 A gael colleagues i ddweud eich ddweud i ffgaredd 15 yn 2015, a bod i'n gweithio eich ddweud i ddweud i ddweud eich eich ddweud i ddweud o bobillodau a oedd yn fynd allan gyrfaeddau yn cyd-deuam. Ond nid o typodd cyflawni yn dweud i gael Patricia Ferguson i ddweud y cymdeithasganaeth i gyd, ac mae gweld i'n gwneud i ddweud i ddweud i gael fynd yn cael ei ran gyrfaeddau. Mae Arwm Gael cyflosydd i ddweud i gael ei sefydliadau, Councils in Scotland Code of Practise Order 2015. Welcome to meeting Michael Matheson, Cabinet Secretary for Justice and the Scottish Government officials, Bian Bartley, policy officer at the organised crime and policy powers unit, and Carla McCloy-Steven, solicitor, legal directorate. Cabinet Secretary, I know that you are giving evidence in advance of the debate in the instrument, and I believe that you want to make a refopening statement. I am grateful for the opportunity to speak to you about the draft Proceeds of Crime Act 2002, Order 2015. It proposes to bring into operation a revised code of practice in connection with the exercise by Constables in Scotland of the powers conferred by section 289 of the Proceeds of Crime Act 2002. Section 289 of the Proceeds of Crime Act allows Constables to search individuals and premises for cash, which is a recoverable property, or is intended for use in unlawful conduct, and which is not less than the minimum amount, which is currently £1,000. It forms part of a suite of measures that provide for the search, seizure and forfeiture of such cash. The search pillars are subject to certain limits and conditions and generally require the prior approval of a sheriff. As a further safeguard section 293 of the Proceeds of Crime Act requires Scottish ministers to provide a code of practice for Constables in Scotland to ensure that they exercise the search pillars in an appropriate, fair and proportionate way. The code has been in operation for over 12 years and was last revised in 2009. The current revision comes as a result of amendments made to section 289 of the Proceeds of Crime Act by section 63 of the Policing and Crime Act 2009. Those are due to community force on 1 June 2015. They insert new provisions into section 289 of the Proceeds of Crime Act, which enable Constables to search vehicles for cash in certain circumstances. Currently, a Constable may search a vehicle under section 289 of the Proceeds of Crime Act if it is located on premises that are already the subject of a search and the Constable has lawful authority to be there. The new power, however, allows a Constable to search a vehicle where it appears to be under the control of an identifiable person and is in a public place. If the Constable has reasonable grounds to suspect that there is recoverable cash in the vehicle, he or she may require the person to permit entry to and search of the vehicle. The new powers may be used where a vehicle is within environs of a dwelling, but only if the Constable has reasonable grounds for believing that the person in control of the vehicle does not reside in the dwelling and that the vehicle is there without the permission of a person who does reside there. Accordingly, the current revision of the code simply applies the existing guidance and standards of practice to the new powers for searches of vehicles. Of course, I am happy to answer any questions that members may have. Thank you very much. Questions, John Finnie. If I noted you correctly, you said that generally require the authorisation of a sheriff. Were there any instances when a sheriff's authorisation would not be required? There would be circumstances where it may be impractical because of the immediacy of the situation where a Constable may be able to undertake the search. Now, no circumstances where they are not able to get authorisation from a sheriff, they should seek authorisation from a senior officer of the rank of inspector or above to proceed with such a search. If there are circumstances where that is not possible, they can conduct the search, but there is a process that they must go through, which is for the reporting of that, the details of that and an explanation as to what the outcome of it was, but why it was undertaken without the normal authorisation process and there is an oversight process for that as well. For those cases where that approach has been taken, the appropriate person that the legislation provides for is able to consider those matters and to look at whether they have exercised their powers under the code of practice appropriately as well, so there is an oversight mechanism for that as well to check it. Excuse me, and what would the avenue of address be in the circumstances where they had not been properly exercised? That would then be for the appropriate person who would consider how it had been utilised, how they had undertaken that particular search and to then consider referring the matter to the chief Constable of the force that they were serving with to look at the process and to make sure that it was being properly adhered to. If there was any other legal challenges for that, then that would obviously be a matter for the courts to consider. I mean, I understand that there is practice for this already, but people would imagine if we are talking about proceeds of crime, that to even have it in that category there has been some pre-planning, if you like, and searches are always better undertaken under warrant rather than if you like on a discretionary basis. The reality is that the vast majority of the searches which are undertaken under proceeds of crime are intelligence-based searches where authorisation has been given by a sheriff in the form of a warrant. That tends to be the practical reality of it in the first place. There will, of course, be the exceptions, and that is why the code of practice has these arrangements and also why the legislation has the provision for the appropriate person who has got an oversight role on how they are being applied as well. It is not just the proceeds of crime, but it is also deemed to be suspected for reasonable grounds for the purposes of crime. No, this code of practice is for the purposes of the proceeds of crime act. I am just checking that. We have policy objective or is intended by any person for use in unlawful conduct, which is not necessarily the minimum amount so intended for use by any person for use in unlawful conduct. That is certainly what we have got as our policy guidance. This is for the purposes of, if you are exercising that under the proceeds of crime act, not for any other area. No, I understand, but it is not just recoverable property, which has come from crime, but it is cash, which might be used for the purposes of the crime. That is just to clarify that. It is early for me, but I think that I have worked that out. Rodd. Morning. The revised code of practice says that it is available for consultation by the police and by members of the public, if they so wish. Are you able to provide any information on how far the existence of this code of practice will be made known to the public so that they wish to look at this? The code of practice will be available in all police stations in Scotland, and it will also be available on the Scottish Government's website, so it will be readily available. It is more of a general question, cabinet secretary, given the difficulty surrounding the communication of the policy and stop and search to rank and file officers within Police Scotland, are you confident that the revised code of practice will be properly communicated to those rank and file officers? Well, this is entirely separate from the other forms of stop and search, so it does not relate to it. So there have not been any issues raised around how the existing code of practice has been operating, as it has been for a good number of years now. As I say, it was revised in 2009, but the actual code of practice has been in place since December 2002. The code that we operate here in Scotland is very similar to the code that operates in other parts of the UK. The gist of the question was about communication. 2009 was prior to the existence of Police Scotland, and the communication problems have resulted since the establishment of Police Scotland. I am confident that the code of practice will be adhered to, and it will be properly utilised by officers. I am properly communicated to them. Well, there is already a process in place so that that has happened since 2002, and there have been any problems there has been since then. We shall see. I am scepticism as usual, but that is all right, Elaine. This is really a question just for information. I see that the minimum amount is £1,000. Has that changed since 2009, and how is that determined? No, it hasn't been changed. No, it's all at that level. That's what I was defining in the original legislation. Were there any concerns, cabinet secretary, during the consultation by the Human Rights Commission? I noted in my note that it says that there were few representations which were generally very positive, whether any negative responses that we might like to hear were. From the Human Rights Commission? Yes. They didn't object to this at all. Were there any negative responses whatsoever? No. That's the question period over. I now move on to item 2, which is the formal debate. The motion to approve the incident is considered on the previous item. By the cabinet secretary to move the motion, S4M 13076 of the Justice Committee recommends that the draft proceeds of crime act 2002, cash searches, councils in Scotland code of practice, order 2015 be approved. Do any members wish to speak in the debate in this motion? No. The question is that motion S4M 13076 be agreed to. Are we all agreed? Yes. Thank you very much. As members are aware, we require to report on all the formative instruments and members can tend to delegate authority to me in responsibility to sign off this report. Thank you very much. Thank you very much cabinet secretary and your officials for attending the meeting. And I'll suspend just for a couple of minutes to allow witnesses to change over. Thank you very much. And I move on to item 3, continuing inquiries into ffate, likes and sun, deaths. Scotland Bill evidence session. And we have three panels of witnesses today in the bill. And the themes emerging last week's evidence session. I welcome the meeting. Jake Malloy, regional organiser for the National Union of Rail, Manitiam and Transport workers and Ian Tasker, assistant secretary of the Scottish Trade Union Congress. And I thank you for your written submissions. I go straight to questions from members. Gil. Thank you so much. Can I take you straight to industrial diseases and ask you why you think it's necessary to hold an FAI into every death caused by an industrial disease? And what benefit might we get from that? I should have said sorry, gentlemen, is that the microphone will come on automatically. And if one in particular wants to answer, if you just indicate to me and I'll call you. Mr Tasker. Yes. I mean the issue is quite clearly it would be impractical to have feitlats in the normandatory, feitlats in enquiries into every industrial disease. Our opinion is that the reason we have a serious problem with asbestos related diseases is because although the problem was known for most of last century and before that as well, it was never proper enquiries carried out. Our intention in relation to seek and mandate inquiries for industrial disease is to future proof against new technologies such as fracking, such as nanotechnology and the materials used in that process and how in the future that may cause problems for individuals. So it's not about placing a burden on the feitlats in an inquiry process to cover old ground, it's about investigating new ground. I'm particularly interested in what you said about asbestos, so in regards to asbestos because I think we know a lot about it. And I think one of the concerns was that one of the problems we've got right now is trying to seek proper compensation and of course there's processes involved and tribunials and court cases. So you're relaxed about that and that's not the area that you want to be engaged in. I mean it may well be that in circumstances particularly and we haven't come across it in Scotland but we've come across it in England and Wales where very young people have developed asbestos related diseases and if there was no indication where that exposure had actually happened then we would suggest that there should be whether it was a mandatory inquiry or a discretionary inquiry into that death to try and establish how that death occurred. Do you think in these circumstances that the Lord Advocate would be the place for that would happen, where there would be discretion in his hands? Do you think that that would work for you? For perhaps diseases that are related to known diseases, known exposures to asbestos, but where there is something that just doesn't fit right with previous histories, then perhaps a discretionary inquiry would be appropriate, but for new diseases or unknown exposures to new processes, new industrial processes, we believe that that should be part of the mandatory process. I'm fairly afraid with a lot of new products that come into the market particularly in the automotive industry so I can understand your concerns in that regard and is that the kind of area that you think that more work needs to be done in those new processes that we're seeing appear? I mean I think in the absence of adopting the precautionary principle which sets strict standards in relation to new processes we have to have something that ensures that where issues occur there is a proper and full inquiry into that death at the time so lessons can be learned and we don't revisit the old problems of asbestos, where I think a lot of people including workers buried their hands in the sand and compared asbestos in the danger that it could cause. Cair, thanks very much for that. Mr Malloy, do you wish to make a comment on mandatory? Just to concur with what Mr Thasker said, especially the new technologies on fracking, coal gasification and other areas, unknown areas, where we need to ensure that in the event of an accident we'll learn everything from it to prevent recurrence. This is in relation to industrial diseases, not an accident at work which of course is mandatory. If you still consider there's a problem