Frequently Asked Questions
This section of the website is intended to help people interested in the Inquiry by providing answers to some of the questions they may have. It is not intended as a definitive statement either of the law or of the Inquiry’s position in relation to any of the questions raised. For the legal position in relation to the Inquiry and its procedures you should refer to the Inquiries Act 2005 and the Inquiries (Scotland) Rules 2007. The detailed procedures to be adopted by the Inquiry and the chairman’s rulings and determinations will, as they are developed, be posted at this website.
1. General Background
.1.1 Why was it decided to hold the Inquiry?
The Inquiry was announced in the Scottish Parliament by the Cabinet Secretary for Health and Wellbeing, Nicola Sturgeon, on 23 April 2008. The reasons for the inquiry are set out in her statement.
1.2 When was Lord Penrose appointed?
Lord Penrose was formally appointed with effect from 12 January 2009. A copy of his Instrument of Appointment can be found in the Key Documents section of this website.
1.3 What is Lord Penrose’s background?
Lord Penrose was appointed as a Court of Session Judge in 1990 and retired in 2005. He is a graduate of Glasgow University (MA, LLB) and a Chartered Accountant. He was admitted to the Faculty of Advocates in 1964 and appointed Queen's Counsel in 1978. Before being appointed to the Court of Session, he served as Advocate Depute from 1986 and Home Advocate Depute from 1988 until 1990. He has also served as a Chairman of the Financial Services Tribunal and was President of the Scottish proceedings of the Aircraft and Shipbuilding Industries Arbitration Tribunal from 1977 to 1983. From 1984 until 1990 Lord Penrose was Procurator to the General Assembly of the Church of Scotland. Lord Penrose conducted the public inquiry into the Equitable Life Assurance Society the report of which was published in 2004. He is currently Chairman of the Court of Heriot-Watt University.
1.4 What is meant by an inquiry under the Inquiries Act 2005?
The Inquiries Act 2005 is a UK wide statute which provides a modern and comprehensive framework for inquiries in relation to matters of public concern. The Act sets out the legal powers and duties of both Ministers and the Inquiry chairman. In relation to a Scottish public inquiry, like this one, the Act is supplemented by the Inquiries (Scotland) Rules 2007 which set out many of the detailed rules and procedures.
1.5 The report of the independent Inquiry chaired by Lord Archer of Sandwell has now been published. Will this be taken into account in this Inquiry? Will the Inquiry rely on the report of the Archer Inquiry?
Lord Archer’s independent public inquiry, which was privately financed, was set up in early 2007 and its report was published on 23 February 2009. The remit of that Inquiry was “To investigate the circumstances surrounding the supply to patients of contaminated NHS blood and blood products; its consequences for the haemophilia community and others afflicted; and suggest further steps to address both their problems and needs and those of bereaved families”. Lord Penrose has read Lord Archer’s report with interest, and acknowledges Lord Archer’s achievement in producing his report under challenging circumstances. There are some points of connection with the terms of reference for Lord Penrose’s Inquiry, but it is too early to say how relevant Lord Archer’s report will be to Lord Penrose’s investigations.
2. Organisation and Running of the Inquiry
.2.1 What are the Terms of Reference for the Inquiry?
A copy of Lord Penrose's Terms of Reference can be found here and the Cabinet Secretary's covering letter to him can be found by following this link.
.2.2 Have the terms of reference been changed within the course of the Inquiry?
The terms of reference were changed on 13 November 2009. Three additional deaths were added to those of Reverend David Black and Mrs Eileen O'Hara, which were already included. The names are: Alexander Black Laing, Neil Mullen and Victor Tamburrini.
2.4 Who are the members of the Inquiry team that will assist Lord Penrose and what are their roles?
Senior Counsel to the Inquiry is Laura Dunlop QC who will be supported by two Junior Counsel, Euan Mackenzie, Advocate and Nick Gardiner, Advocate. Their role is strictly impartial and is to assist Lord Penrose in the Inquiry’s investigation of the facts, to present the evidence to the Inquiry and to provide advice on questions of law and evidence.
The Solicitor to the Inquiry is Douglas Tullis, who will be assisted by Louyse McConnell-Trevillion. They will be responsible for controlling the investigations, gathering evidence, taking statements from witnesses and arranging programmes of hearings.
The Secretary to the Inquiry is Maria McCann, who is responsible for all of the organisation and administration of the Inquiry, for managing the staff of the Inquiry and for responding to queries from those with an interest and the Deputy Secretary is Diane Barr.
