Annex 2: National Protocol for the Police Service of Scotland, the Crown Office and Procurator Fiscal Service, and Child Protection Committees on Learning Reviews.
The parties to this protocol document are Child Protection Committees (CPCs), the Crown Office and Procurator Fiscal Service (COPFS) and the Police Service of Scotland.
The aim of this protocol is to provide a framework between the parties for conducting Learning Reviews (LRs) when criminal prosecutions, Fatal Accident Inquiries (FAIs) or investigations with a view to such proceedings are running in parallel and for the sharing and exchange of relevant information generated by each process.
The parties to this protocol recognise that criminal proceedings, FAIs and LRs are important processes which should each be carried out as expeditiously as possible, and should not adversely affect the progress of the other unless it is necessary in the interests of justice.
All processes are crucial to ensuring the safety and wellbeing of children and young people. The parties recognise that a significant consideration in any decision should be the welfare of children and young people.
An LR examines the circumstances and context of a child being harmed or killed, to evaluate the nature and quality of professional contact, if any, with the child, to identify any system failures which may impact on other children, and to learn from the incident, any specific lessons which will strengthen child protection systems, locally and nationally.
An LR is not an enquiry into why any child or young person died, was harmed or to establish who may be culpable. These are matters for criminal investigation and for employer disciplinary procedures as appropriate. It is further acknowledged that agencies may additionally have their own internal/statutory review procedures to investigate serious incidents and mechanisms for reflective practice reviews, which take place independently of any LR or criminal investigation.
LRs are commissioned by local CPCs. Protecting children and young people is an inter-agency and inter-disciplinary responsibility. While social work children’s services usually lead on the discharge of local authorities’ legal responsibilities in respect of safeguarding children, any agency (including voluntary sector organisations) or profession may be the initiator of the LR process.
LRs will sometimes be undertaken in circumstances where there is no concurrent criminal investigation or FAI. Similarly, some cases of criminal investigation involving harm to children or young people will not be subject to a LR. Good relationships and liaison arrangements between CPCs, COPFS and Police Scotland will ensure that parallel processes are pre-planned and that changes in the status of a case (e.g. where early in an LR the need arises to refer matters for a criminal investigation) are readily shared.
Learning Reviews and the work of Police Scotland and COPFS
The paramount consideration in any decision or arrangement in respect of LRs taking place alongside other investigations is the need to protect children and young people from harm. In many instances this will be achieved by the successful prosecution of those who pose a threat to children in conjunction with securing improvements in systems which exist to prevent children being exposed to harm.
In the event of a child fatality or a case of serious harm which may be subject to an LR, it is essential for the CPC, Police Scotland and COPFS to confirm the likely processes of review and investigation to which the case is likely to be subjected (e.g. LR, criminal investigation, FAI, LAC Review by Care Inspectorate, Health and Safety investigation, Fire Brigade investigation).
At the earliest possible opportunity where it is identified that an LR may be appropriate, the Chair of the CPC or designated member should contact Police Scotland to confirm:
- whether a death report or criminal case has been reported to COPFS; or
- that there is evidence of a crime having been committed although no report has been submitted to COPFS
Where a report has been submitted, a Procurator Fiscal (PF) reference number should be ascertained.
Where a criminal case or death report has been reported to COPFS, the Chair of the CPC or designated member should, in conjunction with the local policing Detective Superintendent or the Senior Investigating Officer, complete the LR Notification Form (Annex 2.1), setting out the focus of the review, the witnesses who will be contacted (if any) and the timescales for the work.
The LR Notification Form should be sent to the Single Point of Contact (SPOC) within COPFS and copied to the local policing Detective Superintendent. The SPOC within COPFS will ensure that a relevant member of staff is tasked with considering the LR Notification Form and contacting the CPC and the local policing Detective Superintendent to arrange a meeting and/or confirm the steps that the CPC can take. Where appropriate, the Senior Investigating Officer will attend.
