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 Will the report of the Archer Inquiry be taken into account in this 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”. While reports such as Lord Archer's (and other inquiries' reports) may provide useful pointers to the kinds of issues that may arise at this Inquiry and, in some respect, point to sources of information and evidence, the findings do not bind Lord Penrose or make it unnecessary for him to be satisfied about the issues of fact and opinion that he has to resolve. Lord Penrose has to reach conclusions on the evidence available to him and assess the facts for himself.
2. Organisation and Running of the Inquiry.
2.1 What are the Terms of Reference for the Inquiry?.
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.
A further change was made on 22 February 2011 when Neil Mullen’s name was removed from the list of deaths to be investigated by the Inquiry, as a result of new evidence which had come to light.
2.3 Will there be a panel or will Lord Penrose sit alone?
Lord Penrose will sit alone.
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 is supported by three Junior Counsel, Euan Mackenzie, Advocate, Nick Gardiner, Advocate and Jane Patrick, 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 is assisted by the Deputy Solicitor Louyse McConnell-Trevillion. They are responsible for controlling the investigations, gathering evidence and providing advice in relation to procedural matters.
The Secretary to the Inquiry is Maria McCann, who is responsible for all of the organisation and administration of the Inquiry, for managing the administrative staff of the Inquiry and for responding to queries from those with an interest and the Deputy Secretary is Sarah Noble.
Lord Penrose has appointed Professor Oliver James as Medical Assessor in terms of section 11 of the Inquiries Act 2005. His role is principal adviser to the Inquiry on medical matters. Professor James stepped down as Head of the Medical School and Pro-Vice Chancellor at the University of Newcastle in 2009 and is a former Senior Vice President of the Royal College of Physicians (London).
2.5 When will the Inquiry report be published?
Work on the Final Report is now in its concluding stages and, subject to the length of time required for the warning letters process, it is anticipated that it will be published in March 2014
2.6 Who is paying for the Inquiry?
The Inquiry is being paid for by the Scottish Government, which is required to publish its total cost after the end of the Inquiry.
2.7 How has the Inquiry worked?
As indicated in Lord Penrose's statement at the first preliminary hearing on 31 March 2009, the Inquiry has been conducted in two broad phases.
This phase involved gathering and assessing the available documentary evidence. The aim was 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 were made against the main holders of documents for the production of them and statements were taken from witnesses to expand on documents or to explain particular issues. Phase 1 is now complete and culminated in the publication of the Preliminary Report on 8 September 2010.
It is important to emphasize that Lord Penrose did not reach any conclusions on matters of fact or on recommendations that might be made. Work carried out in preparation of the Preliminary Report helped to identify a list of topics suitable for further examination during the public hearings.
Lord Penrose invited responses to the list of topics and as a result amended the list of topics. A further topic, C3a, was added on 4 August 2011. The amendments are highlighted in the list of topics found here:
List of Topics for Public Hearings [DOC - 30Kb]
This phase involved public hearings of evidence and submissions in relation to the list of topics that have been identified as requiring further investigation. These hearings took place over a total of 89 days between March 2011 and March 2012.
An additional procedural hearing on the topic of Statistics took place on 29 October 2012. Lord Penrose heard oral submissions from Thompsons Solicitors, representing patients, relatives and the Haemophilia Society, that certain witnesses be called to give further evidence on the Statistics topic. The hearing was open to the public. A transcript of the hearing, Lord Penrose's written decision and other relevant documents are available here.
Lord Penrose is currently drafting his Final Report. The additional work on Statistics has led to an extended timescale for its completion. Subject to the length of time required for the warning letters process, it is anticipated that it will be published in March 2014.
2.8 How can I be kept informed of the Inquiry’s progress?
Transcripts from each day's oral hearing are published on this website. Any other significant developments are reported under the "Latest News" section on the home page of this website.
2.9 What should I do if I think I have information that might help the Inquiry?
The Inquiry's evidence gathering exercise is now essentially complete and it will only be in exceptional circumstances that further evidence can be received at this stage. If you are in any doubt about whether any information should be provided, please contact the Secretary to the Inquiry, Maria McCann, or the Document and Evidence Manager, Neil MacFarlane whose contact details are set out in the answer to FAQ 2.16.
2.10 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.
2.11 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.
2.12 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.
2.13 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 notice 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.
2.14 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.
2.15 Will the Inquiry be prepared to receive information provided anonymously?
As the Inquiry is a public one it has not normally been prepared to act on information provided anonymously. However, it has been possible for the Inquiry to allow certain witnesses whose identity is known to the Inquiry team to give their evidence anonymously. Lord Penrose has permitted those witnesses giving evidence in relation to their own infection or that of a family member with Hepatitis C and/or HIV to do so using pseudonyms.