Lord Penrose has appointed Professor Oliver James as Medical Assessor in terms of section 11 of the Inquiries Act 2005. His role will be as principal adviser to the Inquiry on medical matters. Professor James has recently stepped down as Head of the Medical School and Pro-Vice Chancellor at the University of Newcastle and is a former Senior Vice President of the Royal College of Physicians (London).
2.5 How long will the Inquiry take?
It is not possible to say at this stage how long the Inquiry will take. Lord Penrose will conduct the Inquiry as expeditiously as possible consistent with fairness to all parties. Details of progress will be notified on this website.
2.6 What will the inquiry cost and who is paying for it?
It is too early to give any estimate of the cost of the Inquiry. The cost will depend on the work required including the number of documents to be considered, the number of witnesses, the number of core participants, their representation, the length of the Inquiry and the nature of the evidence. The Inquiries Act 2005 requires the chairman to act with fairness and with regard to the need to avoid any unnecessary cost. The Inquiry will be paid for by the Scottish Government, which is required to publish its total cost after the end of the Inquiry.
2.7 Where will the public hearings of the Inquiry be held?
The first preliminary hearing was held at the EICC, The Exchange, Edinburgh on Tuesday 31 March 2009. No venue has yet been identified for any further preliminary hearings or for the hearings of evidence.
2.8 How will the Inquiry work?
As indicated in Lord Penrose's statement at the first preliminary hearing on 31 March 2009 he intends to conduct the Inquiry in two broad phases.
Phase 1
This phase will involve gathering and assessing the available documentary evidence. The aim will be to establish as much as possible of the factual history, to identify the developing state of medical and scientific knowledge and to identify the controversial facts and issues requiring further investigation. During this phase orders will be made against the main holders of documents for the production of them and statements may be taken from witnesses to expand on documents or to explain particular issues. At the end of this phase it is intended to produce a preliminary report setting out the facts and the medical and scientific opinions that have been identified and identifying the issues remaining to be resolved.
Phase 2
This phase is likely to involve holding public hearings into the issues that have been identified as requiring further investigation. Before Phase 2 there will be an opportunity to those with an interest to comment on the preliminary findings and on the facts and issues as identified.
2.9 How can I be kept informed of the Inquiry’s progress?
Regular reports on progress will be posted on this website.
2.10 What should I do if I think I have information that might help the Inquiry?
Lord Penrose issued a call for evidence on 24 June 2009.
The Inquiry is collecting documents falling within the Terms of Reference. If you hold such documents and wish to provide them to the Inquiry, please contact the Secretary to the Inquiry, Maria McCann, or the Document and Evidence Manager, Neil MacFarlane, to discuss the documents held and the best means of producing them. Any documents that you produce to the Inquiry will be returned to you after the Inquiry has reported.
The Inquiry would like to take statements from patients who contracted Hepatitis C and/or HIV through receiving blood and/or blood products administered by the NHS in Scotland, or from their relatives. If you wish to provide a statement please contact the Secretary to the Inquiry, Maria McCann, or the Deputy Secretary, Diane Barr, to discuss arrangements. You can find out more about this by clicking on the link on the website's home page or via the contact us page.
The Inquiry will, in due course, wish to hear from other witnesses with information relating to the Inquiry’s Terms of Reference. If, in the meantime, you want to note your interest as a potential witness or as someone who may be able to provide evidence, please contact the Secretary to the Inquiry, Maria McCann, or the Deputy Secretary, Diane Barr.
Contact details for the Inquiry are set out in the answer to FAQ 2.18.
2.11 How will statements be taken from patients or their relatives?
If you are a patient who contracted Hepatitis C and/or HIV through receiving blood and/or blood products administered by the NHS in Scotland, or a relative of such a patient, you may wish to give a statement to the Inquiry. The statement will be taken by a member of the Inquiry team. This can be done at the Inquiry team’s offices in Edinburgh, or at another convenient place. You will be sent beforehand a list of issues to be covered in the statement. However this will not be definitive and you can raise other relevant issues. You may be eligible for compensation for loss of time and/or reimbursement of travel and subsistence expenses incurred in providing a statement. Steps will, of course, be taken to ensure that your personal details remain confidential.
