Mr. James McColm

Part of Opposition Day – in the House of Commons at 10:33 pm on 16th June 1992.

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Photo of Lord James Douglas-Hamilton Lord James Douglas-Hamilton , Edinburgh West 10:33 pm, 16th June 1992

I have much to say, and I should like to answer the questions posed.

The Lord Advocate will so direct when he is satisfied that it is expedient in the public interest that an inquiry should be held into the circumstances.

The discretion of the Lord Advocate in this matter has long been recognised. The Lord Advocate was given this discretion in 1906, and it was continued by the 1976 Act, which consolidated the legislation and modernised the procedures. In the exercise of his discretion, the Lord Advocate acts in a quasi-judicial capacity when deciding whether or not an inquiry should be held.

At the conclusion of a fatal accident inquiry, the sheriff has to make a determination setting out where and when a death took place, and the cause of the death. These are the formal findings. Of greater significance—and the reason why an inquiry will be held—are the sheriff's findings in relation to any reasonable precautions whereby the death or any accident resulting in the death might have been avoided. In appropriate cases, the sheriff may also determine that there were defects in a system of working which contributed to the death or any accident resulting in the death.

In the case of road traffic fatalities, a fatal accident inquiry would normally be held only if it was thought that there was a need to inquire into such matters as the layout of the road, the appropriateness of any speed limits at the locus, or the adequacy of street lighting. In other words, do the circumstances of the accident give rise to concerns about road safety? Where it is considered that the driver of a vehicle was at fault to the extent that his driving was thought to have been careless or reckless, the appropriate step is for criminal proceedings to be instituted. Where criminal proceedings are not appropriate and no issues of road safety are raised, a fatal accident inquiry will not usually be held, especially where the investigations by the police and fiscal have already clearly established the circumstances leading up to the accident.

In Mr. McColm's case, Crown counsel acting on behalf of the Lord Advocate had to decide whether it was necessary in the public interest that an inquiry should be held. Crown counsel concluded that the circumstances were not unexplained and that they did not give rise to any serious public concern. Crown counsel therefore instructed that an inquiry should not be held. It is that decision which has angered the hon. Gentleman's constituents. I should also confirm, for the avoidance of doubt, that Crown counsel was satisfied that there was no case for taking criminal proceedings against the driver of the taxi.

When the decision was intimated to the family, one of Mr. McColm's sons complained that the fiscal had not been willing to provide him with a copy of either the police report or the fiscal's report to Crown counsel. A meeting was arranged, and both Mr. McColm's sons attended at the fiscal's office in January 1990. As the hon. Gentleman said, this was the second meeting; and I can confirm that there were only two meetings and not three, as was mistakenly mentioned in the letter to which the hon. Member referred.

As I have explained, the family had already been given details of the evidence available to the fiscal. In addition, I understand that the solicitors representing the family had themselves obtained statements from the witnesses. Accordingly, Mr. McColm's family were in possession of the same information about the circumstances of the death as was available to the fiscal and Crown counsel. No material information was withheld from the family. They remained dissatisfied, however, because they had not been shown the police report or the fiscal's report. The police report was simply a summary of the evidence, the details of which had already been provided to the family.

The fiscal's report was accompanied by the statements of the witnesses, but was itself an assessment of that evidence and a recommendation by the fiscal to Crown counsel as to whether a fatal accident inquiry should be held. The fiscal is clearly entitled to make an assessment of the evidence and offer his opinion to Crown counsel on a confidential basis. It was for Crown counsel to decide whether a fatal accident inquiry should be held, and he was not bound to accept the fiscal's recommendation.

By this stage, the circumstances of this case had been drawn to the attention of the then Lord Advocate, Lord Fraser of Carmyllie. Lord Fraser himself reviewed the available evidence and concluded that the circumstances did not meet the criteria set out in the 1976 Act. Lord Fraser was therefore satisfied that a fatal accident inquiry should not be held.

The circumstances of Mr. McColm's death had therefore been carefully and thoroughly investigated by both the police and the fiscal; and the results of those inquiries had been given careful consideration by both Crown counsel and the most senior Law Officer in Scotland. Nothing material had been withheld from the family. They were not provided, however, with copies of the reports in which those investigating the circumstances had offered assessments of the evidence and opinions as to the course of action which should be taken.

As Lord Fraser explained in correspondence with the hon. Gentleman's predecessor, there is a long and unbroken line of judicial authority to the effect that reports by the police to the fiscal and communications between the fiscal and Crown Office are very highly confidential. The Scottish courts will order their production to a third party only where it is necessary for the ends of justice in view of some great and overwhelming necessity. Lord Fraser concluded that, in the circumstances of this case, there was no such necessity, especially as the actual reports sought by the family did not contain any factual information which had not been made available to the family.

Fatal accident inquiries are instructed where the circumstances of the death give rise to serious public concern—as, for example, in cases where there is a continuing danger. The Lord Advocate was satisfied that in this case the circumstances, while tragic, did not give rise to any serious public concern. There are occasions when inquiries are instructed where the death is unexplained and it is thought that a public inquiry might shed some light on the circumstances, but in this case there was no reason to believe that an inquiry could conceivably add anything to the information available to the family as a result of the investigation by the police and fiscal and the investigation by their own solicitors.

Inquiries are the exception rather than the rule. I shall give some figures. Over a two-year period, in 1989 and 1990, 46 cases in Kilmarnock involving 52 deaths were reported to the fiscal, who inquired into the circumstances. In 19 of those cases, criminal proceedings were taken, and in three a fatal accident inquiry was held.

It is unusual to have both criminal proceedings and a fatal accident inquiry. If there is to be an inquiry, it is usually held after the criminal proceedings, if any, have concluded. The need for an inquiry would always be reassessed at that time, as it is likely that the circumstances of the death could have been sufficiently established in the course of the criminal proceedings.

In most cases where no proceedings were taken, either there was an accident which did not involve any other vehicle, or the deceased was at fault. In such cases it would be unusual to hold an inquiry, because either the circumstances will be clearly established by the fiscal's investigation or there is no serious public concern.

I am grateful to the hon. Gentleman for pointing out the discrepancy between the fiscal's figures and those of the chief constable. I made detailed inquiries and discovered that the difference is accounted for by one case where the deceased suffered a fatal heart attack before losing control of the car. I understand that, as this was a death from natural causes, the police have not recorded it as a road traffic fatality. I shall pursue that matter, and will write to the hon. Gentleman in due course. I assure the House that this tragic matter was thoroughly investigated. I confirmed that material facts were not withheld from his family—