2.16 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 0131 220 8780 or 07875 581955.
2.17 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, Sarah Noble, in the first instance, on 0131 528 5222. Further details on the Inquiry's complaints procedure can be found here.
3. Oral Hearings.
3.1 Where were the public hearings of the Inquiry held?
The venue for the public hearings was at Clydesdale Bank Plaza (Ground Floor), 50 Lothian Road, Edinburgh EH3 9BY but, following completion of the hearings, the venue has been closed.
The venue for the additional procedural hearing on 29 October 2012 was the Apex International Hotel, Grassmarket, Edinburgh, EH1 2HS.
3.2 What was the timetable for the hearings?
The hearings commenced on 8 March 2011 and finished on 30 March 2012. Hearings took place over a total of 89 days during this period.
Evidence on the issues under investigation was taken in discrete blocks of sitting days. Information as to which issues were covered by which block of hearings can be found on this website under the Public Hearings section.
Information as to the witnesses called to give evidence during each block of hearings can also be found on this website under the Public Hearings section.
3.3 Are transcripts of evidence from the hearings and documents referred to publicly available?
Yes – all transcripts of evidence have been published at this website. Documents referred to in evidence are hyper-linked. Transcripts from the private hearings have been redacted to preserve the anonymity of the witnesses involved. Documents referred to have been redacted to ensure the anonymity of patients and their families and to ensure compliance with the Data Protection Act.
The transcripts, and any relevant documents, for the additional hearing will be available on the website by Friday 9 November 2012.
3.4 Did the hearings take place in public?
The hearings usually took place in public. Lord Penrose decided that the evidence of some witnesses in relation to their own infection with Hepatitis C and/or HIV or the infection of a family member should be taken in private session.
4. Legal Position and Powers of the Inquiry.
4.1 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.
4.2 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.
4.3 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.
4.4 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.
4.5 How was evidence actually taken?
Lord Penrose’s approach has been to take evidence in the way that is most helpful to the Inquiry and most suitable for the evidence in question. A very large number of documents were received in evidence and these were supplemented by a large number of written statements from witnesses, many of whom gave oral evidence in person. Lord Penrose permitted witnesses giving evidence in relation to their own infection or that of a family member with Hepatitis C and/or HIV to do so using pseudonyms. Transcripts of the evidence heard by the Inquiry and links to documents referred to can be found in the Public Hearings section of this website
4.6 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.
4.7 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.
4.8 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.
4.9 Why is the Inquiry specifically investigating the deaths of Reverend David Black, Mrs Eileen O’ Hara, Alexander Black Laing 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 were amended to reflect that decision. On 22 February 2011, Mr Mullen's name was removed from the list of deaths to be investigated by the Inquiry, as a result of new evidence which had come to light.
5. Core Participants.
5.1 What is a core participant?
‘Core participant’ is not defined in the Inquiries (Scotland) Act 2005 or the Inquiries (Scotland) Rules 2007 but usually refers to a participant expected to have a key role during the Inquiry, attending for all or substantial parts of the proceedings, either personally or by their recognised legal representatives, and participating actively in the proceedings by making statements or asking questions, subject to the control of the chairman.
5.2 What is the difference between a core participant and a witness?
The difference is best understood by reference to their roles. A witness is someone who has information relevant to the Inquiry which the Inquiry proposes to take, either orally or in the form of written evidence. A witness may have the opportunity to ask questions in certain limited circumstances, but will not generally take the active part in the Inquiry that is expected of a core participant.
5.3 Must core participants and witnesses have legal representation?
It is not obligatory for core participants or witnesses to be legally represented. However, it is usual for core participants to be legally represented. It can be of considerable advantage to the person involved to have legal representation, having regard to the role core participants are expected to play in the proceedings, and the Inquiry may benefit from the efficient and effective participation of skilled lawyers. All core participants before this Inquiry have been represented by solicitors and counsel.
5.4 Are core participants and witnesses entitled to have legal representation?
Yes. However, Rule 6 of the Inquiries (Scotland) Rules 2007 enables the chairman to direct that core participants with similar interests share legal representation. Subject to that qualification, if a core participant or any person required or permitted to give evidence or to produce documents appoints a qualified lawyer the chairman must regard that lawyer as the person’s “recognised legal representative”. In some circumstances the chairman may make awards in respect of the cost of legal representation.
5.5 If I am designated as a core participant, does that mean that I automatically receive funding to be legally represented?
No. If you are designated as a core participant, and you wish to apply for funding, you will be sent an application form to enable you to apply for funding for legal representation.
