The Inquiries Act 2005 and the Inquiries (Scotland) Rules 2007
1. The procedure of the Inquiry was subject to the Inquiries Act 2005 and the Inquiries (Scotland) Rules 2007.
Core Participants
2. I designated as core participants during the course of the Inquiry those individuals and organisations who applied to be core participants that I considered had played a direct and significant role in relation to the matters to which the Inquiry related, or might be subject to significant or explicit criticism during the proceedings at the Inquiry, or had a significant interest in an important aspect of those matters or in the Inquiry's outcome. Those so designated and their recognised legal representatives are listed in appendix 3.
Commencement of hearings
3. The Salmon Commission1 recommended that more time should be allowed than in the past for the preparation of an inquiry before public hearings begin. This was found to be sound advice as the extensive preparatory work that was carried out considerably reduced the length of the public hearings.
Witnesses' statements
4. The Inquiry engaged a number of lawyers to record statements from relevant witnesses. They were given specific training so that they understood what was required of them. Counsel to the Inquiry gave directions as to the particular issues that the witness was to be asked to address. The witness's own legal adviser was present if the witness so wished. The witness was given a draft of the statement that had been recorded and invited to sign the statement once satisfied that it was an accurate account of his or her evidence.
5. When it had been signed the statement was treated as the evidence-in-chief of the witness. Those who gave oral evidence were asked to confirm that their statement was accurate and not asked to repeat all that was in it. The statement became the evidence of those that it was not found necessary to ask to give oral evidence.
6. The witnesses to the Inquiry are listed in appendix 4 with, in the case of witnesses who were not core participants, the name of any recognised legal representative.
Documentary evidence
7. Despite the passage of time a large number of documents were recovered from public and private sources. Unfortunately one Crown Office file could not be found prior to the Inquiry hearings, the "buff folder" for the prosecution in HMA v McKie. The loss was to some extent ameliorated by there being available to the Inquiry the Precognition, papers for HMA v McKie found in the High Court file for HMA v Asbury, and the file of the Glasgow procurator fiscal, the recipient of much of the correspondence with Crown Office. Although part of the missing Crown Office file came to light and was made available to the Inquiry in February 2011, this did not cover the full period concerned; there remained a gap between 19 October 1998 and 19 January 1999.2
8. Pre-existing documents and also documents created for the Inquiry, such as reports and a literature review, were scanned and stored in the Inquiry's electronic database.
Availability of evidence to core participants
9. To assist with their participation in the Inquiry, core participants and their legal representatives were given access to relevant evidence electronically prior to the hearings, provided that they first gave an undertaking that they would not disclose the material. This was because the material on the database included material that had been provided subject to an obligation of confidentiality owed to the provider. The undertaking ensured that the maker of a statement or their recognised legal adviser had an opportunity to raise any legitimate objection to the statement being made public and that the rights of anyone mentioned in a document or statement were protected. It also avoided the evidence of a witness in a statement being published prior to them giving oral evidence. The undertaking ceased to apply to material put in the public domain by the Inquiry during the hearings and/or through the Inquiry's website. One recognised legal representative, Mr David Russell of Towells, and his clients were unwilling to enter into the confidentiality arrangements and so did not have such access.
10. The material was 'redacted' so that for example information not relevant to the Inquiry was not disclosed and to protect personal information in line with the law on data protection etc.
Analysis of the evidence
11. Once the documentary evidence and the witness statements were received by the Inquiry, Counsel to the Inquiry prepared an analysis of the evidence and of the issues that required to be investigated. This demanding undertaking was carried out with such attention to detail and care that it provided not only a guide for all those engaged in the Inquiry but an initial outline for my review of the evidence and preparation of this Report. The analysis by Counsel was published on the Inquiry website at the beginning of the first oral hearings.
Procedure at the public hearings
12. A note about the procedures at the Inquiry hearings was made available on the Inquiry website. The hearings were held over a period of six weeks from 2 June to 10 July 2009 and over a further ten weeks from 22 September to 27 November 2009.
13. Counsel to the Inquiry made an opening statement followed by the recognised legal representatives of the core participants. Witnesses who gave oral evidence were required to take the oath or affirm that they would tell the truth. They were cross-examined by Counsel to the Inquiry and then with leave of the Inquiry by the representatives of core participants.
14. At the conclusion of the hearings, core participants' legal representatives gave short closing statements in person and/or in writing to identify the issues as they saw them.
15. During the hearings, daily progress updates were published on the Inquiry's website.
Publication of evidence
16. The Inquiry statements of witnesses appearing in person were normally published on the Inquiry website at the beginning of the week during which their oral evidence was taken. Other evidence relevant to the testimony of each witness was also uploaded, if not already published. Statements from witnesses who were not giving oral evidence were generally published together at the end of each of the two series of hearings.
17. Transcripts of a day's hearings were generally published that evening.
18. The material published on the Inquiry website was redacted as indicated above.
Recommendations
19. As I stated at the conclusion of the public hearings, those likely to be affected directly by the Inquiry's recommendations were given an opportunity to comment on them in draft.
Keeper of the Records of Scotland
20. At an early stage in the Inquiry the Keeper was consulted on the manner and format of creating, maintaining and transferring the record of the Inquiry to the National Records of Scotland.
1 The Report of the Royal Commission on Tribunals of Inquiry, Cmnd 3121, November 1966.
2 See chapter 10 para 5ff