First, I warmly congratulate the hon. Member for Cunninghame, North (Mr. Donohoe) on securing this adjournment debate in the ballot and on his good advocacy on behalf of his constituents.
Before I respond to the points raised by the hon. Gentleman and the hon. Member for Livingston (Mr. Cook), may I express my sympathy to the family of the late Mr. McColm for its tragic loss.
The matters under discussion are important, and I am grateful to the hon. Member for Cunninghame, North for having provided me with notice of the points that he wished to raise. I am glad to have this opportunity to address some of the concerns that he has raised on behalf of his constituents, many of which were raised previously by his predecessor, Mr. David Lambie.
It is clear to me that the McColm family believe that the cause of Mr. McColm's death has never been adequately explained: and that the truth might have been arrived at if a public inquiry had been held. The concerns which have been voiced by the hon. Member stem directly from the decision not to hold a fatal accident inquiry, and from the secret way in which, as the McColm family perceive it, the decision was taken. It may assist the House, therefore, if I give a brief outline of the history of the case as I understand it.
Mr. James McColm was involved in a road traffic accident on 9 July 1989, when he was in collision with a taxi. He died two days later without having regained consciousness. The circumstances of the accident were investigated by the police. Statements were taken from witnesses, and a report was submitted to the procurator fiscal at Kilmarnock. Although the police were able to trace only one eye witness to the accident—a 14-year-old boy—that witness was able to give a detailed account of what had happened, as he had been standing directly opposite Mr. McColm before the collision with a taxi. That witness had seen the taxi approach and had seen Mr. McColm before he stepped on to the road in front of the approaching taxi.
The police examined the taxi to determine whether there were any mechanical defects which might have contributed to the accident. They found none. They also measured the skid marks left by the taxi in order to estimate the speed at which the taxi had been travelling. Estimates of the speed were also provided by the eye witness and two other eye witnesses who were approximately 300 m from the locus but had been passed earlier by the taxi. Those other persons did not witness the actual collision. There was conflicting evidence about the speed of the taxi but, based on that of the eye witness and the evidence from the skid marks, there was nothing to indicate that excessive speed was a contributory factor in this case.
All that information was passed to the procurator fiscal, who has responsibility for investigating sudden suspicious and accidental deaths. In Scotland, there is no such thing as an inquest, and there are no coroners. As I understand the position in England and Wales, inquests are held to establish the cause of death. In Scotland, the procurator fiscal inquires into the cause of death, and fatal accident inquiries are then held to address issues of public concern.
Once the death was reported to the procurator fiscal, his first task was to arrange for a post mortem examination. The hon. Gentleman asked why the post mortem report was not made available. My understanding is that the first brother to visit the procurator fiscal was allowed to read the post mortem report. As a general rule, procurators fiscal do not provide copies of reports, but consent to the pathologist making the report available. In this case, the pathologist found injuries to both the left and right sides of the body. I am told that that is not inconsistent with the description of the accident from the eye witness who spoke of Mr. McColm stepping into the path of the taxi, by which time he was almost facing it.
The words of the eye witness that constitute the critical evidence in a statement to the police were as follows:
The car would only have been about 10 metres away from the man (ie the deceased) when he turned round quickly and stepped onto the road. It took him two steps to reach the road and the second one took him into the path of the car. By this time he had turned so that he was almost facing it.
He was struck on the legs and thrown up in the air before landing on the bonnet of the car and then falling on to the road.
As is normal practice, the procurator fiscal then conducted his own inquiry into the circumstances of Mr. McColm's death. He interviewed the witnesses and also met one of Mr. McColm's sons, who was told in detail what each witness had said. Mr. McColm's son was given an opportunity to read the post mortem report, and he was provided with a list of the names and addresses of the witnesses to enable him to interview them personally if he wished to do so. The procurator fiscal explained the standard of evidence required to justify a criminal prosecution, and he outlined the circumstances in which Crown counsel might feel justified in instructing that a fatal accident inquiry be held.
Once the procurator fiscal had completed his inquiries, he submitted a report to Crown counsel, who had to decide on behalf of the Lord Advocate whether the procurator fiscal should be instructed to hold an inquiry.
In terms of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976, there are only two categories of death for which a fatal accident inquiry must be held: a death in custody and a death which has resulted from an accident where the deceased was in the course of his employment. The circumstances of Mr. McColm's death did not fall into either category. In addition to the mandatory inquiries, the Lord Advocate may direct that an inquiry be held where a death was sudden, suspicious or unexplained or has occurred in circumstances such as to give rise to serious public concern.