2.12 What is a notice under section 21 of the Act?
This is a formal notice in terms of which the Chairman may exercise his statutory powers under the Inquiries Act 2005. Such a notice may require a person to give evidence in person or by way of a written statement or to produce any documents in their custody or under their control that relate to a matter in question at the inquiry. Failure, without reasonable excuse, to comply with such a notice is a criminal offence and may give rise to separate proceedings for enforcement through the courts.
2.13 What is a restriction order?
This is an order made by the Chairman under section 19 of the Inquiries Act 2005 imposing restrictions on attendance at an inquiry, or at any particular part of an inquiry or on disclosure or publication of any evidence or documents provided to an inquiry. The restrictions that may be imposed are limited to those required by law or as the Chairman considers to be conducive to the inquiry fulfilling its terms of reference or necessary in the public interest. Where a person fails to comply with or breaks a restriction order, or threatens to do so, the matter may be referred to the courts by the Chairman for enforcement.
2.14 What is a restriction notice?
A restriction notice is an order very similar in its effect to a restriction order. The difference is that a restriction notice is issued, and can only be revoked or varied, by Scottish Ministers whereas a restriction order is made by the Chairman and may be revoked or varied by him.
2.15 What is potentially restricted evidence?
Where an application has been made either for the Chairman to make a restriction order or for Scottish Ministers to make a restriction order in relation to evidence or a document Rule 11 of the Inquiries (Scotland) rules 2007 requires the document or evidence to be treated while the application is outstanding as if it had been granted and to be treated as restricted.
2.16 What is privileged information?
Section 22 of the Inquiries Act 2005 restricts the powers of the Chairman to require evidence using his powers under section 21. A document or evidence is said to be privileged where its production cannot be compelled by a civil court of law. The Chairman cannot compel the production of such evidence or information. The most obvious example of privileged information is legal advice.
2.17 Will the Inquiry be prepared to receive information provided anonymously?
As the Inquiry is a public one it will not normally be prepared to act on information provided anonymously. However it is likely to be possible for the Inquiry to allow witnesses whose identity is known to the inquiry team to give their evidence anonymously.
2.18 How do I contact the Inquiry?
The Inquiry team can be contacted at its offices at 44 Drumsheugh Gardens, Edinburgh, EH3 7SW, by telephone on 0131 528 5221, or by using this website's Contact us facility. For media enquiries please contact Christina Kelly on 0784 159 8129.
2.19 How do I make a complaint about a member of the Inquiry team?
If you wish to make a complaint about a member of the Inquiry team please contact the Inquiry Deputy Secretary, Diane Barr, in the first instance, on 0131 528 5222. Further details on the Inquiry's complaints procedure can be found here.
3. Legal Position and Powers of the Inquiry
.3.1 What powers does the Inquiry have under the Inquiries Act 2005?
The main powers available to the Inquiry under the Inquiries Act 2005 are the powers to require witnesses to give evidence, both in writing and orally and to require the production of documents. Failure, without reasonable excuse, to comply with a requirement made by the Inquiry is an offence.
3.2 What powers do Scottish Ministers have in relation to the Inquiry?
The powers of Scottish Ministers in relation to the Inquiry are set out in the Inquiries Act 2005. Apart from the general power to establish the Inquiry, the main powers given to Ministers by the Act include the determination of the remuneration of members of the Inquiry team and the imposition of certain conditions on the awards of expenses that can be made by the chairman.
Such a determination was made by Nicola Sturgeon, Cabinet Secretary for Health and Wellbeing, on 27 April 2009, and may be viewed here.
3.3 Is the Inquiry legally independent of Scottish Ministers?
Yes. The Inquiry is entirely independent of Scottish Ministers and will approach its task in an entirely impartial way.
3.4 Can witnesses be compelled to attend and give evidence?
Yes. Section 21 of the Inquiries Act 2005 enables the chairman to require any person to attend to give evidence, or for the purpose of producing relevant documents or other evidence. It also enables the chairman to require the provision of written statements of evidence and of relevant documents or other evidence. In terms of section 35 of the Act failure, without reasonable cause, to comply with such a request is an offence.
These provisions are subject to section 22, which provides that a person may not be required to give, produce or provide any evidence or document to the Inquiry if such a requirement could not be made by a court in civil proceedings.
3.5 How will evidence actually be taken?
It is Lord Penrose’s intention to take as much evidence as possible in written form. Oral hearings will take place to assist the Inquiry in areas where the facts are unclear or in dispute or where oral evidence is considered necessary to help to clarify or expand on matters. Oral hearings may also be necessary to test the accuracy or reliability of disputed evidence. The fact that some evidence is taken in writing does not mean that it is less important than evidence taken orally. The Inquiry will consider all evidence it receives.