with delays in holding FAIs and if so to comment on Lord Gill's recommendation for early hearings, which wasn't taken up in the bill? We fully support the suggestions in Patricia Ferguson MSP's bill that there should be timescale set where the Lord Advocate has to take decisions in relation to holding an inquiry. I think that that would kick start the process very much. At an early stage, I was looking at one fatal accident inquiry into the death of a Brazilian national who fell on a wind turbine, and that took seven years to actually get an inquiry hearing. We believe that there's things that could have been addressed at an early stage in relation to that pacific death, because the individual, although he was not wearing a hard hat, was wearing a harness. I think that there could have been things that are released to the family in relation to that particular death. In our opinion, it may not have prejudiced any criminal inquiry, but it may have put the family's minds at rest at an early stage. There was another one in relation to the death and custody in James Bell. There was an inquiry held in 2014 in relation to the death in 2011. Three years is perhaps quite long for a death and custody inquiry, but when the fiscal was questioned in relation to why that delay had occurred, it could not answer the question. The sheriffs know that there are unacceptable delays in the system, but, for some reason, the fiscal cannot answer why those delays are occurring. The question was specifically about the early hearings. That was a proposal that, three months maximum from the time of death, there would be a hearing that would help inform the families of where we were. It would mean that the Crown and Procurator Fiscal would have to see why they were not ready to proceed and give some kind of estimate of when they would think that they were ready to proceed. It would not just end at that. There would be another time set to review where we were. It is almost like time limits, but it is an early hearing proposal, as opposed to a preliminary hearing that is in the bill, which is all to do with getting ready for trial. We agree with the principle that there are still delays, an example being the death of Alar and Brent Charlie platform in 2011. We only had the prosecution this year, and no information has been disseminated as regards that particular incident. I think that that is put into context when you consider the fact that we have had two further fatal accidents of people falling into the sea since that event. That generates speculation, anxiety and concern among the wider workforce. That is why we are proposing an early hearing, in order to deal with the facts, in order to dispel the perceptions, fears and concerns, address the issues of the family and share those lessons as early as possible as to the specific facts of that accident in order to prevent recurrence. I think that possibly the early hearing is really just to see where we are and how near or imminent the actual fatal inquiry is going to be or going in another direction. Can I move this on a little bit and say another of the proposals? I think that we all accept that there are delays that need to be cured. I think that the distinction that the market has brought up between an early hearing, which is about process, is that, if one were to go into substantive matters under some mandatory timescale, it would be almost impossible—it would have to apply to all—and it would be difficult in certain circumstances. It might prejudice an FAI, it might prejudice criminal proceedings and that it perhaps is too blunt an instrument, if I put it like that. I think that we would all want to see them accelerated but I speak for myself, I have concerns. If you have a mandatory timescale, it would not be suitable in all circumstances. It might be prejudicial to the relatives and friends who require things whereas what the Lord Cullen was suggesting was, yes, not just the Lord Advocate telling families and relatives how it is proceeding but a mandatory early hearing to keep the Crown Office on its toes. You see the difficulty that we might be facing if you make it a mandatory one to announce whether or not there is an FAI with facts coming out. We accept the difficulties associated with a mandatory timescale but we still have great frustration in the time that it is taking. Absolutely. I think that it is the cure that we are looking at rather than the sports that we are concerned about. The liaison between the police and the procurator fiscals and the HSE regulators seems to have—you know, the co-operation seems to have delivered nothing in regards to reducing that timescale. In fact, in some cases, timescales have become ever greater and that is a real concern for us and for workers generally, I would say. As Lord Cullen's suggestion of an early hearing is it gaining any ground with you, do you think that that is given his concerns about going in another direction? We have actually requested that the regulators look at the AAIB model, the Air Accident Investigation Branch model, of producing a statement of fact at a very early stage in order to diffuse some of the concerns that linger with some of those events. The main point that would come from an early hearing is to concentrate the Crown and Procurator Fiscals' minds. They would still be very much in charge of the evidence and the presentation of facts. There would not be anything that would jeopardise hearing facts too early, but it would concentrate the Crown and Procurator Fiscals' minds and make sure that there was another date where they had to again report back and say why there had been delays. The other way to address what is perceived as possibly causing a lot of the delays is to ensure that the Crown and Procurator Fiscals' service is properly resourced. Again, the Cullen report recommended a specialised unit to deal with fatal accident inquiries to make sure that there was proper resource within the Crown and Procurator Fiscals to make sure that they delivered as quickly as possible the fatal accident inquiry. Could I have your comments on that? I think that we are very much welcomed to setting up the fatal inquiry unit, but having studied the findings that are listed on the Scottish Courts website, we do have some concerns whether that is actually speeding up the process. It certainly was not designed, I would say, to speed up the process as being the sole priority. It was to have a more effective procedure, so it may well be that we have a more effective procedure. You mentioned resources. As far as we are concerned, we still think that the mandatory limits time scales proposed would be workable under a properly resourced regulatory system. We are not just talking about the Crown Office and Procurator Fiscals' service. It has to be the regulator in relation to the HSE. We have spoken to a number of families and they feel that the only way that they are going to be comfortable in relation to knowing that things are going to proceed is if there are mandatory time scales. I wonder whether they have had a chance to look at the early hearing plus with the resourcing, because there is a subtle difference between forcing something through on a mandatory basis when you are not properly prepared with all the evidence that your fingertips go forward and just keeping track of it to ensure that you are presenting at the right time, but it can disappear into the ether because there is yet another hearing and you have to be accountable for why there are delays. Do you think that the families have had the opportunity to look at the two different and the distinction? I think that the families that we are in touch with are very much switched on to where the failures in the system are and they have been studying the proposals that have studied the proposals in the study of Patricia Ferguson's proposals. They are coming to the conclusion. I would have to say that we are only talking about two or three families who have been part of a process already or felt that they have been let down by the process. They feel that, in their experience, the setting of mandatory time scales to get things in motion would address some of the issues that they have had in the past. I would agree with that, especially on the basis of the 2009 helicopter crash and the families involved with that. They were repeatedly told that a prosecution was coming and then subsequently told that they should refrain from talking to the press or talking to trade unions or talking to the public in any way, work with the Crown Office to get the right result and then subsequently heard on the television that a fatal accident inquiry was to be held and that there would be no prosecution. Quite clearly, there are problems there in the Fiscal's Office and the Crown Office dealing with the families. I think that we agree with that. I think that it is the concern about just whether or not in all circumstances having time limits. I am thinking about deaths abroad now. How does your time limit not be a good idea when you have had a death abroad and we are bringing that in to the spill as well? Christian, this is on the same thing about delays, is it? I will not talk about death abroad, but maybe later on. Leave that to later, just do delays. You are underlaid. I will take you then, I will take Patricia, then I will take Roddy. That is the order of God, people on delays, just on delays. Okay, thank you. Good morning, gentlemen. In terms of... Oh, sorry, it was Christian. Christian, then Roddy, right. Thank you very much. Just to clarify, Mr Molloy, what you talked about when you talked about the Piper Alpha and when you talked about the AIB. I want to be very clear on this. The monetary will cause problems with very complicated cases because we know that there needs to be a proper instigation. I like the fact that you said we need a statement of fact to start with, but do you see it in this example? Was it the problem of a statement of fact, or was it a slowing down, for example, the Piper Alpha was not a parliamentary procedure which made it very slow at the start? Where did it come the delay in the example that you give? Well, we've had five helicopter incidents and within 48 hours of each we've had a statement of fact from the AIB, which, with the most recent one at Sombra, allowed us to consider the industry that is to consider putting helicopters back in the air again, having voluntarily grounded them because we didn't have bad knowledge. So we've got a statement of fact from the regulator to say that there was no mechanical issue, none whatsoever. Investigations would go on as to why that event occurred. If I was to play that in the event of the Brent Charlie death, for example, the facts were very quickly known as to how the individual's ropes were cut through and how he came to be in the sea. A statement of fact would have been that the ropes were cut through as a consequence of an unseen piece of steel and that investigations would go on as to how that steel came to be there, etc. I don't see that a statement of fact jeopardises prosecutions. I feel that we've become such a litigious society that lawyers are advising companies now not to talk about events, not to provide facts. Similarly, the lawyers are providing the HSE or telling the HSE they can't comment, so we have this situation where the families and the workforce, the greater workforce around any incident, start to make up stories for themselves. That cannot be good for society as a whole. It can't be good for the Crown Office, the Procurator Fiscal Office or for how we deal with death at work, which is why I think an early statement of fact and then a time frame based on that fact be introduced as to projections of when an inquiry will be held and if it's likely prosecutions will occur. You wouldn't want to put under a statement this fact a time frame for a statement of fact to come out, because, of course, investigation can't take so much time to have this fact, so you wouldn't want a timetable after the statement of fact have been approached to something better. The chair said that that then puts the impetus, puts accountability on the regulator, the police and industry to conduct the investigation in good time to try and meet those time frames. If you just summarise for me before I go to Patricia, are you saying there's no time scale for a statement of fact, no time scale for that? I would say that a statement of fact could be done within a matter of days after an event. In every case? You see, this is the problem. You've quoted very good examples, but if we're changing the law, we change it for every case and for every foreseeable circumstance, so there's no unintended consequences of it. I know that the HSE already investigating an incident produced an early day incident report, which is essentially a statement of fact to the minister as to what they've found in their initial investigations. It is little more than that. It doesn't prevent the investigation on-going. It simply is a statement of fact as to what occurred with the incident. Just to clarify for me, you're talking about in all circumstances a statement of fact within some kind of time scale, which is? The time scale for a statement of fact. That would be determined on the event. If we're talking about multiple deaths, then it's obviously going to take a bit longer. I don't know that we can have a mandatory time frame. Sorry. You don't have it for that, but then once you've got the statement of fact, you then have a time limit for the announcement whether it's an FAI, and that's a period of three months. Thank you. Just to clarify. I think a good example of where it worked well was, and it wasn't a fatal accident inquiry. It was a public inquiry. It was the storyline inquiry, and that was a very complex investigation. It could be argued that, again, families were not communicated with properly, but it was quite clear in the early days and it was established in the early days what actually caused that explosion. It was mentioned earlier in relation to rumour about what other things might have caused that tragedy, and that doesn't help the families either. I think that it's being more open and transparent in relation to what's been found at an earlier stage, and I accept that that can't be a mandatory time frame in relation to that, but as soon as any regulator is in a position to issue a statement