In circumstances where a case has not been reported to COPFS and a police investigation is ongoing, the Chair of the CPC or designated member should complete the LR Notification Form, setting out the focus of the review, the witnesses who will be contacted (if any) and the timescales for the work.
The LR Notification Form should be sent to the local policing Detective Superintendent who, along with the Senior Investigating Officer, will prepare a report for COPFS on the ongoing police investigation highlighting its progress, the ongoing investigative strategy, remaining lines of enquiry and an assessment on the likelihood of a report being submitted to COPFS.
The LR Notification Form should then be sent to the SPOC within COPFS along with the report on the investigation prepared by the police. The SPOC within COPFS will ensure that a relevant member of staff is tasked with considering the LR Notification Form and contacting the CPC and the local policing Detective Superintendent to arrange a meeting and/or confirm the steps that the CPC can take. Where appropriate, the Senior Investigating Officer will attend.
Consideration will be given in this discussion to arrangements which allow review of systems critical to the welfare of children and young people to get underway in the context of the need to secure and preserve the integrity of best evidence within criminal and other investigations.
Timescales for a Learning Review
It is desirable that the LR should be undertaken as speedily as feasible in order to identify and redress any individual or systemic factors which may put children or young people at risk. CPC’s are required to agree timescales for when reports should be produced in light of the circumstances and context of that particular case.
The timing of different processes will be determined by the particular circumstances of individual cases. It should not be necessary to postpone the initiation of a LR until the conclusion of criminal proceedings or FAI but care must be taken that the LR does not prejudice or put in jeopardy either of these proceedings. Therefore in some instances, an LR process may have to be adjourned after an initial review of critical systems until the conclusion of aspects of the criminal or other investigations or alternatively it may be possible to take information from a limited number of witnesses at first.
Criminal cases and FAIs can take a long time to resolve and there may be some circumstances where the CPC, in carrying out its duties to conduct the LR, considers it would not be appropriate to wait to gather all possible learning about how best to safeguard children and young people. If, prior to charge or conclusion of a trial or FAI, those engaged in the LR wish to undertake interviews with people who are either witnesses, suspects or who have been charged with a criminal offence or potential witnesses in a FAI, this should be agreed beforehand with Police Scotland and COPFS.
Where there is an FAI, or potential for one, and where no criminal proceedings are anticipated, the conclusions of the LR may assist the decision-making and such interviews should be encouraged.
Where there are criminal proceedings anticipated or ongoing and COPFS are giving consideration as to whether witnesses can be interviewed as part of the LR process, the following are some of the factors which may be taken in to account:
- the risk around the rehearsal of evidence in advance of trial
- the vulnerability of witnesses
- the risk of any confusion about the two processes
- the impact of information being in the public domain
Disclosure/Freedom of Information
If agreed by Police Scotland and COPFS, an LR will usually involve the reviewer interviewing members of staff of the relevant authorities who have had engagement with the child or young person, as well as people who may be considered as having a significant part in the life of the child or young person. The material generated from this activity, including interview notes is likely to contain information which is of relevance to any potential criminal proceedings or FAI.
Police Scotland has a duty to reveal the existence of relevant information to COPFS and all such information must be made available to the Reporting Officer/SIO as soon as possible for consideration. To allow Police Scotland to fulfil this duty, in these circumstances close collaboration between the Lead Reviewer and the SIO will be required. Revelation to the prosecutor does not mean automatic disclosure to the defence. COPFS will assess whether the information is material and thus whether it should be disclosed and how it should be disclosed to the defence. It should further be noted that the law is not settled in relation to Freedom of Information status of LR reports and the material from which they are compiled. A presumption of exemption currently exists, but this has not been tested.
Interview of parent, carer or significant family members
It is good practice that parents, carers and significant family members are interviewed or otherwise engaged during the LR process to seek any learning from them. The CPC, COPFS and, where appropriate, the police officer leading the investigation, or their representative, must discuss the timing and scope of such interviews or other engagement. While there may be no need to delay LR interviews pending the outcome of criminal proceedings or FAI, a balance must be achieved between the need to capture relevant data and learning in order to protect children and the investigation of a death or prosecution of a criminal case in the public interest.
