100. To prevent the possibility of criminal proceedings being prejudiced by evidence aired at an FAI, where the civil standard of proof 'on balance of probabilities' applies, as opposed to the higher criminal standard of 'beyond reasonable doubt,' criminal proceedings will normally take precedence over any other proceedings, including FAIs.
101. There were six cases in our review where there were both criminal proceedings and an FAI. In all but one, the FAI followed the prosecution. The case where the prosecution followed the FAI concerned a death in the course of employment investigated by HSE, where on the basis of evidence elicited at the FAI, the prosecutor recommended there was sufficient evidence to prosecute the employer. The company subsequently pled guilty to a contravention of health and safety legislation.
102. The FAI legislation provides that the Lord Advocate can exercise discretion not to hold a mandatory FAI, if the circumstances have been sufficiently aired during criminal proceedings.  There are, however, some cases where the public interest goes beyond establishing culpability for the death and the wider circumstances of the death require to be fully examined to prevent deaths occurring in similar circumstances. This often requires different lines of inquiry to be pursued as illustrated in the case below.
Following a prosecution for the murder of a prisoner who was being held in segregation in a medical wing, an FAI was held to explore the suitability of the accommodation where the prisoner was held, including; the number of people in a cell; the use of medical wings for segregation purposes; and the adequacy of risk assessments for prisoners suffering mental health issues. While not the focus of the criminal case, the procedures and systems for treating prisoners with medical conditions raised issues of wider public concern.
103. There were seven cases where, following a thorough criminal investigation, a decision was made not to prosecute. There are a number of reasons for such decisions, including insufficiency of evidence or where the circumstances do not constitute a crime or merit criminal proceedings. Where the circumstances do not justify criminal proceedings, there may nonetheless be issues of public concern that require to be aired in an FAI to allay public fears. For instance, the collision of the RED-L Super Puma offshore helicopter, following a catastrophic gearbox failure resulting in the loss of 16 lives, gave rise to considerable public concern, given that this type of helicopter was the main mode of transport to and from offshore installations.
104. Cases including those with a substantive criminal investigation took on average 659 days from the date of death to the start of the FAI, compared to 589 days for those where criminality was excluded. It is inevitable that cases where there is a prosecution prior to an FAI will take longer to conclude as there are, in effect, two separate investigations. The over-riding priority is for COPFS to conduct a thorough investigation where criminal proceedings are in contemplation. The move to greater specialisation in the investigation of deaths has been mirrored in the investigation of serious crime with specialist teams investigating any death where there is suspected criminality, including homicides, road traffic fatalities and deaths caused through the unlawful supply of illegal drugs.
Liaison between SFIU and Criminal Investigators
105. Following the conclusion of a criminal trial, the case is transferred to SFIU to progress the FAI. At that time, there is often a meeting with the nearest relatives to introduce the person who will deal with the FAI. While the focus of the criminal proceedings and the FAI differ, we found that there is considerable scope for more effective liaison between those involved in the investigations. In particular:
- With the exception of cases dealt with by HSD, the decision as to whether there should be an FAI tends to be treated as a separate process that requires to be determined at the conclusion of criminal proceedings. As a result, there is no consideration of the different lines of inquiry that may be required for the purpose of an FAI until the conclusion of the criminal proceedings. This results in the SFIU team effectively starting afresh once the criminal investigation is concluded. While acknowledging that some issues may not be apparent at the outset of a criminal investigation, the possibility of an FAI, particularly in mandatory cases, should be considered at an early stage and raised in the report submitted to Crown Counsel for an instruction on whether to prosecute. This is the commendable approach taken by HSD who regularly seek Crown Counsel's instructions as to whether a prosecution and/or an FAI are appropriate. Providing early notification to SFIU of the possibility of an FAI would enable SFIU to maintain a watching brief on the criminal proceedings and engage in regular dialogue with the team dealing with the prosecution. At the very least there should be a debrief between the two teams at the conclusion of the criminal proceedings.
- Following prosecution, the possibility of an FAI is not always prioritised and there can be a delay in forwarding the case papers to the deaths investigations team.
Following a prosecution for the murder of a prisoner, the case papers were not transferred to the deaths unit for investigation and consideration of an FAI for almost a year.
106. An early indication of the possibility of an FAI and a debrief would prevent such delays.
Where criminal proceedings are instructed and the circumstances of a death require a mandatory FAI:
- COPFS should issue guidance requiring an instruction by Crown Counsel on whether a mandatory FAI is likely following the criminal proceedings; and
- COPFS should ensure there is a debrief between the team dealing with the criminal case and SFIU, at the conclusion of the criminal proceedings.
- There is a lack of communication and exchange of information between the criminal and SFIU teams. A particular difficulty arises due to the increasing reliance on electronic correspondence - of which a substantial amount is sent from and held within personal email accounts. This information is not always imported into the electronic case record or printed and placed in the case papers resulting in an incomplete picture of the investigation and the various lines of inquiries conducted by the criminal team. This requires to be addressed by reinforcing the necessity of importing this information into the case directory or depositing all emails in an accessible folder which is imported into the case directory at the conclusion of the criminal case.
COPFS should ensure that all operational case related emails are recorded and imported into the case directory.
- In almost all cases, we found that there was no handover meeting with the nearest relatives by the prosecutor dealing with the criminal case and SFIU. In some cases continuity was provided by a Victim Information and Advice ( VIA) officer who retained contact with the nearest relatives throughout the criminal and FAI proceedings. VIA is a specialist unit within COPFS, providing a service to victims, witnesses and bereaved families. VIA provide updates on the progress of cases, practical advice and support. The continued presence of the VIA officer, with whom the bereaved family had built up a rapport throughout the criminal proceedings, was greatly appreciated.
107. However, this approach was not uniformly applied and there were cases where the lack of a single point of contact throughout both proceedings was a source of dissatisfaction and in some cases distress for nearest relatives.
108. The impact of an unexpected death of a loved one, especially if the death was caused by a criminal act, is devastating and the distress is compounded by the trauma of having to interact with an impersonal criminal justice system. If COPFS wants to aspire to deliver a world leading public prosecution and deaths investigation service, the bereaved relatives' needs must be at the heart of the process; this requires a dedicated single point of contact available throughout all proceedings.
There should be a single point of contact for the nearest relatives throughout the criminal proceedings and any subsequent FAI.