of fact, that should be communicated to the families. Thank you. Patricia followed by Rod. Thank you, convener. Good morning, gentlemen. I think I'm right in saying from my consideration of the Government's current bill that there are no timescales mentioned there. Was that a disappointment? I think that, certainly for the STUC, that is a disappointment, and we appreciate that they've taken on a lot earlier, taken on some point from your particular proposals. I think that our biggest disappointment is that they are not taking on board the timescales, which we believe would push the process forward and encourage the Lord Advocate to take those decisions. For us, if there are mandatory timescales, it will become part of a process where, perhaps, hopefully, those decisions are being taken well within those timescales. If there was a time frame of, say, six months before, within which the Lord Advocate had the opportunity to say, yes, there will or no, I won't apply to take that inquiry, do you think that six months is a long enough period for that, providing that there is a mechanism that allows the Lord Advocate where the matter is perhaps particularly complex, for example, to say well and in this instance, for those reasons, I will take seven months or nine months or a year. Would that be reasonable? I think that providing the reasons for that decision were properly communicated to families or to their legal representatives or to trade unions indeed, you know, we will work and we have worked with families to perhaps make sure their expectations of when things are going to happen are realistic. I think that we would do that on that basis, that if the Lord Advocate felt that there was a genuine need for an extension to any timescales, then I think that it would be irresponsible of the trade union movement not to support that decision. Rodd, first please. Do you agree that the public interest as opposed to the interest of the families is diminishing those? The public interest is that criminal investigations should take precedence over a fatal and accident inquiry, that anything that might prejudice their impact on that should be discouraged and that should be foremost in the Lord Advocate's mind? I mean, I think that that is very much the case and but we think that there could be more done, particularly in relation to the reports by the accident investigation branch. We would point to the maritime and coast guard agency and the reports that they issued very quickly in relation to deaths at sea. They have a disclaimer, basically, that those reports will not prejudice any future criminal investigation, so we think that there are more that can be done. Although it is clear that the public interest has to come first, there is more that could be done to publish reports into fatal accidents at work. We are mainly talking about fatal accidents at work that actually helps us to perhaps look at how we improve safety standards at an earlier stage than we actually do now. I am just trying to pull this together. The more that you think could be done is back to the idea of a statement of facts. Would it not be the case that sometimes a statement of facts—not the ones that you have quoted about mechanical failure, although that might as well—and a statement of facts as such might prejudice criminal proceedings by the fact being put forward and not being challenged? I have absolute concerns about delays and the family's position, and I fully appreciate the FAIs and the public interest, and I fully appreciate that we have to cure the lack of safety measures in workplace as swiftly as possible. My concern is that, by taking the steps that you are suggesting, you prejudice criminal proceedings—you may prejudice criminal proceedings—by having time limits, you may prejudice an FAI. I mean to say that a decision is taken within your time, not to hold an FAI, and then other evidence comes to light. Do we then hold an FAI? This is the problem. We want to cure something. I do not know if your remedies cure them in the way you wish over all FAIs. You see, what would happen if you had a time limit and the crown say, well, we are not holding an FAI, we have done a statement of facts, we have decided not to hold them within your time limits, and a year later we should have held an FAI. I mean, we are not aware of any circumstances where that has been done. No, because we do not have time limits just yet, but if you have them, what would that do? The decision to hold a FAI, that is an inquiry, we believe has been taken far too late, it has not been communicated to families. I agree with all that, I am just posing to you. You set a time limit for six months, and the Lord Baptist, I am not holding an FAI, and a year later evidence comes to light somewhere or other that there should have been an FAI. What do we do? What happens? I mean, we can't, if there's been a full investigation, there's been a decision to take or not to take a criminal prosecution. You know, there has been a full investigation into the circumstances relating to that death. We would question what new evidence is going to come to light, and if that is the case, given that we have double jeopardy in relation to criminal prosecutions, why can't we have a process introduced in law that would allow that situation to be revisited? Well, given that double jeopardy has been eliminated, that's for very serious offences, of course, but I just put that to you as a difficulty that might happen as an unintended consequence of worthy proposals to speed them up and to keep families informed, but just some of the difficulties in law that might come from it that are unintended. Does anybody else want to go on further about, before we get to this important point, Christian Patricia, you want to back in after this? Can you please clarify, because you answered my question saying that you didn't want monetary timescales when you answered the question of what you were disappointed with. The Scottish Government didn't introduce monetary timescales. I'm confused. Do you want monetary timescales or do you realise that we cannot have monetary timescales? I can't see a clear evidence from you. I think our preference would be for mandatory timescales, but Patricia Ferguson raises an important point where the law advocate feels that these mandatory timescales cannot be adhered to for whatever reason. So do you agree with the law advocate? He should have discretion to extend these mandatory timescales if he can provide an adequate explanation to the families that he needs more time. Do you want monetary timescales to start with? Let me take Patricia first, then you can come in. Mention has been made of criminal prosecutions against companies, firms and individuals who might be involved in these very unfortunate and tragic incidents, but I presume that where there to be a criminal investigation, you would not expect timescales to kick in until the conclusion of those particular prosecutions. That's correct, because I've already stated that we believe that the criminal prosecution in the public interest has to take priority. However, following the conclusion of criminal proceedings and whether that, particularly where there hasn't, in the family's view, been a full examination and a full disclosure of the circumstances relating to the death, managers to the timescales in relation to the announcement of that fatal accident inquiry are, we believe, vitally important. If I may just follow up on that, convener, because I was very interested in the point about the public interest being possibly different from that of the families or possibly being superior to that of the families. I think that Mr Tasker makes a very interesting point about criminal proceedings, because I think that I'm right in thinking that Mr Tasker has had some involvement in criminal proceedings where there was a guilty plea. For that reason, there was no exploration in public of the facts and no reason or rationale given to anyone involved in that particular tragedy. I think that I've had an involvement in a number of cases. I've already mentioned the start line, but clearly a few years ago there were four fatalities in open cast mining that the companies pled guilty to. The families' position there was extreme anger that they go to court and they don't hear the full facts in relation to the circumstances and the loss of their loved ones. We supported some of those families in relation to raising those concerns with the then-lawed advocate. That did lead to changes, we believe, initially setting up the health and safety division. I think that we're sympathetic and I'm looking for perhaps a cure for that when somebody pleads and we don't have a full exposure of what events took place. Roddy, do you have a solution to that? Unfortunately. Just under the point of the Lord Advocate being able to seek to extend the mandatory time table, you suggested that he would need to get the agreement of the victims' families. How's that going to work? Sorry, I may have used that word, I don't know, but we would say, providing it's communicated to families in relation to why he requires that time. He would still have to... What's the sanction if the victims' families don't agree with the Lord Advocate? To me, the Lord Advocate is in a position to take that decision, communicated to the families. The families can then take whatever view they want on that decision, but as I said, I think you would provide the reasons for that. You would have legal advisers perhaps engaging with families saying, yes, here are the reasons why this extension has been as required and we would support that. You may well get families who are very much displeased about the proposal to extend the time limit, but that actually happens at the moment. You see participants and fatlats in inquiries. We would suggest trying to introduce things that are not investigations in relation to the circumstances leading to the death. But isn't that in danger of creating something that is different from what the fatal acts of inquiry is supposed to be, which is an inquiry, not something that creates legal rights, duties and obligations? You're talking about lawyers being involved in advising families. I mean lawyers are involved in advising families at fatal acts in inquiries at the moment, it has to be said, because they need that, because they've not been part of a legal process before. We've got trade unions that support members at fatal acts in inquiries, so it doesn't take away from the fact that it is still an inquiry, but that support is there for people who are actually taking part in a process that is totally alien to them. If I could supplement that, if I can, using the example that we've put in the written papers on the Bravo tragedy in 2003, the families there and the workforce at large felt that the scope of the inquiry didn't bring out the learnings that the industry could have done because, again, plea bargaining occurred. The fiscal's office took the view that having got a guilty plea, initially there was no need for an inquiry, we did some lobbying and we got the inquiry, but then the sheriff took the very narrow remit to look at the specifics, without the input of the families, without the input of trade unions, without the input of safety representatives or the workforce at large. Had that occurred, the time frame adopted by the Lord Advocate for holding the inquiry could reasonably have been expected to be extended because of what we saw at the time as the complexities of the corporate structures of the company involved. I think that what Mr Tasker is saying is that families would reasonably accept an extension to any mandatory time frame, whatever it may be, if they are consulted as to the justification for that extension and given the reasons and the details of why there's a need to broaden out that investigation to look at other aspects of the deaths. You had some robust questioning there and some people might assume that the present situation is perfect, it's far from perfect, which is precisely why we're sitting here. I wonder if you would care to comment on the points that have been raised about reinvestigation. I've got the policy objectives of the bill in front of me here, it's six bullet points and the fifth bullet point is that the policy objectives of the bill are to permit FEIs to be reopened if new evidence arises or if the evidence is so substantial to permit a completely new inquiry to be held. Clearly, you don't want to come to that position but you'd be supportive of that if the need arose. I think that obviously the STUC would be supportive of that and we would agree with your statement that we don't particularly want to get to that but if we are going to have an effective fatal accident inquiry system then that kind of very strong test at the end I think would be welcome. Can I ask you two please, you both RMT and STUC make representations for a greater involvement for the role of trade unions in FEIs and ISAC, personally we're very supportive of that. Can you explain what that role would be and what barriers there are or perceived barriers that might be at the moment to act of participation for the workers representation? I mean I think I would again go back to the case in relation to the spotlight in public inquiry where the STUC general council in the very early days took a position on that that regardless of the fact whether it was a trade unionised workplace or not we would support the families and the injured workers as long as they required that support and that included actually helping them to learn how to campaign to get their public inquiry. But as part of the process it was very much clear that the trade union representation was not welcome by I would say by the inquiry team. It was not welcome when we were supporting the families at the court hearing which they were deeply disappointed. It was not welcome, we were not welcome there. So the fact that you know I think we should very much be seen as part of the process where we have trade union members I think the storyline was a terrible tragedy and it's probably not something that we could do on a day-on-day-out basis but families need that kind of support whether it's trade unions or whether it's some other body they need that kind of support throughout the process and I don't think they get it at the moment. Of course we're told that their