

(a)do so in respect of one or more specified hearings; and

(b)withdraw permission of the sheriff’s own accord or on the application of any participant.

Lay representation: functions, conditions and duties

16.—(1) A participant must appear along with the lay representative at any hearing where the lay representative is to make oral submissions.

(2) A participant may show any document or communicate any information about the inquiry proceedings to that participant’s lay representative without contravening any prohibition or restriction on disclosure of the document or information.

(3) Where a document or information is disclosed under subparagraph (2), the lay representative is subject to any prohibition or restriction on disclosure in the same way that the participant is.

(4) A lay representative must not receive directly or indirectly from the participant any remuneration or other reward for assisting the participant.

Lay support: application

17.—(1) A participant who is an individual may apply to the sheriff for permission for a named person to assist the participant in the conduct of inquiry proceedings, and such a person is to be known as a lay supporter.

(2) The sheriff may refuse an application only if in the sheriff’s opinion—

(a)the named person is an unsuitable person to act as a lay supporter (whether generally or in the proceedings concerned); or

(b)it would be contrary to the efficient administration of the inquiry to grant it.

(3) The sheriff, if satisfied that it would be contrary to the efficient administration of the inquiry for permission to continue, may withdraw permission—

(a)of the sheriff’s own accord; or

(b)on the application of any participant.

Lay support: functions, conditions and duties

18.—(1) A lay supporter may assist a participant by accompanying the participant at inquiry hearings.

(2) A lay supporter may, if authorised by the participant, assist the participant by—

(a)providing moral support;

(b)helping to manage inquiry documents and other papers;

(c)taking notes of the inquiry proceedings; and

(d)quietly advising on—

(i)points of law and procedure; and

(ii)issues which the participant might wish to raise with the sheriff.

(3) A participant may show any document or communicate any information about the inquiry proceedings to that participant’s lay supporter without contravening any prohibition or restriction on disclosure of the document or information.

(4) Where a document or information is disclosed under subparagraph (3), the lay supporter is subject to any prohibition or restriction on disclosure in the same way that the participant is.

(5) A lay supporter must not receive directly or indirectly from the participant any remuneration or other reward for assisting the participant.

Lay representation for non-natural persons

Interpretation

19.—(1) In paragraphs 19 to 22—

“authorisation document” means a document executed by a non-natural person of a type mentioned in the first column of the following table authorising an individual holding the relevant position mentioned in the corresponding second column to act as its lay representative—

Type of non-natural personRelevant position
a companya director or a secretary of the company
a limited liability partnershipa member of the limited liability partnership
any other partnershipa partner in the partnership
an unincorporated association of personsa member or office holder of the association

“non-natural person” means—

(a)

a company (whether incorporated in the United Kingdom or elsewhere);

(b)

a limited liability partnership;

(c)

any other partnership; or

(d)

an unincorporated association of persons;

“lay representative” means an individual who is not a legal representative; and

“legal representative” means—

(a)

a solicitor;

(b)

an advocate; or

(c)

a person having a right to conduct litigation, or a right of audience, by virtue of section 27 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990(7).

(2) An individual holds a relevant position with a non-natural person if the individual—

(a)in the case of a company, is a director or secretary of the company;

(b)in the case of a limited liability partnership, is a member of the partnership;

(c)in the case of any other partnership, is a partner in the partnership; or

(d)in the case of an unincorporated association, is a member or office holder of the association.

(3) References to conducting proceedings are references to exercising, in relation to the proceedings, a function or right (including a right of audience) that a legal representative could exercise in the proceedings.

Lay representation of non-natural persons at inquiries

20.—(1) This section applies where a non-natural person is a participant at an inquiry.

(2) A lay representative may, if the sheriff grants permission, conduct the inquiry proceedings on behalf of the non-natural person.

(3) The sheriff may grant permission if satisfied that—

(a)the non-natural person is unable to pay for the services of a legal representative to conduct the inquiry proceedings;

(b)the lay representative is a suitable person to conduct the inquiry proceedings; and

(c)it is in the interests of justice to grant permission.

(4) For the purposes of subparagraph (3)(b), a lay representative is a suitable person to conduct the proceedings if—

(a)the lay representative holds a relevant position with the non-natural person;

(b)the responsibilities of the lay representative in that position do not consist wholly or mainly of conducting legal proceedings on behalf of the non-natural person or another person;

(c)the lay representative is authorised by the non-natural person to conduct the inquiry proceedings;

(d)the lay representative does not have a personal interest in the subject matter of the inquiry proceedings; and

(e)the lay representative is not the subject of an order of the sheriff preventing a lay representative from conducting any proceedings before any sheriff on behalf of non-natural persons.