3.6 Do the powers of the Inquiry enable it to recover evidence from the UK government?
The powers of a Scottish Inquiry are set out in section 28 of the Inquiries Act 2005. In particular its powers under the Act only apply in relation to “evidence, documents or other things that are wholly or primarily concerned with a Scottish matter” or for the purpose of inquiring into something that is “wholly or primarily a Scottish matter”. A “Scottish matter” means a matter that relates to Scotland and is not a reserved matter within the meaning of the Scotland Act 1998. Section 28 also prevents a Scottish Inquiry from using its powers to “require any evidence, document or other thing to be given, produced or provided by or on behalf of Her Majesty’s Government in the United Kingdom….” There is, however, nothing to prevent a Scottish Inquiry from considering evidence made available to it by the UK government. The UK Department of Health has indicated that subject to its legal obligations it hopes to be able to provide the Inquiry with the documents it requires.
3.7 What witnesses will give evidence to the Inquiry?
Lord Penrose will decide which witnesses will be asked to give evidence and how their evidence can most appropriately be taken. It is likely that all prospective witnesses will be asked to provide an initial written statement of their evidence to enable the chairman to make those decisions. The solicitors to the Inquiry will be available to assist witnesses in the preparation of statements.
3.8 Will there be financial assistance for witnesses to appoint legal representation?
Section 40 of the Inquiries Act 2005 enables the chairman to award reasonable amounts in respect of legal representation in relation to the Inquiry. Rules 17 to 20 of the Inquiries (Scotland) Rules 2007 make more detailed provision in relation to awards. The Cabinet Secretary for Health and Wellbeing, Nicola Sturgeon, made on 20 April 2009 a determination under section 40(4) of the Act setting certain conditions on any such awards. A copy of that determination can be found in the Key Documents section of this website. Lord Penrose has issued an Inquiry Procedure Direction No 3 - Applications for legal representation at public expense which relates to Phase 1 of the Inquiry. A copy of that procedure direction can be found in the Procedures section of this website.
3.9 Will any Ministers or former Ministers give evidence to the Inquiry?
No decisions have yet been taken as to which witnesses will or will not be giving evidence. If Lord Penrose considers the evidence of any witness to be necessary to enable the Inquiry to carry out its task, he will request the evidence of that witness either in writing or orally.
3.10 If I make a statement or give evidence to the Inquiry could I face being sued for defamation?
Section 37(3) of the Inquiries Act 2005 provides that any statement made in, or for the purposes of, proceedings of the Inquiry is treated as if it had been made in a court of law. So long as the evidence is relevant to the subject matter of the Inquiry, witnesses enjoy what is called “absolute privilege” and their evidence cannot normally give rise to a claim for defamation.
3.11 Will transcripts of evidence from the hearings and documents referred to be publicly available?
Yes – it is intended that all transcripts of evidence and documents referred to will be published at this website. Documents published will be subject to redaction as necessary to ensure anonymity where it has been agreed and to ensure compliance with the Data Protection Act.
3.12 Will the Inquiry only be looking at the position of haemophiliacs who have become infected with Hepatitis C and HIV through blood and blood products?
No. The Inquiry’s terms of reference enable it to consider the circumstances generally in which any patients treated by the NHS in Scotland became infected with hepatitis C, HIV, or both through blood and blood products.
3.13 Why is the Inquiry specifically investigating the deaths of Reverend David Black, Mrs Eileen O’ Hara, Alexander Black Laing, Neil Mullen and Victor Tamburrini?
The representatives of David Black and Eileen O’Hara have successfully brought petitions in the Court of Session against the Lord Advocate and the Scottish Ministers for the judicial review of the initial decision not to hold an inquiry into the circumstances of the deaths. In his opinion of 5 February 2008, and in terms of his supplementary opinion of 7 January 2009, Lord Mackay of Drumadoon held that compliance with Article 2 of the European Convention on Human Rights required the holding of an independent, effective and reasonably prompt inquiry into the two deaths. On 7 January 2009 he made an order declaring that the petitioners are entitled to an independent, effective and reasonably prompt inquiry into the deaths. On 13 November 2009 the Scottish Ministers made the decision also to require the Inquiry to investigate the deaths of Alexander Black Laing, Neil Mullen and Victor Tamburrini. The terms of reference have been amended to reflect that decision.