interests are represented by the Procurator Fiscal, is that not the case? Sorry, no it's not the case. I've been involved now with four failed inquiries, two public inquiries. I'm going to correct you John, I think the committee is well aware that the Crown Olympia represents the public interest and that has been confusing for families and relatives over the years and I'm glad progress has been made to embrace them more into the process which is confusing when it's someone that has died that you're very close to but I think we're well aware that that's the discussion that is made in the process and that in fact the families are quite often bystanders in the process which we're hoping is improving and will change as this progresses. Maybe if I was to rephrase that then there's a perception widely held by families and I've been involved in failed inquiries that you know death and custody for instance where they say well who's representing my interests you know and the Fiscal's representing a range of interests so clearly the status quo whatever people may think isn't desirable so. Well what I was going to say was that during that entire period I've never once been asked by Procret of Fiscal's office does union mean approached by the Fiscal's office or Lord Advocate's office to offer up evidence the only time we did endeavour to submit evidence we were told that the evidence that we put up was the rantings of a disgruntled ex-employee that disgruntled ex-employee was the primary auditor of the global corporation and had produced data which demonstrated that the corporation had failed fundamentally in its duty of care but it was dismissed as I say the rantings of a disgruntled employee that's why we feel that there's absolutely a need to engage with all parties all stakeholders if you like prior to to determining the scale of an inquiry the timing of an inquiry etc and it also allows the families to hear directly from workforce representatives from the trade unions and from fellow workers safety representatives and the like again many of whom could have made significant contributions to many of the fatal accident inquiries and certainly the four that I've been involved with but on the flip side if you look at the the the public inquiries where we did get that sort of input the outcomes were significantly different and far more encompassing with far greater recommendations and made significant differences it made a difference from those inquiries as opposed to the fatal accident inquiries most of which apart from one that I've been involved with have made little or no difference at all to operations or preventing recurrence of accidents can ask about the outcomes then the suggestion that outcomes should be binding we heard from Lord Cullen last week that that would be challenging in fact it would almost pre-empt the presumption of legislative give them an authority they don't presently have how would you see any findings being put into place because we also have excuse me families against corporate killing that a real frustration that whilst one death was being addressed because action hadn't been taken another six had taken place in the interim well again to to use a another example from the most recent public inquiry a fatal accident inquiry into the 2009 tragedy during the course of investigation and subsequently the decision not to prosecute and then hold an FAI we were privy to to evidence from a trade union official who to quote said that four of the five incidents we've had with helicopters would never have occurred with the company that I worked for and he was quite adamant in giving evidence to to the minister it was sitting in the meeting that that was the case and in fact as regards that 2009 accident it couldn't possibly have happened because a helicopter would never have left a hangar that kind of evidence I think is is fundamental to the investigation and the inquiry process what was excluded well sorry it wasn't it wasn't considered because there was no mechanism for for the trade union input for workforce input as part of that investigation the families met with the crown office the procured fiscal officer several occasions but there was never an invitation put to the trade unions any trade union to be involved in that so these are issues we can certainly put the slister general when the slister general appears before the committee yes i mean i would point you towards a fatal accident inquiry it involved a mother in her the death of a mother in her two children in a road traffic accident just north of of matrose took place in january 2008 the inquiry was four four years later again you know i would say an unreasonable delay but the sheriff and his judgment i think expressed disbelief that these mobile cranes are not subject to mot tests and he also expressed an opinion while there was evidence put forward that the UK government was in contravention of the european directive in relation to that and he made a recommendation that the UK government should take that on board and bring forward legislation as a matter of urgency now that has not been done i realize that there is this difficulty between devolved and reserved responsibilities and obviously the road traffic regulations are reserved but where a sheriff can make legally binding recommendations in relation to devolved powers within the parliament then we think that should that should happen should that be fettered in any way should a sheriff be able to come up and make any judgment and know that it's going to be enforced again i mean as regards the enforcement aspect um if if a judge a sheriff is making recommendations and they're in the public domain um and there's a requirement on those against whom the recommendations are being made to respond in the public domain um i think that puts a great deal of emphasis on the the respective companies to to respond in a positive way i think it would act as a a great deterrent if you like to bad practice and promote good practice um if it was transparent if it was open the idea of those against whom the recommendations are being made simply responding through correspondence to to the lord advocate or whoever i don't think is is healthy it's not um open it's not transparent and it's not conducive to to what we're trying to achieve and that is to to learn from and see significant improvement you mentioned there actually an investigation board is there anything we can learn from them presumably if if if there's a finding there people don't just note it and move on the act in it well um in most cases yes i mean it took 10 drilling workers and two fatal accident inquiries to see the drilling industry change and we haven't and as a consequence of sheriff mclearman's recommendations we got that change eventually and we touch wood we haven't killed a a drilling worker since that hearing in 2003 we've come close but we haven't actually had a fatal accident in the drilling sector since because there were quite significant recommendations made there which not only the employers acted on the regulator used to enforce to a far greater extent and i think that's another aspect of recommendations that the regulator needs to be seen to be acting on those recommendations as well just as happens in the aviation industry one final point if i may please excuse me to mr tasker it's about improvements to access to legal aid you've made comment on that could you expand on that please i mean we we're certainly concerned in relation to and uh i came across one inquiry where the individual had represented themselves purely on the basis that uh funding was not was not made available to them and it has to be said it was it was in a a sheriff court in the northeast uh and the individual who was representing himself following the death of his son was absolutely taken to pieces by the sheriff because that individual could not present his case in a way that that sheriff was obviously expecting now i think one case where that is the case is one case too many but and that was purely because they could not afford to get legal representation and again uh they they did not feel that the fiscal was the appropriate person to represent their interests uh so we believe that that individuals should have access to legal aid if they want to be represented at a fatal accident inquiry okay thank you can you agree with that because the confidence in the crown office the property fiscal's office um as time goes on wanes um and the the families of of those killed have little confidence by the time the inquiry comes round and so come to to organisations like ourselves looking for support to get legal representation to represent their their interests okay thank you both i'm just i've got another two questions christian and if it's a supplementary i think and then elaine is something completely different before i move to that under section 10 of the bill uh subsection um one e it says the following persons may participate in inquiry proceedings in relation to the death of a person and subsection e says any other person who the sheriff is satisfied has an interest in the inquiry would that not cover if appropriate trade union representation well i'll start corrected but the sheriff as far as we're aware from our experience hasn't been involved until the inquiry has actually been staged it's been the fiscal's office the bill makes that plain i may be misreading it but the persons who may participate and there's a list of mandate you know they would expect the spouse or civil partner and so on or an employer if it was an employee's death but there's a section subsection e any other person who the sheriff is satisfied has an interest in the inquiry does the sheriff not have power as master of the proceedings as it were to say well i would like to hear from say the trade union in those circumstances that's what the boss says i would hope that that would happen well i'm just wondering i just put that to the subsection e christian what's your what's going on no i just want to come back on the sheriff on the decisions recommendation of the sheriff you said that there will be a difference between reserved matter and devolved matters but somehow that if we are devolved matters the sheriff's recommendation should be taking forward straight away what kind of mechanism would you would you see and where i'm my thoughts and it's just come to me in the last couple of days is that you know what power would a sheriff in our distinct legal jurisdiction have to instruct the UK government to bring forward legislation to ensure that mobile cranes were subject to MOTs i don't know you know that's that's maybe one for the constitutional experts but respectfully suggesting that would be i think that is the opportunity for sheriff to raise these issues in the appropriate manner our practicing i should refer to my declaration of interest and member the party of advocates i'm not not persuaded that in terms of the sheriff's role there is any distinction constitutionally between devolved and reserved there we are yeah it's good to have an expert yeah but would you agree on this that you know it doesn't matter if it's a UK government it's a Scottish government recommendation of course are important but you know i don't see how we can a mechanism to make it stronger than recommendations is there i mean there has to be a recommendation made by a sheriff and i'm going back to that one in relation to mobile cranes many years ago now has not been taken forward because it is purely a recommendation it carries no legal power basically so that's why we think that was a mother and her two daughters that were killed a father whose family was wiped out but you know the sheriff's recommendation a justifiable recommendation in our view has been totally ignored by the UK government because it is purely a sheriff's recommendation it is not a legally binding instruction basically so you're saying in fact but it the two governments are not responding the same way the two administration devolved investigation and reserved investigation and are not responding the same way so you're not is the reason you maybe think that we should be stronger but i i was maybe just complicating matters for myself in relation to the revolved reserved and i'm glad that we've got that clarification you know and it actually whether or not a recommendation should be enforceable and and there could be issues with that because we heard from Lord Cullen i want to move on to explore something that we haven't explored and conscious of time elene the bill is it in section six states that where deaths occur out with the united kingdom and the person's ordinary resident in scotland and the person's body has been brought back to scotland a fatal the provisions of the bill would apply in those cases obviously some industries fishing industry for example it might not be possible to retrieve the body of a person who's who's died i think possibly the oil and gas industry is is covered by section five and the petroleum act of 1998 though i'm not familiar with its provisions but particularly there are some instances where people employed by British companies and who are ordinary residents scotland will die overseas and the body is not retrievable should those also be included in this legislation i would say yes because i mean looking at the consultation that's on going right now for the the eu directive for offshore that talks about extending best practice globally to corporations so if if we come back to the recommendations aspect if a fatal accident inquiry were to be held and those recommendations were shared then it could have the impetus to to improve health and safety understandings and operations and share those learnings and prevent recurrence on a global scale i think one of the arguments about that has been again all the counter arguments perhaps is that it would be very difficult to enforce any recommendations in another jurisdiction i work with you that you know we're supportive certainly in relation to to where a worker is killed abroad that fatal accident inquiries are carried out because it has to be said that that we have some of the the best developed health and safety legislation and regulation in the in the UK a lot of other countries don't have that level of sophistication in their regulation and enforcement but that does not mean to say that for the UK companies or Scottish