The core functions and jurisdiction of the police in Scotland are specified by the Police and Fire Reform (Scotland) Act 2012. This includes a duty to protect life and property. The police are an independent investigative and reporting agency to both the Crown Office and Procurator Fiscal Service and to the Children's Reporter (SCRA). The police have a duty to investigate both crimes/offences and also any sudden and unexplained deaths.
Crimes and offences
If the police get information, by whatever means, that a crime or offence has been committed, they are duty-bound to investigate. Principally the role of the police is to establish:
a) Whether or not a crime or offence has been committed;
b) Whether there is sufficient evidence to support a criminal charge;
c) Whether grounds exist for referral to the Principal Reporter, under the terms of the Children's Hearings (Scotland) Act 2011 section 67;
d) Whether there is sufficient evidence to justify the detention and/or arrest of the alleged offender; and thereafter to
e) Submit a report to the Procurator Fiscal and/or the Principal Reporter.
Where allegations of physical, sexual and emotional abuse are made involving children or young people, the police consider the following - in collaboration with other agencies - before initiating the investigation:
- The immediate safety and wellbeing of the child or other children;
- The need for medical attention, immediate or otherwise;
- The opportunity of access to the victim and to other children or young people by the alleged perpetrator;
- The relationship of the alleged offender to the victim;
- The time over which the alleged abuse has occurred;
- The need to remove the child or other children from the home, although this will only take place after discussion between the supervisor on duty in both the police and the relevant social work departments; and
- The need to obtain and preserve evidence.
After consideration of the above, which should establish the risks and needs of the child, the investigation will begin. In many such cases a senior investigating officer (SIO) will be appointed to oversee the investigation.
In matters where a serious crime or offence has been committed, the investigation will usually be conducted by specially trained officers from the Criminal Investigation Department. If the crime involves the abuse of a child, these officers will be supported by specially-trained officers from the Public Protection Unit.
The evidence of the crime or offence will be gathered in a variety of ways. These would include obtaining statements from key witnesses, gathering forensic evidence such as DNA, fingerprints, hairs and fibres and interviewing suspects.
Following the investigation, the police will prepare a report and this will be submitted to the Procurator Fiscal and/or the Children's Reporter. Decisions will also be made as to whether the accused should remain in police custody pending their appearance in court, whether they should be released on undertaking which may specify certain restrictions/provisions, or whether they should be released pending report and summons.
Sudden and unexplained deaths
All sudden and unexplained deaths must be reported to the Procurator Fiscal. The death is usually reported by a doctor (either a general practitioner (GP) or a hospital doctor), by the police or a local registrar of births, deaths and marriages.
Whether or not the cause of death is known, if a doctor is of the view that a death was clinically unexpected, it is described as a 'sudden death'. When the cause of death is not known or is not clear to a doctor, this is described as an 'unexplained death'.
Once a person's death is reported to the Procurator Fiscal, it is for the Procurator Fiscal to decide what further action, if any, will be taken.
The Procurator Fiscal may decide that further investigation is required which may include, but is not limited to, the instruction of a post mortem examination to determine the cause of death and/or instructing the police to carry out further enquiries and provide a report.
While some investigations may conclude once a cause of death is known, others may require further detailed and sometimes lengthy investigation, for example, those involving complex technical and medical issues which may require the instruction of independent experts to provide an opinion. At the conclusion of the Procurator Fiscal's investigation, it may be necessary for a fatal accident inquiry (FAI) to be held.
Once a death has been reported to the Procurator Fiscal, they have legal responsibility for the body, usually until a death certificate is issued by a doctor and given to the nearest relative. The Procurator Fiscal will usually surrender legal responsibility for the body once the nearest relative has the death certificate.
In a small number of cases, the Procurator Fiscal may need to retain responsibility for the body for longer to allow for further investigations to be carried out. This happens with only a very small number of deaths, most likely where the death is thought to be suspicious. If this is necessary, nearest relatives will be advised by the police or the Procurator Fiscal.
Post mortem examination
The Procurator Fiscal will instruct a post mortem examination for all suspicious deaths; all deaths which remain unexplained after initial investigation; and in a number of other situations where there are concerns about the circumstances or cause of the death.