The best timing of such interviews will differ depending on the circumstances and features of the case and as such arrangements should be made on a case-by-case basis.
Persons conducting LR interviews must be conversant with rules of evidence and competent in the management of investigative processes running in tandem with criminal investigations.
Interview or individual suspected or accused of a crime
Where suspicion has crystallised on a person for a crime, permission must be sought from COPFS before any contact is made with that person as part of any LR process. This would apply if the person has been charged and either released, released on police bail, bailed by the court or has been remanded in custody. It will also apply if the person has not been charged but remains a suspect, including any period where a suspect is released on Investigative Liberation.
If there is any doubt as to whether or not a person remains a suspect in any given case, the matter should be raised with Police Scotland and COPFS.
If permission is given by COPFS, the individual’s legal representative must also be informed that the individual is to be interviewed. It should at all times be stressed to legal representatives that their client’s participation in the LR process is voluntary, that no adverse inference will be drawn from a refusal to participate and that any information provided for the purpose of the LR may be disclosed in criminal or related proceedings.
Interview of member of staff from relevant authority or other professional witnesses
It is good practice that members of staff from the relevant authority or other professional witnesses are interviewed or otherwise engaged during the LR process to seek learning from them. In all cases where COPFS is approached by a CPC to speak to members of staff from the relevant authority or other professional witnesses, there is a presumption that this will be facilitated unless speaking to the witness is likely to prejudice a criminal prosecution or a deaths investigation. In assessing this, COPFS will consider factors such as the nature of the case and the importance of the evidence being given by that witness in the context of the case.
Duty to keep circumstances under review
Investigations are dynamic. It is incumbent on both Police Scotland and COPFS to keep the circumstances of any investigation under review and where it is apparent that there has been a change in circumstances, which may lead to the conclusion that a previous decision regarding interviewing of witnesses is no longer appropriate, that the matter is revisited. This may include the rescinding of previous agreement given.
Publication of the findings of a Learning Review
In circumstances where there is an ongoing criminal investigation, prosecution or death investigation, the CPC must seek permission from COPFS before publishing learning from a LR. Publication may need to be delayed if it is likely to prejudice an ongoing criminal investigation, prosecution or death investigation.
It should be possible, in many circumstances, to manage LRs and criminal proceedings/FAIs simultaneously, without one jeopardising the other. In their own way, all processes are important to protect and promote the safety and wellbeing of children and young people, which should always remain the primary consideration.
The learning obtained from an LR is largely dependent on the willingness of individual professionals and family members to engage in the process. They need to have confidence that any information they give will be treated with respect, and they should be made aware if it could be used for any purpose other than that for which it was intended.
Annex 2.1 – Learning Review Notification To Crown Office & Procurator Fiscal Service
Where a criminal case or death report has been submitted to COPFS and a Learning Review is to be conducted, the Chair of the Child Protection Committee (CPC) or designated member should, in conjunction with the local policing Detective Superintendent or the Senior Investigating Officer, complete this Notification Form and submit it to the Single Point of Contact (SPOC) within the Crown Office and Procurator Fiscal Service (COPFS) copying in the local policing Detective Superintendent.
In circumstances where a case has not been reported to COPFS, the Chair of the Child Protection Committee or designated member should complete this Notification Form and send it to the local policing Detective Superintendent who will arrange for a report to be prepared for COPFS. Once prepared, this Notification Form along with the report should be submitted to the SPOC within COPFS.
*This report should only be submitted once authority has been given by the Chair of the CPC after a LR has been agreed but before it has commenced.
**All email communications must be made from a secure email address i.e. .Gov.Uk/NHS.net or PNN.Police.uk and sent to the agreed copfs.gov.uk address.
The below tables are in the supporting files of this publication.
Stage 1: Learning Review Notification
Stage 2: COPFS response