Introduction and Methodology
This is the fourth thematic report of the Inspectorate of Prosecution in Scotland.
This particular thematic report was prompted by the work of the Independent Review Group on Retention of Organs at Post Mortem chaired by Professor Sheila McLean. This in turn led to the passing of the Human Tissue (Scotland) Act 2006.
The Review Group's Phase 3 report (published November 2003) recommended that Crown Office and Procurator Fiscal Service should arrange for an audit of the effectiveness of the arrangements it had put in place.
In the event the remit for this report was wider and included a review of the current arrangements for liaison with next of kin in death cases with particular reference to organ retention.
The report is based on evidence obtained in a number of ways including the use of questionnaires, interviews with relevant staff, consultation with relevant bodies and on site visits. A Reference Group consisting of the relevant criminal justice partners and others met regularly to provide advice and assistance to the Inspectorate team.
Background Information and Guidance
This chapter looks at the role of the Procurator Fiscal and shows that out of a total number of deaths in Scotland about 25% are reported to the Procurator Fiscal. This contrasts with about 45% of deaths in England reported to the English Coroner.
The guidance available to Procurators Fiscal in the investigation of deaths is considered and the role of Victim Information and Advice.
Views from Staff
It was intended to get views from service providers (ie staff and others) and separately system users.
In this chapter we analyse the results of a questionnaire sent to all District Fiscals in Scotland. The questionnaire was designed to obtain feedback from staff providing the service on the usefulness of the guidance provided and on day to day experience of using the system.
The question of organ retention was also covered and the various methods used by Procurators Fiscal to communicate with nearest relatives and others in such cases. Three problem cases were highlighted where Procurators Fiscal had not been advised of retention at a post mortem but there was clear evidence that the systems in question had been tightened to prevent the recurrence of this in the future.
The stressful nature of the work in dealing with bereaved persons and next of kin was commented on by several contributors, as was a perceived absence of support such as bereavement training or bereavement counselling. We comment on the current training programme.
Overall feedback from Fiscals was that the new chapter of guidance on dealing with deaths was a big improvement.
In addition to the District Fiscal questionnaires we also examined approximately 400 case papers in relation to deaths throughout Scotland and noted several examples of good practice.
However, we did find that some areas could be strengthened in particular audit trails and the amount of information recorded on the Departmental IT system.
Feedback from Service Users
We try to take a consumer based approach to inspection work and attempted to get feedback from persons actually using the service.
Following advice from Victim Support Scotland 200 questionnaires were sent out arising from our examination of 400 cases. These were designed to elicit views and feedback from service users on how the system was operating in practice from their perspective.
Overall feedback was positive. It did show underuse of the Departmental leaflets (now under review) although in contrast to that the majority (84%) of persons who replied indicated that they had in fact received all the information they required.
Virtually all respondents indicated that they were treated with courtesy and respect which is of course to be expected but, nevertheless, a satisfying endorsement of the way people had been treated.
In addition to the individuals contacted a number of organisations provided us with their perspective including the Stillbirth and Neonatal Death Society ( SANDS). SANDS highlighted the hurt relatives felt where there had been unknown retention.
The organisation Families of Murdered Children ( FoMC) also made some comments and welcomed developments such as the creation of Victim Information and Advice in recent years.
View from Pathologists and Other Medical Personnel
In addition to staff views and the views of persons using the service it was felt important to get the views from pathologists and other medical personnel who were also involved in providing a service in death cases.
All 4 of the University based Departments of Forensic Pathology (Aberdeen, Dundee, Edinburgh and Glasgow) were contacted as were a host of other pathologists and medical personnel throughout Scotland.
Organ retention and to a lesser extent organ donation were considered in some detail. The overwhelming evidence given to us was that organ retention at Fiscal post mortems was now virtually non-existent. We did receive some feedback that on 3 occasions the system had broken down and Procurators Fiscal had not been advised of retention by the relevant Pathology Department but these had now been tightened up and were unlikely to recur in the future.
The number of hospital post mortems not instructed by the Procurator Fiscal was also reported as having declined (along with organ retention in these) in recent years. Various reasons were given for this including better diagnosis of illness in life.
Generally, so far as the medical input was concerned, liaison with Procurators Fiscal was described as good. In particular pathologists seemed willing to meet with next of kin in difficult cases to explain the circumstances usually in the presence of the Procurator Fiscal. This is a commendable approach.
Some concern was expressed about the role of the Procurator Fiscal at the scene of suspicious deaths and at the subsequent post mortem. In addition the number of Forensic Pathologists was described to us as being very small for Scotland (about 8 persons) and it was suggested that it would be useful for a forum to exist to enable Forensic Pathologists and others to discuss matters of mutual interest and we make a recommendation to that effect.