Where circumstances suggest that criminal conduct may have caused or contributed towards the death, this is described as a 'suspicious death'. The Procurator Fiscal will instruct the police to investigate the circumstances and consider whether criminal charges should be brought which may lead to a prosecution. All deaths where the circumstances are thought to be suspicious must be reported to the Procurator Fiscal.
In circumstances where the death is considered to be potentially suspicious, the Procurator Fiscal may direct a two-doctor post mortem examination to corroborate the finding. This would be an essential element in the chain of evidence, particularly where criminal investigations and/or proceedings were to be instigated later.
Normally, a senior investigating officer (SIO) will be appointed to investigate suspicious deaths and specially trained officers would carry out these investigations. These investigations may well identify criminality and also those who may be responsible, and in these circumstances the police would follow their established investigative procedures.
Good practice would always suggest that a family liaison officer acts as the single point of contact between them and the police.
In child death cases, the procedures applied and followed are in fact the same, albeit, the services of a paediatrician and/or paediatric pathologist would be sought, often along with a forensic pathologist.
Fatal accident inquiry (FAI)
An FAI is a public court hearing which inquires into the circumstances of a death. It will be presided over by a sheriff and will usually be held in the Sheriff Court. If the death occurred as a result of an accident while the deceased was in the course of employment or where the person who died was at the time of death in legal custody (for example in prison or police custody) an FAI is mandatory. The Lord Advocate has discretion to instruct an FAI in other cases where it appears to be in the public interest that an inquiry should be held into the circumstances of the death. An FAI would not automatically be held in respect of a child death.
The purpose of an FAI is to ascertain the circumstances surrounding the death and to identify any issues of public concern or safety and to prevent future deaths or injuries. The Procurator Fiscal has responsibility for calling witnesses and leading evidence at an FAI, although other interested parties may also be represented and question witnesses.
At the end of an FAI, a sheriff will make a determination. The determination will set out:
- where and when the death and any accident resulting in the death took place
- the cause of death, or any accident resulting in the death
- any reasonable precautions that might have meant the death and any accident resulting in the death could have been avoided
- any defect in working practice which caused or contributed to the death or any accident resulting in the death
- any other facts relevant to the circumstances of the death
The court has no power to make any findings as to fault or to apportion blame between individuals. A sheriff has the power to recommend steps which ought to be taken to prevent a death occurring in similar circumstances in future. While there is no compulsion on any person or organisation to take such steps it would be unusual for such a recommendation to be disregarded.
Death of a looked after child (LAC) review
This review is triggered by the death of a child who is, or has previously been, looked after by a Scottish local authority. The purpose is for the local authority to assure itself and others, including Ministers, that it acted promptly and competently in the particular case and to identify any necessary improvements. Public interest may needs to be taken into account.
This inquiry is internal to local authorities and is based on this guidance. The expectation is that Scottish Ministers and the Care Inspectorate would get a report as soon as possible (and not more than 28 days) after the death.
- Examine the arrangements made for the child's wellbeing during the time they were looked after;
- Assess whether action taken by the local authority may have contributed to the child's death;
- Identify lessons which need to be drawn to the attention of the authority immediately concerned and/or other authorities or other statutory agencies;
- Review legislation, policy and guidance in the light of a particular case or any trends emerging from deaths of children or young people being looked after, or previously looked after.
MAPPA significant case review
The fundamental purpose of MAPPA is public protection and managing the risk of serious harm posed by certain groups of offenders. It is understood that the responsible authorities and any partners involved in the management of offenders cannot eliminate risk - they can only do their best to minimise that risk.
It is recognised that, on occasions, offenders managed under the MAPPA will commit, or attempt to commit, further serious crimes and, when this happens, the MAPPA processes must be examined. This is firstly to ensure that the actions or processes employed by the responsible authorities are not flawed and, secondly, where it has been identified that practice could have been strengthened, plans are put in place promptly to do so.
There are five stages to a MAPPA SCR;
- Identification and notification of relevant cases
- Information gathering
- Decision to proceed, or not, to an SCR
- Significant case review process
- Report and publication
The criteria for undertaking an SCR in MAPPA is:
- When an offender managed under MAPPA is charged with murder, attempted murder or a crime of serious sexual harm;
- Significant concern has been raised in respect of the management of a MAPPA offender which gives rise to serious concerns about professional and/or service involvement;
- Where it appears that an offender managed under MAPPA is killed or seriously injured as a direct result of their status as a sex offender becoming known.