Death cases – A thematic report on liaison in death cases with particular reference to organ retention

Role of Procurator Fiscal

Primarily the role of the Procurator Fiscal in Scotland is in connection with the prosecution and investigation of crime. Separate, but frequently related to that role, is the duty of the Procurator Fiscal to investigate all sudden, suspicious, unexplained, unexpected or accidental deaths and also to investigate any death occurring in circumstances which may give rise to an issue of public safety or concern.

Deaths in Scotland

Table 1 is reproduced from the latest statistics published by the General Register Office for Scotland. It shows total numbers of deaths in Scotland on an annual basis, by gender.

Table 2 below shows the numbers of deaths reported to individual Procurator Fiscal Offices across Scotland over the last two financial years.

Table 1 - Deaths by Gender, Scotland, 2000 to 2005 ¹

Table 2 - Deaths Reported to Procurator Fiscal Offices in Scotland, 2004-05 and 2005-06 ²

It can be seen from the above tables that approximately 25% of deaths in Scotland are the subject of a report to the Procurator Fiscal. In contrast in England about 45% of deaths are reported to the Coroner.

There are no Coroners in Scotland although the area of activity undertaken by the Procurator Fiscal is not dissimilar to the role of the Coroner in England. There are some important differences, however, mainly in procedure.

Guidance to Procurators Fiscal in this important part of the work is provided by the Crown Office in the form of a Book of Regulations and also in individual Minutes and Circulars sent out to Procurator Fiscal Office staff.

"I had a meeting with a deputy Procurator Fiscal. He was helpful and informative."

In the Book of Regulations a complete chapter (Chapter 12) is devoted to the investigation of deaths. This was updated as recently as June 2006.

Chapter 12 gives very detailed advice and instructions to Procurators Fiscal in the investigation of deaths. The range of deaths reported to the Procurator Fiscal is considerable including murder cases at one end of the spectrum and sudden deaths which have resulted from natural causes at the other.

The stated objectives of the Crown Office and Procurator Fiscal Service in relation to the investigation of deaths include:

• To ensure that all sudden deaths made known to the Procurator Fiscal are investigated impartially, speedily, thoroughly and sensitively and that appropriate action is taken including the conduct of public inquiries.
• To provide services that meet the information needs of victims, witnesses and nearest relatives in co-operation with other agencies.

"The Procurator Fiscal's Office contacted me by letter .... I was very pleased with the tone of the letter, it was well phrased and entirely appropriate."

The guidance states that no other official has any duty in relation to enquiry into death comparable to that of the Procurator Fiscal and accordingly, having been entrusted with this public duty, Procurators Fiscal must undertake it with the greatest care and attention.

The principal aims of inquiry into and further investigation of deaths are:

• To minimise the risk of undetected homicide or other crime
• To determine whether a death has resulted from criminal action
• To eradicate dangers to health and life in pursuance of the public interest
• To allay public anxiety
• To preserve evidence
• To determine whether a Fatal Accident Inquiry or any other form of public inquiry should be held and to take appropriate steps to prepare for such an inquiry
• To ensure that the deceased's nearest relative is kept advised of the progress of the investigation consistent with the proper conduct of investigation and also consistent with the wishes of the family
• To ensure that full and accurate statistics are compiled.

"At the time of my wife's death the Procurator Fiscal was very helpful to myself and my family."

The Book of Regulations provides a list of deaths which must be further investigated and these include deaths arising from industrial disease or industrial poisoning, any death where the circumstances indicate suicide, any death where there are indications that it occurred under medical or dental care, any death resulting from a road traffic collision, any death by drowning and a number of others.

So far as the method and level of investigation is concerned the Book of Regulations also gives guidance to Procurators Fiscal and makes it clear that it is the duty of the Area Procurator Fiscal to set in place systems to receive and take cognisance of reports of all deaths, 1) from the Police, 2) from hospital doctors, 3) from doctors in general practice, 4) from Registrars, 5) from relatives of the deceased, 6) from any other source including the media, 7) resulting from accident in the course of employment at occupation from the Health and Safety Executive or any source and 8) occurring while the deceased was in legal custody.