companies operating abroad that they can't learn from a fatal accident inquiry from a worker that is killed abroad and actually make changes within their own organisation to ensure that the risk of workers being killed abroad is reduced so we think that there are positive things that could come out of that but i think we appreciate that perhaps in some countries even carrying out that level of investigation may prove difficult because of the circumstances within these countries. Does Police Scotland are quite concerned about the implications for the police as to whether it would be them that would be expected to do the investigations elsewhere if there were criminal investigations and so on? In our view and the HSE I probably not going to like this but if it was a death at work you know we would say that the regulator in the UK should investigate that death but you know clearly there would be resource implications in relation to the HSE and their capacity to carry out that additional task. I'm conscious of time so if it's yes please. Yeah just just to add that on this I see from the MRT IMT submission that you talked about the problem of ports having on the convenient flag for example I've got great difficulty to understand on your submission what you are saying how we can override over jurisdiction and I can't see how we can put that in that bill how can we override over jurisdictions abroad of when it will be investigations. I don't know that we're arguing we override other jurisdictions but we're arguing certainly that marine accidents should be subject to the same level of inquiry if they're happening in the UK waters and that irrespective of the flag of convenience because it's occurred in the UK state there has to be learnings to ensure that vessels entering the UK waters are fit for purpose that they're acting in accordance with the jurisdictions of this country because again because of resources the ability of the MCA to look at these vessels to ensure and police and inspect simply isn't there so if we're not looking at it by way of inquiry we could we've got no means of stopping or preventing recurrence. I understand the UK waters but what I've got difficulties is when you're talking about other jurisdictions waters. No, but no, I must. Isn't that like this abroad and it includes in on UK territorial waters as well so I think it's covered by that Christian? No, what are you saying? Talking about practicalities. Both of you are not asking to duplicate what's happening abroad whatever we feel the level of of security is as good as it is in the UK. That's what we're trying to achieve. I'm moving on and this is oh excellent I've given you one of my crushing looks I hope. Can I say I bring an end to this evidence session thank you very much for evidence gentlemen we were testing you because that's what we're required to do to make sure we get the law operating in the interests of everyone properly so I hope you accept that. I'm going to suspend for five minutes to allow witnesses to change over thank you very much. Thank you resuming business I welcome the second panel of witnesses to the meeting Alistair Mcnab head of operations in Scotland at the health and safety executive Dr Gary Morrison executive director of medical the mental health welfare commission for Scotland and Kathy Asanti excellent legal officer human rights based approach Scottish human rights commission I thank you all for your written submissions and I go straight to questions from members Roddie Margaret Lord Cullen's recommendations have not been totally taken forward in terms of deaths during people of people who are being detained if you like who are not just within legal custody but your mental health attention and others and I wondered if you had any comments as to whether you should thought Lord Cullen's recommendations should be implemented in full in that regard or whether there were problems with that and I make it plain sorry again that if you just indicate that you wish to respond I'll call you and your light will come on microphone who wants to address that miss Asanti thank you it is our view that there is a gap in relation to protection of the right to life in relation to those who die in mental health detention in terms of the the requirements of article 2 the right to life under the European Convention on human rights there is a duty to investigate deaths particularly of those who are in custody of the state in recognition of the fact that they're in a very vulnerable position and the European Court also recognises that people who are in mental health attention are in a particularly vulnerable situation so when looking at article 2 the the European Court has set down certain requirements that are necessary for investigations of this nature and there are some essential elements to them firstly inquiries must be independent they must be effective they must have promptness and reasonable expedition must be an element of public scrutiny the next of kin must be involved and they must be initiated by the state now we know that there is a system for investigating deaths that do happen in hospitals including in mental health attention but at the moment it's it's quite variable it's spread across a number of agencies and we think that there are gaps there's no there's essentially no independent formal inquiry that takes place as a matter of course for deaths of that nature so for that reason we do think that deaths when people are in detention under mental health legislation should be brought within the category of mandatory FAIs as Lord Cullen suggested but having taken into account some of the discussion that's arisen since his report we do think that there's some merit in considering a two-tier system whereby there's an initial investigation carried out to rule out deaths perhaps from natural causes or ones where there's really no no further cause for concern and that mandatory FAIs should apply in all other cases mental welfare commission have put forward a proposal for a two-tier system of that nature and we think that that merits further consideration Dr Morrison yeah but it was our position simply put is that we don't agree that there should be mandatory FAIs for all people who die whilst detained under the mental health act but now do we think that the current system is is adequate broadly speaking for the reasons that that Kathy's outlined that the current system doesn't comply with the requirements of article 2 particularly that of independence and also I don't think the current or we don't think the current system provides adequate public reassurance as part of our submission we gave you some information about a bit of work we did looking at the deaths of people detained in a year and just very very quickly to aid you in one year there were 78 deaths we managed to review the case notes of 73 of them so off the 73 people who who died 39 were of expected natural causes that included a 67 year old man with alcohol related brain damage he had cancer and died in a hospice a further 14 were unexpected but natural so that included people who who died suddenly have a heart attack or a stroke so we would argue that that if you looked at these 54 out of the 73 deaths and had a mandatory fatal accident inquiry for all of them that that's not really an efficient use of resources and probably importantly would be distressing for the families of the people who've who've died plus detained yes but of natural causes so as Kathy's mentioned we're suggesting that there should be changes to the current system to introduce more independent oversight more public reassurance but not automatically having a fatal accident inquiry in all cases other than in legal custody for example any death will be subject to an FAI even if it is for a different natural causes so why is that different when you're in legal custody or subjected to a couple of compulsory treatment for example yeah no i appreciate that and i know that that was one of the arguments that Lord Cullen made when he appeared before you a few weeks ago i mean i suppose i would say that you know what what they choose to do in legal custody is up to them but looking at the information we've got it just doesn't seem proportionate and effective or reasonable to do FAIs on 54 people who have quite obviously died of either expected or unexpected but natural causes and as you were hearing about in the evidence session earlier FAIs don't happen quickly families get very anxious and distressed by them and i think that's one of the one of the bigger or more significant arguments about this is the distress that could cause families from an HSE perspective in the situation really the investigation phase so i would agree that in many cases we would not be investigating all of these in fact most of them would not be mandatory reportable to HSE in any case the way we would learn about them would be selected ones would be put to HSE by the crown office procurator physical service either their health and safety specialist division or SFIU the fatalities investigation unit would they think there might be a work related element they would then contact the HSE if HSE does initial inquiries to establish the circumstances to decide whether or not further investigation would be required and you know my feeling is that works fine at the moment as far as FAIs it's certainly true we haven't been involved in many FAIs to give you some context HSE investigates between 25 to 35 work related deaths a year sadly and we give evidence to approximately 10 to 15 FAIs per year some of which are pretty complex and require a stable legal representation to explore the policy and sectoral issues behind them vast majority relatively straightforward and simple and have quick investigation so i heard earlier evidence that suggests everything takes too long but but very many investigations are complete within three months there are complex ones that certainly go beyond a year so we wouldn't have a difficulty with the investigation phase we're happy that COPFS refer the right ones to us and we can then take a view and feedback and report to the to the crown office whether or not we think there's any potential breach of health and safety law and for police related ones we have working arrangements with PERC to investigate relevant ones as well so we'd be looking at something either in addition to one of the sections or a separate section for deaths occurring when detained under mental health legislation is that what you're saying taking your two-tier test yes i think we would be looking at i think it's section six of the bill and what we had suggested was that that section could include in the mandatory category deaths in mental health detention but could also have an exclusion in the way that some of the other categories do where lord advocate is satisfied that the circumstances of the death have been sufficiently established during the course of an inquiry by the mental welfare commission in this instance not a presumption of fai but mandatory i was thinking there'd be a presumption you might argue it could be a presumption of fai subject to other tests you're as presented by the mental welfare commission i think that would amount to broadly the same effect however it were drafted yes it amounts to a presumption that it would take place unless it was ruled out by the mental welfare commission okay okay um anybody else on this particular point no rod then mark the analysis yeah could i just kind of direct your attention to the policy memorandum um where the Scottish government refers to the royal college of psychiatrists graduated scale of investigations adverse incidents critical incident reviews involving a consultant from another health board area significant adverse incident reviews involving another health board then independent investigation by the mental welfare commission and then finally an independent investigation by the procreator fiscal and possibly a discretionary ffai ffai they talk about possibly formalising this system and rationalising it not necessarily in legislation um and in particular in terms of the powers of the mental welfare commission would it not be more appropriate for that to be in mental health legislation rather than this legislation so i really would like some comments on that bit of the policy memorandum what page is that it's page 22 page 22 by Dr Morrison yeah i mean would i mean recognizing that there seems to be not lord with cullin notwithstanding that there is certainly a case for minimising the number of fatal accident inquiries particularly in cases of people dying for natural causes is this not one way forward it's certainly an option and it's something we've had discussions with the the royal college of psychiatrists about um and that that may well be what they're referring to because at the moment there's substantial variability in the system um and particularly there's variability in the in the degree of independence so in a substantial number of critical instant or even significant adverse instant reviews that happen um there'll be nobody from out with the local service and and that runs the risk of following file of of the article 2 requirement for for independence so we would be seeking um where our suggestion to to be taken forward some more um either powers or or agreement with local services to oversee and to direct their local instant review to make sure that either they've taken it sufficiently seriously and also that any conclusions are are are robust um i suppose whether this this happens under under the legislation you're currently considering or under mental health legislation um it's possibly more of a of a discussion for for lawyers and and draftsmen but i do know that the the second stage of amendments to the mental health bill um i think closes this week so they might not welcome a suggestion that we we change something at this stage yes i would support what dr Morrison is saying about um some of the the article 2 requirements that are missing from that graduated scale of investigations and that's really where our concern arises and particularly around independence but also around public scrutiny and whether the next of kin is involved which is is is variable in this system at the moment um so we do think that more needs to be added into the system to make sure that all of the article 2 requirements are met um whether that