In view of the publicity which this inquiry has received in the press and on radio and television, and in view also of misunderstandings that appear to exist in certain quarters as to the purpose of a fatal accident inquiry and the respective roles of the various parties and of the sheriff, it may be of assistance to set out the salient provisions of the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976 which is the statute that governs these matters.

  Section 1 of the Act provides inter alia:

  "1(1)....where—

(a)  in the case of a death to which this paragraph applies—

(i)  it appears that the death has resulted from an accident occurring in Scotland while the person who has died, being an employee, was in the course of his employment or, being an employer or self-employed person, was engaged in his occupation as such; or

(ii)  the person who has died was, at the time of his death, in legal custody; or

(b)  it appears to the Lord Advocate to be expedient in the public interest in the case of a death to which this paragraph applies that an inquiry under this Act should be held into the circumstances of the death on the ground that it was sudden, suspicious or unexplained, or has occurred in circumstances such as to give rise to serious public concern,

  the procurator fiscal for the district with which the circumstances of the death appear most closely connected shall investigate those circumstances and apply to the sheriff for the holding of an inquiry under this Act into those circumstances.

  (2)  Paragraph (a) of subsection (1) above applies to a death occurring in Scotland after the commencement of this Act and paragraph (b) of that subsection applies to a death occurring there at any time after the date three years before such commencement.

  (3)  An application under subsection (1) above—

(a)  shall be made to the sheriff with whose sheriffdom the circumstances of the death appear to be most closely connected;

(b)  shall narrate briefly the circumstances of the death so far as known to the procurator fiscal;

(c)  may, if it appears that more deaths than one have occurred as a result of the same accident or in the same or similar circumstances, relate to both or all such deaths."

  Section 3(1) of the Act provides inter alia:

  "3(1)  On an application under section 1 of this Act being made to him, the sheriff shall make an order—

(a)  fixing a time and place for the holding by him of an inquiry under this Act (hereinafter in this Act referred to as "the inquiry"), which shall be as soon thereafter as is reasonably practicable in such courthouse or other premises as appear to him to be appropriate, having regard to the apparent circumstances of the death."

  Section 3(2) of the Act then makes provision for intimation of the inquiry by the procurator fiscal to various parties including relatives of the deceased and also for public notice to be given of the holding of the inquiry.

  Section 4 of the Act provides inter alia:

  "4(1)  At the inquiry, it shall be the duty of the procurator fiscal to adduce evidence with regard to the circumstances of the death which is the subject of the inquiry.

  (2)  The wife or husband, or the nearest known relative, and, in a case where the inquiry is being held in respect of such a death as is referred to in section 1(1)(a)(i) of this Act, the employer, if any, of the person whose death is the subject of the inquiry, an inspector appointed under section 19 of the Health and Safety at Work etc. Act 1974 and any other person who the sheriff is satisfied has an interest in the inquiry may appear and adduce evidence at the inquiry.

  (3)  Subject to subsection (4) below, the inquiry shall be open to the public.

  (6)  The sheriff may, either at his own instance or at the request of the procurator fiscal or of any party who may be entitled by virtue of this Act to appear at the inquiry, summon any person having special knowledge and being willing to do so, to act as an assessor at the inquiry.

  (7)  Subject to the provisions of this Act and any rules made under section 7 of this Act, the rules of evidence, the procedure and the powers of the sheriff to deal with contempt of court and to enforce the attendance of witnesses at the inquiry shall be as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone."

  Section 6 of the Act provides inter alia:

  "6(1)  At the conclusion of the evidence and any submissions thereon, or as soon as possible thereafter, the sheriff shall make a determination setting out the following circumstances of the death so far as they have been established to his satisfaction—

(a)  where and when the death and any accident resulting in the death took place;

(b)  the cause or causes of such death and any accident resulting in the death;

(c)  the reasonable precautions, if any, whereby the death and any accident resulting in the death might have been avoided;

(d)  the defects, if any, in any system of working which contributed to the death or any accident resulting in the death; and

(e)  any other facts which are relevant to the circumstances of the death.