So far as the level of investigation is concerned on a death being brought to his or her attention it is the duty of the appropriate Procurator Fiscal to make initial inquiry and decide whether and to what extent further investigation is required and carry out such investigation. The level of investigation is left to the discretion of the Procurator Fiscal.

Further guidance is given to Procurators Fiscal by way of a manual of practice including advice on scientific examination, forensic examination etc.

The Book of Regulations provides that Area Procurators Fiscal must ensure that all staff dealing with death investigations are aware that they should be carried out in accordance with the guidance in the practice manual and must monitor investigations to ensure compliance with the guidance so far as is reasonably practicable.

The options available to the Procurator Fiscal on receiving an initial report of a death which can be by way of a telephone report by a doctor including hospital doctors or by a Police Report or from the Registrar are to:

1. -Take no further action. This would be the decision if the doctor reporting the death was prepared to issue a Death Certificate certifying the cause of death and the Procurator Fiscal was satisfied from the history reported that the death occurred from natural causes and did not require further investigation.

2. -Very occasionally, when a death has not been certified, a hospital doctor will inform the Procurator Fiscal that the hospital has received permission from the relatives to carry out a post mortem examination. In these cases, where a hospital post mortem has been agreed to and it is obvious that the death comes from natural causes but the cause has not been accurately ascertained, the Procurator Fiscal may agree to a hospital post mortem being carried out but inform the doctor that he must be informed of the cause of death once it has been ascertained after the post mortem.

3. -Carry out further investigations. Further investigation is usually required in the case of deaths associated with the provision of medical or dental care. The extent of the further investigation will depend on the circumstances of the case but would certainly normally include the carrying out of a post mortem examination.

4. -Instruct a Police Report. Occasionally where the cause of death has not been ascertained or there are further enquiries required the Procurator Fiscal may request the Police to submit a report.

Clearly the extent of investigation in any death will reflect the circumstances in which it has occurred and the degree of suspicion concerning criminality.

So far as further reporting to Crown Office for Crown Counsel's instructions is concerned the guidance gives categories of such deaths to be reported by the Procurator Fiscal, some by way of what is known as a summary report and some by way of full precognition (where witnesses have been seen, interviewed and their statements noted).

Special mention should be made of suicides. Procurators Fiscal will report a death where the circumstances point to suicide to Crown Office by way of an abbreviated report. The abbreviated report as the name suggests contains the essential information only regarding the deceased and the circumstances of the death and includes in particular the views of the next of kin in relation to whether or not a Fatal Accident Inquiry should be held.

"My daughter's death was only another 'statistic', her name was not spelled properly on her file. In reference to her suicide letter it was said that it was offensive but it was not explained in what way."

Other categories of deaths to be reported to Crown Office for Crown Counsel's instructions by way of a summary report include:-

• Where it is considered that criminal proceedings should be taken but the offence is a minor one unrelated to the cause of death
• Where death occurs under medical or dental care and it is considered that it is appropriate to hold a Fatal Accident Inquiry
• Where there has been a request by a person having an interest that a Fatal Accident Inquiry should be held into the circumstances of the death.

In relation to the cases which have to be reported to Crown Office by way of a full precognition as opposed to simply a summary detailed guidance is given as to what the full precognition should contain.

Mention is necessary also of the Fatal Accident and Sudden Deaths Inquiry (Scotland) Act 1976 which provides for the holding of mandatory Fatal Accident Inquiries (in the Sheriff Court) where for example a person has died in prison or in custody or been killed in the course of their employment. Twenty-three persons were killed at work in 2005/06 (thirty three in 2004/05). In 2006 four persons died in Police custody (eight in 2005) and 19 persons died in prison in 2005 (five from natural causes and ten as a result of suicide).

The 1976 Act also provides for discretionary inquiries at the request of the Lord Advocate usually in circumstances which give rise to serious public concern and where it appears to the Lord Advocate to be in the public interest that an inquiry should be held into the circumstances. This discretionary power of the Lord Advocate is discussed in Chapter 7 on road deaths.