happens in this legislation or mental health legislation um we don't have a particular view on it we did actually i think raise this in relation to the mental health bill that this was a gap that needed to be addressed but since it hasn't been taken up in that forum we think this is a good opportunity to take it forward thank you um Margaret followed by Alison please it's just that on that specific point of the family's involvement the recommendation in the calendar report not implemented in the the bill for financial reasons was that the reasonable test for legal age should be dropped in the interests of the the family having better chance of securing legal representation could i have your view on that and they wish to take that one up it's not something that we we had commented on in our response but in terms of I suppose the human rights implications um there's no explicit provision on the right to to uh legal aid in cases of this nature um within the European convention rights but there is an issue about equality of arms um in allowing people to to participate on an equal basis with with other parties that do have legal representation so there may be a case to be made to to um to make sure that people are provided with legal representation in in these types of cases i was just picking up and specifically what you just said about the degree in which the families were involved and making the link that perhaps if they had the legal representation legal aid to to facilitate that that might help yes certainly that would facilitate the the involvement of the next of kin it would be a strong measure for ensuring that that happens as a matter of course within within fais more generally can i ask you about delays and the recommendations to hold an early hearing and i know what dr Morrison said that by and large that there isn't a huge problem i think with mental health cases about delays but sometimes there can be i may have picked up wrongly but could you comment on the early hearing recommendation in in particular yeah if i said that delays weren't a problem in mental health i must have been misspeaking because certainly the the few cases that where i've been involved that have proceeded to a fatal accident inquiry the the interval between the the death and the inquiry seemed to have been very substantial i listened to the earlier evidence given and that i think the main issue is whether an early hearing prejudices in any other in any way any further action that might be taken no from the evidence we had it would be a procedural matter about progress being made but substantive issues i think when i asked or come will not be raised it wouldn't be prejudicial to criminal proceedings yes it's just a on on process to see are we ready to go ahead if there's a delay what's causing the delay it's something i think to to really pin down the crown of procurator fiscal service and to make them accountable and not just an early hearing to say another date if it hasn't been possible to establish why there is a delay so it's always kept in view i would have thought from the point of view families that that would be helpful that they they know that something is happening and they they have a rough idea of what the timescale for the for the something is and as you say if it helps to prompt agencies involved to to take action that way again would be very helpful for the families i think again so there's a stage before at the investigation stage where hse and the police and the procurator fiscal service do talk to the families we do explain what our role is we obviously have to control expectations because we can't see at an early stage whether or not there may be proceedings and that's not our decision but we can explain the the investigative process and we can explain what hse does and that's what we try to do now i think there can be improvement to that phase i know that's not the prime purpose of examination of the bill but you know hse sees the investigation phase very much leading into the to any fa or any decision on proceedings so you know there's no doubt there can be improvements in liaison with the families and explaining how the process works and where we do that and you know we we do get praise for supporting families and they understand what's happening we can also give them an indication of how complex the investigation is that it will take time so in a way the early hearing might facilitate that putting it actually in the bill that that has to be done within three months might be helpful yes what wouldn't help i think would be you know the statement of fact fact issue because from hse evidential position in terms of criminal law you know we're not investigating for fatal accident purposes absolutely we're investigating for potential breaches of criminal law and safety alerts and there's other there's other steps about enforcement notices to prevent recurrence so our main aim in life is really prevent the incident again by enforcing if necessary by enforcement notice issue safety alerts where they can be done and we can have safety alerts issued in agreement with the procurator fiscal service to avoid prejudice so it's possible by careful wording to put a safety alert out and we can therefore influence a wider community and you know that was done for example Legionnaires outbreak in Edinburgh where we did put safety alert out about our research on what causes outbreaks of Legionnaires and that was agreed with the procurator fiscal service to avoid prejudice to potential proceedings in the future so you know again we see really the whole process from investigation phase through and good communication at the start of that of the investigation phase i think we'd help families while nobody else is indicating okay i can't poke them with a stick from here i make you answer i've got somebody is this a supplementary different issue you're on my list there john it's a supplementary thank you that was interesting the range of powers you have at the moment and could you expand again our current maybe it's just myself that didn't pick up on the issuing the safety notice without prejudice is it is there something that perhaps if it was more compelling than just simply a warning how can you do that without prejudice well that's what i'm saying if we believe there we're going to be reporting to procurator fiscalness this depends on the stage of the investigation but if we think it's important enough that a safety alert would need to be issued i'm thinking about for example well an example might be child gets killed in electric gates in Birmingham or the midlands hse in england and wales would put out a safety alert well we would want to do the same if it was a Scottish investigation but what we would be doing is talking to procurator fiscal service as early as possible to say well we think this is necessary and certainly my discussions with the procurator fiscal service they would not wish to constrain a safety alert the hse believes is important and we'd look to try and negotiate a form of words of voice particular prejudice against a particular duty holder employer but makes the generality open to the public now that is done reasonably regularly we don't have to issue safety alerts for every workplace death investigation it's only where there's new information coming out on a new topic perhaps where we want to get the word out as quickly as possible so that can be done the same with enforcement notices you know we issue enforcement notices once the appeal 21 days period is up the notice goes on to the hse public database so you know these things can be done without prejudice to future court proceedings and we're we're well versed in how to do that and it's all about clear dialogue with c o p f s and the police we have tripartite investigations for work related deaths there's a work related death protocol for scotland as there is for england and you know that's all about tripartite strategic decision making it's about the police looking at potential corporate manslaughter corporate homicide act reaches alongside hse looking at potential health and safety work out reaches so the situation in the investigation phase can go a number of different directions but we are very conscious to avoid potential prejudice to proceedings and can i ask in relation i mean that the nature of your organisation is one that it's proactivity it's prevention rather than cure that you'd be seeking yes and you know a political philosophy suggests that in fact talked about slaying the health and safety monster if you know that that was well you will know that was said do you have sufficient resources to be proactive even in relation to the in the event of a death and can you see what liaison you have with trade unions and staff stations staff stations who have a statutory duty to inspect the workplace and they will presumably have records in many instances that would facilitate your investigation it was difficult to answer on resources and how much is enough to for any organisation to have we have sufficient resources for the number of workplace deaths that i've said that's a top reactive priority for us is to do thorough investigations so that will always be resourced we're still managing to run a proactive inspection process so we you know Scottish workplaces do get proactive inspections to try and prevent incidents happening and we target you know based on statistical evidence and local knowledge about which are the places and sectors that would be best to to look at for example waste sector or construction stress have not been critical of your work it would be supportive of your work yes facility you're having more resources that's very helpful thank you the piece any more for health and safety we're told here so that's one of these myths that we've tried not to pin on it not helpful can i return to something you do you can investigations into all workplace fatalities well if it's not not natural causes fatalities it would be initial inquiries only anyway quite often we get out of ours calls i'll get calls where it's not certain whether it's maybe natural causes as opposed to a work related death so initial inquiries with the police we'd established that but yes anything that's a portable death at work would come to HSE or local authorities because as you know local authorities are co-regulators for warehousing and leisure type activities whereas we do the more factory end of the market so the answer is yes but it goes beyond what you might think of as you know factory type accidents into issues you know mental well mental health suicides and prisons suicides and healthcare the health and safety work acts are very broad piece of legislation as you know and and so we get brought in by the procurator fiscal into many issues are not directly reportable to us a road related death for example knows being of interest and there's been some submissions on on that HSE the main role in work and road related death would be policing police led of course under road traffic legislation but the police do involve us from time to time where there may be management systems behind hours of work or allegations about driver practices employer practices then HSE can be brought in and we have been brought in usually the phrase cause and permit allows the police to look at management systems and employer duties as part of road traffic legislation but there are occasions where HSE's health and safety work act would be more appropriate to look at and we have discussions with the police about when they should let us know and similar with the procurator fiscal service so it's a very wide range of issues there are many fatalities where as I said earlier the crown office alerts HSE to see if we would have an interest and that's the kind of relationship we have it's very proactive to see how broad it is John a further point of a me miss mcnaven it's from your your evidence in response to the question of fixed timetables you've said that the question of delay and investigation is real and should be minimised wherever possible however the HSE believes that it is possible to achieve this without resorting to the inflexibility of fixed timetable can you can you say how you think it can be improved without that I've mentioned the work related death protocol for Scotland I mean we've been working together with the police and the procurator fiscal service and it really well before the health and safety division of the fiscal service was set up but since that came into being we've all made a concerted effort to try and speed up the investigation process and it's not you know I'm not going to claim that there aren't some that do drag on too long but the vast majority is a priority for HSE to do as thorough and as quicker investigation as possible because we do recognise that you know the families needs in these situations and indeed the employers needs and indeed the need as I've mentioned to to tell the wider world what lessons need to be learned but the situation is that we in discussions with having five years of experience of this tripartite working police and HSE COPFS then we're looking at ways of well what have we learned in those five years how could we improve the speed of investigation so I think there's we've already agreed issues with Police Scotland and with COPFS about how that could be done the complexity comes in the interaction between the corporate manslaughter and corporate homicide legislation and health and safety legislation the thoroughness that's required to examine larger corporations with complex structures to look to see whether corporate homicide is there is not a possibility that takes some degree of investigation it's not going to be a short investigation and that's a police led police primacy is the term we would use but we're in partnership with the police and the procurator fiscal so it's all about that that strategic decision making if that's done properly week one day one week one month one direction of travel of the investigation is known by all the parties to that investigation and we can then talk about the resourcing that's needed for the investigation to make sure that the you know the reasonable pace is kept up so that's that's the investigation phase and I think we've we've put steps in place to try and improve that where possible. HSE does set itself in-house expectations about speed and in Scotland