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Roseleen Kennedy & Jean Black v. The Lord Advocate and the Scottish Ministers & the Lord Advocate & Scottish Ministers [2009] CSOH 1


On 5 February 2008 an Opinion was issued and the Court pronounced interlocutors in the two petitions, which reduced the decision of the first respondent in refusing to order a Fatal Accident Inquiry into the deaths of Mrs. Eileen O'Hara and the Reverend David Charles Black. At that time the court ordered that a further hearing be arranged in each petition for the discussion of further procedure. After 5 February 2008, the Court was advised that the respondents did not intend to reclaim against the interlocutors. On 23 April 2008 the Cabinet Secretary for Health and Wellbeing, Nicola Sturgeon MSP, made a statement to the Scottish Parliament on behalf of the Scottish Government in which she announced that a judicially-led public inquiry under section 28 of the Inquiries Act 2005 would be held. Here the petitioners sought declarator on a number of matters connected to that public inquiry including declarator that "an inquiry which was to be held under and in terms of Section 28 of the Inquiries Act 2005 alone would not, in fact, be compatible with the requirements of providing an effective remedy for the established breaches of the petitioners' Article 2 rights". In addition the petitioners sought an order on the first respondent to hold Fatal Accident Inquiries under the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976, and an order on the second respondents to waive the financial conditions of eligibility for legal aid which might otherwise apply to the next of kin. At a late stage during the continued first hearings of the petitions, the petitioners tendered a minute of amendment in each petition, which sought inter alia to convene the Advocate General as an additional respondent to the petitions. Counsel for the respondents opposed the motions to allow the minutes of amendment to be received and intimated to the Advocate General. Here the Court considered whether the Advocate General should be convened as a party to the proceedings at such a late stage in addition to the various matters contained within the petitions.