  (3)  The determination of the sheriff shall not be admissible in evidence or be founded on in any judicial proceedings, of whatever nature, arising out of the death or out of any accident from which the death resulted.

  (5)  Upon payment of such fee as may be prescribed in rules made under paragraph (i) of section 7(1) of this Act, any person—

(a)  may obtain a copy of the determination of the sheriff;

(b)  who has an interest in the inquiry may, within such period as may be prescribed in rules made under paragraph (j) of the said section 7(1), obtain a copy of the transcript of the evidence,

from the sheriff clerk."

  In the present case the accident occurred within the Sheriff Court District of Campbeltown. But for reasons of convenience to witnesses and parties generally, it was decided that the inquiry should be held at Paisley Sheriff Court which is within the same Sheriffdom (of North Strathclyde) as the Sheriff Court at Campbeltown.

  It will be appreciated from the foregoing that the responsibility for investigating the circumstances of the death(s) in any particular case rests with the procurator fiscal acting in the public interest. The sheriff plays no part in these investigations and in the ordinary course of events has no foreknowledge of what is going to be disclosed by the evidence during an inquiry beyond the brief narrative of the circumstances which is contained in the application made under section 1(3)(b)—and in my experience procurators fiscal are invariably content to abide by the letter of the law in this respect. Occasionally the sheriff may have an opportunity to examine the productions in advance of an inquiry. But that is an opportunity which he has to exercise with restraint lest his mind be made up before he has heard the evidence in the case, and in any event it often happens that the productions may mean very little without further explanation from witnesses.

  That was certainly true in this case where I had the opportunity before the inquiry began of seeing the RAF Board of Inquiry's report on the accident but was able at that stage to understand very little of the material in it. During the inquiry itself the sheriff's role again is essentially a passive one, listening to the evidence as it is unfolded, and at the end of the day his determination under section 6 of the Act must be based upon the material which has been presented to the court during the inquiry.

  Section 4(6) of the Act provides that the rules of evidence at a fatal accident inquiry shall be as nearly as possible those applicable in an ordinary civil cause brought before the sheriff sitting alone. That means in short that the standard of proof that the sheriff has to apply in considering whether any of the circumstances enumerated in section 6(1) has been established to his satisfaction is proof on a balance of probabilities and not some other higher standard of proof such as proof beyond reasonable doubt.

  From time to time in a fatal accident inquiry following an accident in which several people have died, evidence may emerge which tends to show that the cause of the accident was an act or omission on the part of one of the deceased. That may mean that the sheriff is put in the invidious position of having to find that that particular deceased (who by definition has had no opportunity to defend himself against any allegation made against him) was in effect responsible for the deaths, not only of himself, but also of the other deceased. This of course was the situation which could have arisen in the present case in as much as the submission made on behalf of the Ministry of Defence was that the cause of the accident was the selection by the crew of ZD576 of an inappropriate rate of climb to overfly the land mass of the Mull of Kintyre.

  The approach to be taken by the court when confronted with an issue of this kind was stated very clearly by counsel for the remaining families in the course of his submissions. These have been recorded, and since it would be wrong for me to lift what was said by counsel and present it as my own I have decided to take the admittedly unusual course of setting out counsel's submissions verbatim (subject to a few minor deletions and also alterations to protect the identity of a particular witness). Counsel began this part of his submissions after I had interrupted him to question his contention that Flt Lt Tapper knew that witness G took the view that an extension of the crew's flying hours on 2 June 1994 beyond eight was neither appropriate nor justified. The following exchange between counsel and myself then took place:

  "Sheriff:  Well, you say that he knew that. It comes back to this fundamental difficulty in this case, that that is what (G) said but the Tapper family representatives are not in a position to challenge that because they don't know, because they can't take instructions from Flt Lt Tapper. Am I just to take as gospel truth then that that was the position? Do you see the difficulty?

  Counsel:  Well, is there any reason to disbelieve what (G) said?

  Sheriff:  Well, not on the evidence that has been presented but, I mean, that is the whole point, that lurking behind all of this we have not heard the other side of the story, if there is another side and there may not be.