The question of organ donation also arose in the course of our investigations and we received feedback to the effect that organ donation was rarely feasible in the types of deaths which are the subject of reports to Procurators Fiscal but we did come across several examples where this had taken place and there was no evidence that Fiscals were in any way obstructing donation of organs in cases dealt with by them.
Post Mortems, Organ Retention and Donation
In Chapter 6 we look more closely at post mortems and organ retention and donation.
The total number of Fiscal post mortems in Scotland is analysed and it appears that post mortems are instructed by Procurators Fiscal in about 50% of cases reported to them. Curiously this is very similar to the rate in England instructed by Coroners.
The instructions to Procurators Fiscal in the sensitive area of organ retention are examined and the difficult question of disposal where retention has had to take place.
Over the period January to November 2006 21 Procurator Fiscal Offices were visited by the Inspectorate team with a particular focus on organ retention. It was found that organs had been retained on 22 occasions and we analysed the type of organ and its ultimate disposal. In this context retention included even short-term retention (ie where the organ is returned to the body prior to the body's release) to show the kind of retention that was necessary and what in practice was happening.
In addition, 3 cases of organ donation were examined and another case was brought to our attention, a recent large-scale donation in Glasgow.
Following on from the work of the Independent Review Group on retention of organs we contacted all the NHS Boards across Scotland in an attempt to update the information supplied to that Committee.
The figures obtained demonstrate that the number of hospital post mortems not instructed by the Procurator Fiscal has declined in recent years (and also organs retained at such). However the number of Fiscal post mortems has remained relatively steady which would indicate that recent problems with the holding of post mortems and organ retention has not inhibited Fiscals from carrying out proper investigation in such deaths. However, it has to be stressed that even in Fiscal post mortems retention is now a very rare event indeed.
Although there are many categories of deaths, road deaths stood out as an area of particular concern with constant references in the media.
We analyse the number of road deaths in Scotland and compare that to the number of homicides (there are 3 times as many road deaths on average as there are homicides). This we feel is an interesting point as the effect of a road death for nearest relatives, next of kin, etc. can be every bit as traumatic as a homicide. These are sudden, violent deaths with huge emotional and financial consequences.
We examine the background law and look at the offence of causing death by dangerous driving (Section 1 of the Road Traffic Act 1988) and the lesser offence of careless driving (Section 3 of the Act). We attempt to analyse the relevant law and note that it is very difficult for prosecutors to explain to nearest relatives etc what the law actually means.
We met with several nearest relatives who had suffered such losses most of whom were referred to us by SCID (Scotland's Campaign against Irresponsible Drivers).
We anticipate the coming into force of the new Road Safety Act 2006 which creates the offence of causing death by careless driving.
We comment on the Crown policy of taking cases of causing death by dangerous driving only in the High Court although analysis of sentences passed showed average lengths which were below the maximum which could be imposed by the High Court. These are averages and there were, of course, many sentences imposed within the High Court range.
We repeat concern expressed to us about the age when a licence can be obtained and the high mortality rate among the young. This, of course, is a matter for others but of interest in passing.
We also note calls for Fatal Accident Inquiries ( FAIs) to be instructed by the Lord Advocate in all road deaths or at least in all road deaths where there is an element of careless driving. We are of the opinion that it would not be correct or advisable for Fatal Accident Inquiries to be instructed in all road deaths and that the present discretionary system is more in line with the philosophy of the Fatal Accidents and Sudden Deaths Inquiries (Scotland) Act 1976.
We did receive strong representations, however, regarding cases being either dropped or pleas being accepted to lesser offences quite often at a late stage. Although these cases are extremely small in number they do have a high impact especially in the media. We accordingly make a recommendation that a reduced charge should not be accepted unless there has been a change in circumstances and not without the circumstances being explained to the nearest relative, etc.
Crown Office and Procurator Fiscal Service on its Intranet has a range of diversity guidance for staff and we examine what is available and are of the opinion that it is extremely comprehensive and useful.
As we carry out office inspections in tandem with thematic reports the opportunity was taken when carrying out 34 such inspections to examine individual case papers relating to deaths where any racial or cultural issues might be involved.
We report on about 18 such deaths and the overall conclusion is that such deaths are treated in a sensitive and considerate fashion by Procurators Fiscal while bearing in mind the need to carry out a proper investigation. We make the point that we received no complaints in this regard from any of the people who responded to our various requests for information.
Conclusions and Recommendations
In Chapter 9 we review the previous chapters and make 9 specific recommendations.
We anticipate the possible roll out of the Victim Statement Scheme in Scotland which has already been piloted and which may provide the opportunity for next of kin to have a voice at subsequent court hearings.
In general, subject to the various factors that we comment on throughout the report, we found that overall, deaths were investigated properly and in a sensitive fashion. We mention the need for training (already under consideration by the Department) and strongly recommend that the training programme be rolled out as soon as possible to help raise awareness and facilitate the provision of a good service.
Joseph T O'Donnell
Inspectorate of Prosecution in Scotland