BOYD AND McCOLM v. THE UNITED KINGDOM
Inadmissible
Matti Pellonpää;Nicolas Bratza
A. On 9 July 1989 the applicants’ father, James McColm, was knocked down by a taxi. He died in hospital on 11 July 1989, without having regained consciousness. On 2 August 1989 the applicants met with the Procurator Fiscal who was investigating their father’s death. On 11 September 1989 the Procurator Fiscal wrote to the applicants informing them that he was entering a verdict of “no proceedings”. On 17 November 1989 the applicants obtained from the police the “Abstract of Road Occurrence Report”, containing the names and addresses of two witnesses to the accident, namely the taxi-driver and a fourteen-year-old boy, and three police officers who attended the scene after the accident. The applicants’ solicitor took statements from the first two witnesses, but the applicants were unable to understand how the accident had taken place. On 13 December 1989 the Lord Advocate wrote to the first applicant’s Member of Parliament as follows: “I have carefully considered the report and statements which were submitted by the Procurator Fiscal in relation to the death of James McColm and I do not consider it appropriate to instruct a Fatal Accident Inquiry in this particular case. The matter has been fully investigated by the police and the Procurator Fiscal and all eye witnesses have been precognosced by the Procurator Fiscal. I understand that the Procurator Fiscal spent some considerable time with your constituent’s brother, Mr John McColm, and his wife, outlining to them the evidence of the various witnesses. The Procurator Fiscal also provided Mr John McColm with a list of the names and addresses of those witnesses to enable him to interview them personally if he wished to do so. Mr McColm was also permitted to read the autopsy report. As you will appreciate the police report to the Procurator Fiscal and the Procurator Fiscal’s report to the Crown Office are confidential and, accordingly, your constituent cannot be provided with copies of these documents. ...” On 19 January 1990 the applicants again met with the Procurator Fiscal, who refused the applicants’ request for a Fatal Accident Inquiry, and also refused to grant the applicants access to all the documentation relating to their father’s death. On 21 February 1990 the applicants obtained the post-mortem report relating to their father’s death. On 2 March 1990 the Lord Advocate again wrote to the first applicant’s Member of Parliament: “I understand that you telephoned ... enquiring as to the reasons for confidentiality attaching to the reports which your constituent, Mr Edward McColm, has requested copies of. There is a long and unbroken line of judicial authority that reports by the police to the Procurator Fiscal and communications between the Procurator Fiscal and the Crown Office are very highly confidential and the Scottish Courts would only order their production to a third party where it is necessary for the ends of justice in view of some great and overwhelming necessity. In the circumstances of this case I cannot see that there is any great necessity. Indeed ... nothing material has been withheld.” On 28 June 1990 the applicants were informed by their solicitor that “in view of all the facts, lack of witnesses and the policy of the authorities”, it would not be possible for them to proceed with a civil action or force a Fatal Accident Inquiry. On 16 June 1992 an adjournment debate about the issues surrounding the applicants’ father’s death was held in the House of Commons. On behalf of the Government, the Parliamentary Under-Secretary of State for Scotland explained that: “In the case of road traffic fatalities, a fatal accident inquiry would normally be held only if it was thought that there was a need to inquire into such matters as the layout of the road, the appropriateness of any speed limits at the locus, or the adequacy of street lighting. In other words, do the circumstances of the accident give rise to concerns about road safety? Where it is considered that the driver of a vehicle was at fault to the extent that his driving was thought to have been careless or reckless, the appropriate step is for criminal proceedings to be instituted. Where criminal proceedings are not appropriate and no issues of road safety are raised, a fatal accident inquiry will not usually be held, especially where the investigations by the police and fiscal have already clearly established the circumstances leading up to the accident.” He continued: “No material information was withheld from the family. They remained dissatisfied, however, because they had not been shown the police report or the fiscal’s report. The police report was simply a summary of the evidence, the details of which had already been provided to the family. The fiscal’s report was accompanied by the statements of the witnesses but was itself an assessment of that evidence and a recommendation by the fiscal to Crown counsel as to whether a fatal accident inquiry should be held. The fiscal is clearly entitled to make an assessment of the evidence and offer his opinion to Crown counsel on a confidential basis. ...” On 4 November 1996 the second applicant wrote to the Procurator Fiscal requesting the official police sketch of the scene of the accident and photographs taken by the police. The Procurator Fiscal replied on 20 November 1996, enclosing a copy of the sketch plan and advising the applicant to contact the police directly in respect of the photographs. On 13 January 1997 Strathclyde Police informed the applicant that the photographs had been disposed of. On 3 July 1997 the first applicant wrote to the newly-appointed Lord Advocate again requesting an inquiry into his father’s death. The Lord Advocate replied on 27 August 1997 stating that he had read the papers in the case and agreed with the decision not to carry out a Fatal Accident Inquiry. B. Relevant domestic law and practice The Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 (“the 1976 Act”) places an obligation on the Lord Advocate to hold an inquiry into any death in custody or following an accident at work, unless the circumstances of the death have been established in the course of criminal proceedings. As regards other deaths, it is at the discretion of the Lord Advocate to decide whether it is expedient in the public interest to hold an inquiry into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or occurred in circumstances such as to give rise to serious public concern. In practice, the Procurator Fiscal investigates all sudden, suspicious, accidental and unexplained deaths, and informs the Crown Office where there are suspicious circumstances, where it appears that a crime has been committed and there is a possibility that proceedings might be instituted, where the circumstances point to suicide, or where there has been a request by an interested person that a Fatal Accident Inquiry be held. Crown Counsel then decides on behalf of the Lord Advocate whether the circumstances of the death give rise to serious public concern such as to justify the holding of an inquiry.