  Counsel:  Well, my lord, I was going to deal with that section later but it might be helpful just to preface my remarks because it is plainly a matter which is troubling the court and it arises not only in this context but also in a number of other contexts, most obviously the probable cause of the accident and the way it was put yesterday was, are there too many missing pieces of the jigsaw to enable a view to be taken? My lord, by definition, a fatal accident inquiry will often lack the evidence of the person or persons most closely involved but that reason alone can never be sufficient in itself to preclude a determination on the issues in terms of section 6 of the Act. There will often be cases where after the evidence has been concluded one can identify other sources of evidence which, for whatever reason, for one reason or another, the death of a witness, for example, cannot be adduced but in my submission the potential for a different picture emerging if the evidence was either fuller or different is not a bar to adjudication upon the evidence as it in fact is before the court. So the only question which arises is this; having regard to the evidence properly before the court, is the court satisfied that a determination can be made as to the cause of the accident on a balance of probability? Now, if the answer is yes, the evidence does allow, looked at within the four corners of the evidence, such a determination on the balance of probabilities and if the evidence then does point to a probable cause, the lack of direct evidence from the pilot or the absence of what would have no doubt been helpful data from the black box should not preclude the court from issuing an appropriate determination upon the evidence. That is what the public interest requires, in my respectful submission. That is what the legislation envisages and that is what all those with an interest in this matter, in my submission, are entitled to expect of the court. Now, that is not to say that all of us here do not sympathise with the position the court finds itself in. It may be an invidious position to be in and one may well consider issuing a judgement to the effect, if this is the court's view, that the evidence points strongly to pilot error and make a determination to that effect but it is of course open to the court in its determination to recognise expressly that that finding is made in the absence of evidence from the pilots but, in my submission, the matter can be taken no further than that. One can't make any assumptions as to what might or might not have emerged if there was some evidence from the pilot. We just do not know. That evidence, if available, may have confirmed the Board of Inquiry report or it may not.

  Sheriff:  It may do. I don't know. Does it not perhaps at least mean this; that the court must be particularly careful not to hold that a particular cause has been established on a balance of probabilities bearing in mind the absence of all this evidence? I am not saying one couldn't do it. In fact, I remember an FAI I did a number of years ago where there was an issue whether the skipper of a fishing boat was drunk and the irresistible conclusion was that he was and I so found, so I am not saying you can't make a finding against the interests of somebody who has died. I am just wondering whether one has not to be very careful about it.

  Counsel:  Well, in my submission, no. The position is really no different from the position in many, if not most, civil cases, namely a detached and objective consideration of the evidence with a view to establishing on a balance of probabilities where that evidence points to. For example, on a detached, objective consideration of all the evidence properly before the court, if that evidence indicates pilot error then it is, with respect, my lord's duty to so find, free from any perfectly understandable desire to avoid such a conclusion. My lord does not start from any presumption against any such finding or any burden which requires to be rebutted or any onus of proof which requires to be rebutted by any party who takes a particular approach to the evidence. In other words, the natural sympathy which we all feel, I am sure, for the families of the pilots and indeed for the pilots themselves in these unfortunate circumstances, nonetheless does not in any way alter the normal approach of the court to a calm, objective consideration of such evidence as is before it. That is not to say that it is not open to your lordship to say well, I am not satisfied on this evidence. What I submit your lordship cannot do is to say well, I would have been satisfied on this evidence but in the absence of other evidence, for example evidence from the pilots, I am precluded from coming to any finding. That is why a cockpit voice recorder for example would have been a very useful item of equipment to have.

  Sheriff:  Well indeed, yes.

  Counsel:  But we don't have one and that is just an unfortunate fact which the court has to deal with."

  I accept that the approach outlined by counsel is correct, and it is this approach which I have sought to follow in considering my determination in this case. And lest there be any doubt about the matter, I should say that findings 25 and 29 above are made in terms of section 6(1)(a) of the Act, finding 30 in terms of section 6(1)(b) and the remaining findings in terms of section 6(1)(e).