5.6 How, and for what, can I get funding?
Awards of funding are intended, broadly, to enable those who would not otherwise be able to instruct legal representatives to do so. Section 40 of the Inquiries Act 2005 enables the chairman to award reasonable amounts in respect of legal representation in relation to the Inquiry. Such awards can be made to those attending the Inquiry to give evidence or produce documents and to persons, including core participants, whether individuals or representative bodies, considered by Lord Penrose to have a sufficient interest to justify an award. Rules 17 to 20 of the Inquiries (Scotland) Rules 2007 make more detailed provision in relation to awards. In addition, a Ministerial determination has been made 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.
The chairman has issued a number of Inquiry Procedure Directions:
No 2.2 - Award of Travel and Subsistence Expenses
No 3.1 - Applications for legal representation at public expense
No 4.1 - Award of Compensation for Loss of Time
A copy of these Procedure Directions can be found in the Procedures section of this website.
5.7 What is the role of a recognised legal representative?
The Inquiry is not a trial. It is a process designed to assist the chairman to elicit the information required to enable him to report on the terms of reference. The procedure is inquisitorial rather than the adversarial procedure normal in the courts. In particular it has been for the chairman, not participants’ legal representatives, to decide what questions are permitted. Most of the questioning of witnesses at oral hearings has been done by counsel to the Inquiry. However Rule 9 of the Inquiries (Scotland) Rules 2007 enables the chairman to permit recognised legal representatives to question witnesses in some circumstances. Rule 10 enables recognised legal representatives to make opening and closing statements on behalf of those they represent, subject to the chairman’s discretion. The legal representatives of core participants and others have had an important role in assisting in the obtaining of written statements and by suggesting lines of questioning to be taken by counsel to the Inquiry.
5.8 Who can apply to be a core participant?
This is prescribed in Rule 4 of the Inquiries (Scotland) Rules 2007 which enables the chairman to designate as core participants individuals or organisations:
- (a) who played, or may have played, a direct and significant role in relation to the matters to which the Inquiry relates;
- (b) who have a significant interest in an important aspect of the matters to which the Inquiry relates; or
- (c) who may be subject to significant or explicit criticism during the proceedings of the Inquiry or in its report.
However, no one may be designated a core participant without their consent.
5.9 Can a representative body be designated as a core participant?
Yes, as mentioned in the last answer, an organisation may be designated. There may be considerable advantages in designating a representative body that can reflect a wider range of interests than an individual member of that organisation could. In this Inquiry the Haemophilia Society known as Haemophilia Scotland has been designated as a core participant.
5.10 How do I apply to become a core participant?
There is an application form available in the Procedures section of the Inquiry website. Alternatively, you may contact the Secretary to the Inquiry to request a paper copy.
5.11 Who are the core participants at the current time?
Please see the list of core participants and Lord Penrose’s note on the designation of core participants.
5.12 What are core participants entitled to do within the Inquiry?
Lord Penrose directed that no opening statements be made but the recognised legal representative of a legally represented core participant made closing submissions, both orally and in writing, which are available at the Public Hearings section of this website. Core participants do not have the right to give oral evidence at the public hearings but may be permitted to do so at the chairman’s discretion. In common with other witnesses, a written statement would be required before oral testimony could be given by a core participant. The chairman may permit a core participant, or their recognised legal representative, to examine any witness giving oral evidence. But there is no right to ‘cross-examine’ witnesses. Rule 9(5) of the Inquiries (Scotland) Rules 2007 sets out conditions about the scope of questions which have to be met before the chairman may give permission for the questions to be asked.
Further guidance on the hearings can be found at:
Guidance on the Oral Hearings [DOC - 369Kb]
5.13 If I am a designated as a core participant, is this for the whole remaining period of the Inquiry?
Not necessarily. Core participant status may be conferred at any time and withdrawn at any time and may be conferred for specified time periods.
6. Publication of Final Report.
6.1 When will the Final Report be published?
Work on the Final Report is now in its concluding stages. Further work on Statistics has led to an extended timescale for its completion. Subject to the length of time required for the warning letters process, it is anticipated that it will be published in March 2014. When the publication date is known, it will be announced on this website..
6.2 What are warning letters?
Rule 12 of the Inquiries (Scotland) Rules 2007 provides for the sending of warning letters to those who may be the subject of significant or explicit criticism in the Report. The sending of a warning letter affords the recipient the opportunity of responding to a proposed criticism by way of a written statement to be taken into account by the Chairman in deciding whether to include the criticism in the Report. Details of the procedure and arrangements to be followed by the Inquiry in relation to warning letters are set out in the relevant Guidance Note to be found in the Key Documents and Guidance section of the Inquiry website..
6.3 Who will receive warning letters?
Those who may be the subject of significant or explicit criticism in the Final Report will receive warning letters before the report is published. The identities of the recipients of warning letters are confidential.