(5) In subparagraph (4)(d), “personal interest” means an interest other than one that anyone holding the position that the lay representative holds with the non-natural person would have.

(6) For the purposes of subparagraph (3)(c), in deciding whether it is in the interests of justice to grant permission, the sheriff must have regard, in particular, to—

(a)the non-natural person’s interest in the inquiry proceedings; and

(b)the likely complexity of the inquiry proceedings.

Applications for authorisation of lay representatives for non-natural persons

21.—(1) An application for permission for a lay representative to conduct proceedings on behalf of a non-natural person is to be made in Form S4.21.

(2) The application must be accompanied by an authorisation document.

(3) An application may be considered in chambers and without hearing the participants.

(4) Where the sheriff grants an application, the sheriff may—

(a)do so in respect of one or more specified hearings;

(b)withdraw permission of the sheriff’s own accord or on the application of a participant.

Lay representation of non-natural persons: functions, conditions and duties

22.—(1) A lay representative may be shown any document (including a court document) or receive any information about the inquiry proceedings without the non-natural person, or any of its office holders or employees, contravening any prohibition or restriction on disclosure of the document or information.

(2) Where a document or information is disclosed under subparagraph (1), the lay representative is subject to any prohibition or restriction on disclosure in the same way that the non-natural person is.

(3) The sheriff, of the sheriff’s own accord or on the application of a participant, may impose conditions on the exercise of functions by a lay representative, where it is necessary to do so in the interests of justice.

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(8), 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.

Rule 4.9

SCHEDULE 6VULNERABLE WITNESSES

Interpretation and application of this schedule

1.—(1) This schedule applies where a witness is to present information orally at an inquiry.

(2) In this schedule—

“2004 Act” means the Vulnerable Witnesses (Scotland) Act 2004(9);

“child witness notice” has the meaning given by section 12(2) of the 2004 Act;

“review application” means an application under section 13 of the 2004 Act; and

“vulnerable witness application” has the meaning given by section 12(6) of the 2004 Act.

Form of notices and applications

2.—(1) A child witness notice is to be made in Form S6.2A.

(2) A vulnerable witness application is to be made in Form S6.2B.

(3) A review application is to be made—

(a)in Form S6.2C; or

(b)orally, with the leave of the sheriff.

Determination of notices and applications

3.—(1) When a notice or application under this schedule is lodged, the sheriff may require any of the participants to provide further information before determining the notice or application.

(2) The sheriff may—

(a)determine the notice or application by making an order under section 12(1) or (6) or 13(2) of the 2004 Act without holding a hearing; or

(b)fix a hearing at which participants are to be heard on the notice or application before determining it.

(3) The sheriff may make an order altering the date of any hearing at which information is to be presented in order that the notice or application may be determined.

Determination of notices and applications: supplementary orders

4.  Where the sheriff determines a notice or application under this schedule and makes an order under section 12(1) or (6) or 13(2) of the 2004 Act, the sheriff may make further orders to further the purpose of the inquiry.

Intimation of orders

5.—(1) Where the sheriff makes an order—

(a)fixing a hearing under paragraph 3(2)(b);

(b)altering the date of a hearing under paragraph 3(3); or

(c)under section 12(1) or (6) or 13(2) of the 2004 Act,

the sheriff clerk is to intimate the order in accordance with this paragraph.

(2) Intimation is to be given to—

(a)every participant; and

(b)any other person named in the order.

(3) Intimation is to be given—

(a)on the day that the hearing is fixed or the order is made; and

(b)in the manner ordered by the sheriff.

Testimony by commissioner: preparatory steps

6.—(1) This paragraph applies where the sheriff authorises the special measure of taking evidence by a commissioner under section 19(1) of the 2004 Act.

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

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

(4) The participant who cited the vulnerable witness—

(a)must give the commissioner—

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

(ii)a copy of the first notice; and

(iii)where paragraph 7 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) An application by a participant for leave to be present in the room where the commission is carried out is to be made by application.

Testimony by commissioner: interrogatories

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

(a)authorises the special measure of taking evidence by a commissioner under section 19(1) of the 2004 Act; and

(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 vulnerable 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 in process.

(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

8.—(1) The commissioner must administer the oath de fideli administratione to the clerk.

(2) The commissioner must administer either the oath or affirmation to a witness.

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

9.—(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 vulnerable witness and the record of the information presented are to be treated as being in the knowledge of the participants; and

(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.

(3)

OJ L 324, 10.12.2007 p. 79.

(8)

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

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