we've always had a good track record because of the to put interim reports to procurator fiscal to tell them the direction of travel that we think the investigation is going then we're quite comfortable with having some timescale expectation on us and part of my job as head of operations is to make sure I've got enough resource inspector resource so we might double up or treble up or put extra specialist resource on certain investigations to try and keep them moving but I do accept occasionally some run far too long and these are the ones we're trying to look at well what is it that's causing the delays it may sometimes be and this is obviously I realise Police Scotland will be giving evidence you know but there's resourcing issues for both Police Scotland and for HSE but like like us Police Scotland put a lot of resource into what related death investigation and rightly so and just can you clarify would the HSE make a recommendation to the Crown Office procurator fiscal service that a corporation should be the subject of a prosecution yes that's regularly done and it would be a practice where there's evidential sufficiency and in our views in the public interest we would report on that basis to procurator fiscal service that happens every year to quite a number of cases and would that be two separate reports to COPFS normally be if we do an interim we'd have meetings with COPFS and the police and obviously give it verbal intimation of what we think the direction of travel and sometimes it's very obvious to us there's a alleged breach of law and is that shared with the family are able to say Mr MacDonald no that wouldn't be shared with the family because that that's our opinion we would report objectively to Crown Office procurator fiscal service as we de-police and on that basis Crown Office would report to Crown Council and Crown Council would decide whether or not it's a prosecution territory or whether it's an FEI. The turn to a related issue on earlier discussion about deaths during mental health detentions um are there also human rights considerations in relation to the investigation of deaths of those subject to say for example compulsory treatment orders within the community but where the liberty might be quite significantly curtailed or or under welfare guardianship um yes i think that's it's quite a difficult question um to to get the right balance the the coverage of of the article 2 requirements um is essentially strongest in relation to people who are in the custody of the state um some people who are on community orders may simply have a requirement to take medication but might be living in their own home they probably wouldn't be considered in the custody of the state but other people under community orders and also under welfare guardianships might be required to live somewhere against their will so they are essentially detained in a place that they don't wish to be and i think in in some of those circumstances those people might be considered in the custody of the state so it's difficult to strike the right balance it probably wouldn't be everyone that's subject to an order of that nature but some of those people may still require the same protections as those detained in hospital and you want to comment mental welfare commission point of view yeah i mean the of the 78 people i mentioned who died whilst being detained over 30 of them were in the community so out of the number of people who detain each year the issue you you raise is is clearly significant and i would to answer part of the question just echo what kathy has said there'll be some people that are on a ccto who are living essentially a normal life except that they have to go once a month and get medication and so it'll be very hard to say that they they're their liberty is being restricted or or they're being deprived of the liberty by the state then as kathy says there'll be other people on community orders who have to stay in a certain you know possibly supported accommodation who can't freely go out without staff with them and then you could say well yeah they are getting nearer to the the state depriving of the liberty the issue you raised raised a bit welfare guardianships is the one that's potentially scariest if that's a technical word that i can use in front of such a committee but there there are close to 10 000 people in welfare guardianships in scotland at the moment probably about 40 of them are older people with dementia their liberty will be being restricted because most of them will will be in care homes where they can't freely go out because of their age and their frailty they're highly likely to die over any period so if we were thinking that this large number of people also required fatal accident inquiries um we you know we would be introducing something that was probably entirely unworkable into the system um as well as i say distressing lots of families who's you know who's his grandmother with dementia has simply got pneumonia and died as older people do i wonder if you think there's a subset of that group then that might need some further analysis or looking at i mean i know that many families feel that there's um have concerns about the overuse of medication for example in in such circumstances in care homes whether there are any circumstances that you think we should be looking for FAIs um off the top of my head no because i think it'd be hard to to sift out in that population which issues were of most concern i mean i suppose in a preventative way that the Scottish Government's been doing really good work as part of the dementia strategy for the past few years to deal with people with dementia who have stressed and distressed behaviors without resorting to medication um so hopefully that would prevent that kind of situation i suppose in that situation the we would be relying on the on on the discretionary kind of role of the of the the procurator fiscal and the lord advocate where somebody felt that circumstances were out of the ordinary to to raise it directly with them okay probably also a role for care commission have elected which is something that seemed to be happening within a particular care home yeah um rod thank you mr right now but just like to turn if i may to kind of your views on it is yes that's not the care commission that's all that yes sorry about that right here given spectrum to the question of them the status of sheriffs recommendations at the end of a fatal accident inquiry perhaps you could give us your views on yes our view is that we would not support mandatory because the experience is that inquiry is important as they are and but they don't always cover all of the issues nor do they always call all the right witnesses to you know so that the sheriff could be left in a position where putting mandatory decisions on regulators like hse or other parties when actually there may be more of an issue there may be other risks emerge which have not been debated at the fei now that would be it where obviously if hse was giving evidence we would try and you know give our view to prevent that happening but at the end of the day an example the best example i have and i know it's dangerous to use one example and say well therefore that proves the case but the rose park care home fire for example where hse i submitted pages of written evidence but for various reasons hse was not called to give oral evidence so our evidence was never tested in the public domain the sheriff's determination which i would say hse has always tried to act on sheriff's determination we see them as important we always have done we would always do our utmost to comply and to promulgate information to other government departments if that's relevant um but in that situation the sheriff put a recommendation on that actually neither ourselves the fire and rescue service of scolish government we had meetings of all these parties to try and do what the sheriff wanted but couldn't actually do exactly what the sheriff recommended now that was never explored at the fei and gave hse quite a few problems because the assumption was that hse in future would inspect electrics in cupboards in care homes but actually it's not a priority area for us to inspect statistically you know one major incident terrible as it is does not necessarily mean that we need to be inspecting every single care home so that that was never explored so you know that's the issue for me is really about just very pragmatically why we would prefer that it's left as a strong steer the example i was quoted about the family that was was killed in the by the by the crane hse was involved in that we had legal representation the reason being because it was a complex interaction between road traffic legislation and health and safety at work act hse tried to take forward the sheriff's recommendations even though we were not the main authority because the main authority was department of transport who did not give evidence we took forward the sheriff's view that these cranes should have road should have mot's and we we actually took it upon ourselves to go beyond what what the fei and sheriff had said and we actually approached dot directly ourselves we also approached the the mobile crane association so we did everything we possibly could do but it was not within our gift to make it happen as i understand it actually i believe mot's for for these cranes road growing cranes is being looked at in the uk but there's a cost to the facilities to actually test them so there's a whole lot of issues that were not explored at the fei in that crane incident which would make it impossible to meet a mandatory direction whereas it's very possible for hse to do something as as things stand at the moment or with the proposal that's being put forward to to you know to give a strong steer and to ask parties like hse to respond back to the court as to what have we done and if we can't do something we would be more than happy to give an explanation of why there are constraints on what we can achieve thank you that's interesting so um so what you're saying is if if the recommendation's not mandatory there could be a further hearing am i understanding it with the sheriff regarding difficulties i think what's proposed under one scenario would be that sheriff makes a recommendation the relevant parties i'm taking hse being a relevant party hse would do its utmost to comply would respond back to the sheriff as to what we're doing and why if however we couldn't quite agree that there may be other risks created we would point these risks out there may be a reason why hse's not the right relevant authority right because we might not have the uh we might not have the viaries the legal the legal responsibility to take all of the recommendation forward that would then be that would be our response back so be a public explanation of what we have done and if we can't do it all why not and we would be very comfortable with that because that's pretty much what we do anyway it's just that it's not fully in the public process at the moment patricia thank you can be in our morning it's like that i take your point but the sheriff presumably would make recommendations to him so ever he thought it was appropriate to make recommendations to not necessarily to hse and he would surely make a judgment as to who the appropriate authority was yes i accept that yes yeah i'm thinking about the example you gave of rose park and i understand the difficulties that may have occurred there however i'm also thinking in connection with the crane incident that yourself and mr tascar earlier mentioned and mr tascar did say that the sheriff had written to the UK government to ensure that mot or to try to ensure that mot's for such vehicles did become the norm or the requirement and you've told us that that is actually going to happen so that would suggest to me that that is a recommendation made by a sheriff that actually perhaps couldn't have been binding but was a good one for that sheriff to make yes i accept that but in that case i would i would submit it we would have been better had the department of transport been at the fei to lead evidence the point is the hse is not the relevant regulatory authority for road-going cranes and the safety of the road-going equipment we are we are have a responsibility on the crane lifting equipment rather than the crane itself so that's really my point is that the relevant people that have the expertise would have to be giving evidence to fei for the right decision to be made in the recommended sheriff's determination i don't think that's necessarily an argument against the sheriff having the option of making a recommendation where they think fit however and i would you know you said you you know you raised rose park as an example and perhaps using one example is is not always helpful but you know if you look at the bell grove in newton train crashes for example they happened years apart recommendations were made by a sheriff of suggestions that could have prevented another such accident happening and four years later i believe exactly the same issue are always again because the sheriff's recommendations had not been put forward and had not been taken account of by those responsible so those are the kinds of recommendations that i think the committee is trying to consider whether it is appropriate for a sheriff to look at those cases yes i mean i certainly can see the i can see the argument but as i say for the hse's position is that we believe we can achieve the same outcome because at the end of the day those issues that fault hse's a regulator we have always tried to promulgate professionally we don't ignore determinations in any in any way um all i'm saying is hse's not always we're talking about complex overlaps of legislation that don't always lend themselves to to fully being explored at an fair and that's just that's just a fact but i was just trying to establish a convener that we're not actually talking about hse necessarily we're talking about the sheriff making recommendations to which everybody is appropriate i appreciate that i think it's whether or not if it's mandatory it's practicable enforceable and appropriate from what you're saying from that previous one would that section 10 one subsection where was my subsection e any this just allows the sheriff to call any other person who the sheriff is satisfied has an interest in the inquiry does that happen just now can a sheriff say i think i should have hse in front of me or whatever the trade union well well for hse is slightly different because we are as you'll see and the current bill just repeats takes on the power for hse to be be a witness anyway so we've always had that ability so a work related death that falls within hse's jurisdiction we would automatically be a witness but in the case you're talking about you weren't and neither were transport that wasn't unusual one which is why i said i didn't want to try and quote one case as proving everything else that was unusual we did give written evidence as i said but not oral evidence and i would say in most cases hse inspectors our specialist inspectors give evidence to work related death inquiries feis so you know we are represented we and part of my job is to look at the wider tactics so if i think this is why i mentioned that we for certain ones we would have legal representation because we think it's we need to explore some policy areas that would actually help the inquiry and in which case that seems to work pretty well and the determinations do explore the territory we think you know would be beneficial in the public interest well i want to thank you all for your evidence um it's very very interesting and a very interesting area for us to explore could i then suspend for a minute just to allow witnesses to thank you very much to change over move on to the final panel of witnesses we're only much i welcome the third and final panel of witnesses to the meeting i welcome Ian Miller executive legal manager at Glasgow city council and dcs Robbie Allen of police Scotland can i thank you for your written submissions and i'll go straight to questions please i'm looking to my left this time to let you all come in earlier if you wish but you're not responding so aileen and margot the faithful to i wanted to ask witnesses first of all about the issues regarding deaths during a detention under mental health legislation or indeed of children compulsory living away from home for whom particularly Glasgow city council local authorities will be responsible for some children who are not resident at home and i wondered if you could maybe outline what the current arrangements would be and whether these are sufficiently independent mr miller thank you thank you certainly the Glasgow city council is supportive of the the proposal in the bill to have a mandatory inquiry for any child who dies in secure accommodation and the local authority may well be involved with such a child being looked after in terms of the relevant legislation and there are other regulations namely the looked after Scotland regulations of 2009 where there is a compulsory measure whereby if a child who is looked after by the local authority so we're not just talking about children who are in secure accommodation but basically any child who is in the care currently in the care of the local authority then if that child dies then the local authority must notify the the Scottish ministers and the care inspectorate that must happen within one day of the the death and within 20 days there must be a further fuller report submitted to the care inspectorate now one of the things that would would certainly happen within the local authority setting irrespective of that is that there would be undoubtedly a significant case review looking at all the circumstances currently we are we are well aware that there could be in these circumstances it would be a discretionary fatal accident inquiry so very early on in these circumstances the local authority would be well aware of the the real possibility even although it's one of the it's one of the circumstances where there's a discretionary FAI of a fatal accident inquiry so overall the council has responded that they think that the current measures are are sufficient there's no argument for making it as Lord Cullinbaw himself would have recommended that it should be mandatory in those circumstances i hesitate to to refer to resources but one wonders in how many circumstances there would there would be mandatory fatal accident inquiries also what would they achieve what i would argue is that in terms of certainly the looked after children's scotland regulations and the reporting mechanisms and the the early reports internal investigations which have to be made that there are there is an early investigation of all of all the facts and there could well be further scrutiny at the instance of the Lord Advocate in terms of a discretionary fatal accident inquiry so certainly in our experience and certainly having canvassed widely within the authority within those who are principally our social work department and those who are involved in social care we would not see it as a currently a requirement to be a mandatory situation. Do you think they're sufficiently independent if it's an in-house inquiry? I don't mean to be scathing that's not the meaning but it is in-house and do you feel that that's enough independence? Well there wouldn't just be that there is this report in terms of the 2009 regulations to not only notification within one day to the Scottish ministers and the care inspectorate and a further within a further 28 days there is a much fuller report to the to the care inspectorate and the care inspectorate would review that matter in terms of seeking medical information looking from an education point of view would also separately laze with the crown office and procurator fiscal service so from that point of view I think there's you know there's certainly safeguards we're not just talking about an internal inquiry. Alison I think you wanted to ask that but you want to go on and ask more about that. That's fine. You sure? Do you want to come in as I trample on your bit then on the stakes? Perhaps later on. Okay Margaret. Yes we're into the afternoon. Good afternoon gentlemen. I wonder if you could comment in terms of delays the column review recommended and please Scotland will obviously be involved in the initial investigations and the establishment of a specialist unit within COPFS to ensure that the unit was and COPFS were properly resourced and hence by connection ensuring that there was no delay because of a lack of resource. Could you comment on that specifically? I'm quite comfortable with the current arrangements in relation to the death units that are set up within COPFS so obviously we investigate the full variety of deaths from criminality corporate accidental engage with HSE as well and there are specific units already established within crown that we go to in relation to each of those types of deaths depending on what it is. I don't think that the lack of another specialist unit is causing any delay from my personal opinion. I believe that what's in place is sufficient at this time. I suppose it was a resourcing question and I note that please Scotland had raised some concerns that if we look at deaths abroad then there would be an investigation element and therefore a resource element connected with that. We were basically just trying to wrestle with what that looked like, the deaths abroad, what that exercise looked like when it was applied within COPFS and Police Scotland. Was it very much a paper exercise where we were taking information from abroad and reviewing that? Was it more proactive than that? What did that level of intrusion require to be? Obviously it's not something that we do at the moment so there would obviously be additional resource required to undertake that depending on what level of scrutiny was going to be applied. I'm going off the resource issue now on to the question of an early hearing as opposed to a preliminary hearing where it's procedural held within three months and really just an assessment of where we are, if there are going to be any delays and explanations why there are going to be delays and a way of keeping the family informed and keeping the Crown and Precurator fiscal, I suppose, by extension the police and anyone else involved in it very much on their toes. Absolutely, fully supportive of that. I haven't been involved as a senior investigating officer on a number of those types of inquiries. Obviously we will undertake a considerable amount of inquiry in that first three months. There's no doubt that that's when a great deal of the work is done and I think it's only right that based on that initial work that's done that also gives us a clear idea of as to the direction of travel going forward, whether there's to be corporate issues, whether there's to be, it is going to remain within an HSE environment. I think that that three month timeline is good and it's one that I think a significant amount of information can be handed over without getting into the specifics of the actual case and evidence and things like that and I think it does give a great deal of transparency to the families, to the interested parties, as to the to the kind of timescale that we're working to. Obviously every inquiry is different and there will be some that are much further ahead at three months than others have been involved in somewhere that you get to a certain stage and you need to stop because you're awaiting another people but even if that was made since that was made obvious at that time I'm involved in quite a high profile one just now where I can't do anything at this time until I get a report from an outside agency. I think even if that was out in the public domain and that's what stopped the police inquiry at this time that would be very helpful to everybody. No other views? No particular comments on the early hearing. Rod? TCS Allen, is there any information that you can share with the committee on kind of current practice in the triangle between yourselves and the Crown Office and kind of the family of victims of people who might otherwise be looking for a fatal accident inquiry? How does that work in terms of communication? At the moment the process will be obviously the police will deploy to every death and normally when it's a death of unexplained and either a suspicious type of death we will deploy family liaison officers so that initial engagement with the family is there and we certainly will keep the family updated during that initial aspect of the police inquiry and they'll know what we're doing particularly around about how we are managing that initial investigative strategy, the scene etc. Where it then moves on to is once we've done that initial piece of investigation and we ultimately will report the circumstances to COPFS I think that's probably where we need to tighten up a fair bit in relation to we're not that we back away but we've done the work that's expected of us we've reported into Crown there then is an onus on Crown at that stage I believe to maintain that engagement with the family because it's basically into the judicial process then so I think that's the bit that probably needs to be tightened up a bit in relation to that longer piece of that longer time when it's going through the due process. Is there anything in the bill that you would like to see in that respect to improve matters? I think we go back to the Canella question about additional resources I think there is mechanisms in place by which Crown and police engage with families probably we find that that that is a difficult thing to do just resources and the timescales involved in it so having a sufficiency of resources to do that would be absolutely paramount. Going back to the death occurring abroad and I was looking in the contents of the bill on section 6 and 7 I don't see any details there about what you would be expected to do and is that your worry would you like the bill to be more precise of what kind of engagement you should have with all your jurisdiction and if there are travels, if there are languages, if there are other things to do would you want it maybe to specify that you wouldn't want to duplicate work which has been done abroad? I think that probably does need to be made clear because when our initial reading of it it wasn't clear my first question is does that mean that we need to deploy police Scotland officers into a foreign country if that's not what's intended from the bill and it is an exercise of that we engage through foreign and commonwealth office get the information from that that country review it, assess it, ascertain what we're doing then that's fine but if there are huge logistical issues if we've to start to deploy officers abroad so I think we would probably look for just some clarity around about that that's not what's intended here and exactly what it is that we are expected to do. DCS, Alan, when matters are drawn to a conclusion and an investigation comes to an end into a death what systems are in place to communicate or liaise or discuss with families especially as they're not happy about the outcome of the investigation and would that include giving them information or letting them see evidence? How is it all that drawn to a close? Again that would be down to COPFS the ultimately we will report to COPFS in relation to all deaths now what would say from police Scotland's point of view no matter what that death is we deploy to we would go on the assumption that at some stage the circumstances of that death will be tested within some form of judicial process whether it's an FAI whether it's a court case so we will undertake the investigation to that level there are ones and we will then report every death to COPFS if there is absolutely nothing suspicious it's very much as a result of natural causes that will be communicated to the family if the circumstances are such that there is something more complicated and there's more explanation request to go to the family to me that would be very much down to COPFS because it's they who would make that decision as to how you move forward from that police investigation okay thanks thank you well that's thankfully for you is brief although you've got to wait while on it but thank you very much for your evidence that concludes this session and um I'll suspend for a minute just to allow the witnesses to gather the papers thank you item four members content to delegate authority for me to consider and prove any witness expenses claims in relation to the inquiries into people acts in sudden deaths Scotland will us as usual practice thank you very much I've formally closed the meeting