In 2005/06 71 Fatal Accident Inquiries were held. In 2004/05 68 were held and in 2003/04 the figure was 55 showing an approximate increase of 30% in that period.

Post Mortem Examination

The Procurator Fiscal is responsible for deciding if a post mortem examination is necessary and appropriate and for directing the level and type of examination subject to advice from a number of others including Police Officers, medical experts and other expert advisers.

The Procurator Fiscal has authority at law to direct that a post mortem be carried out. There is no other person in Scotland with such an authority. We give more detail in Chapter 6.

Until he releases the body the Procurator Fiscal has full jurisdiction over it.

The guidance manual instructs that Procurators Fiscal should send to the nearest relative a general information leaflet headed "Advice for Bereaved Relatives" which is designed to provide basic essential information to families in the immediate period following a sudden death (we return to this topic when we analyse the questionnaires sent to the next of kin). This leaflet recognises that at this stage in bereavement many relatives do not want to receive detailed information but that it is important to provide a contact point so that further information can be sought. The current leaflets are under review and likely to be updated during 2007. A Crown Office Working Group has been established to consider all publications relating to the investigation of death by the Procurator Fiscal.

"I am not a professional and should not be expected to carry the burden of the knowledge of what they told me."

A Victim Information and Advice Service has been created as part of Crown Office and The Procurator Fiscal Service which has three main functions:

1) -To provide information to certain victims, witnesses and bereaved next of kin about the criminal justice process.

2) -To keep victims, witnesses and bereaved next of kin informed about the progress of cases.

3) -Advise on and facilitate referral to other agencies for specialist support and counselling as required.

Certain categories of cases are referred to Victim Information and Advice and these include (updated October 2006).

The next of kin in cases involving deaths:

• Which are reported for consideration of criminal proceedings,
• Where a Fatal Accident Inquiry is to be held,
• Where there will be, or there are likely to be, significant further enquiries,
• Where in all the circumstances it is agreed that referral is appropriate.

Additionally, all cases where the nature of the charge is indicative of solemn proceedings (ie trial by jury as opposed to trial before a judge sitting alone) and there is a Victim of Homicide or a Road Traffic death must be referred to Victim Information and Advice.

"My mother was a person, not just a case number."

The Crown Office Book of Regulations lays down what is expected of Fiscals.

"We felt the gap between … death and contact with the Fiscal seemed a long time given we had no information from anyone."

It is the duty of the Procurator Fiscal to meet the information needs of nearest relatives and other interested parties in co-operation with other agencies.

Victim Information and Advice ( VIA) have a particular part to play in meeting the information needs of nearest relatives in death cases.

VIA is the dedicated service within Crown Office and Procurator Fiscal Service, which provides information on the prosecution investigation and court process, including appeals, in a supportive manner to victims, nearest relatives and some witnesses. The nearest relative in any road death case must be referred to VIA.

" VIA automatically send out letters about court appearances and who to contact."

VIA itself is not a support agency.

VIA's remit covers serious crimes and crime related deaths.

VIA contacts victims, witnesses and nearest relatives after the case is referred. People can choose to opt out of the service.

There is also a protocol for referring relevant people to the Witness Service for pre-trial visits.

VIA produces leaflets on a variety of topics including crime related deaths.

We did receive some criticism of VIA.

"We were happy with what (the Procurator Fiscal Depute) did …. she went to the scene, she saw the witnesses. You should not need to go and look for VIA, they should be knocking on your door …. (the Procurator Fiscal Depute) was great to me."

Such criticism may be not be particularly well merited as the main function of VIA is to provide information, especially about court dates which all agreed happened. VIA is not in itself intended to be a support agency but an information agency.

However, one lady in particular spoke positively of the role one particular VIA Officer played.

"She kept in touch and kept me updated on the case progress …. she was very helpful and gave as much information as she could."

Some people want as much information as is available with nothing left out including information on how decisions are reached.

"You ask us what improvements can be made - let people know every minute detail."

Procurators Fiscal are expected to communicate with the appropriate relative or relatives within 2-3 weeks of the death. A progress report should be sent within 6 weeks of the receipt of the death report. On completion of the investigation but prior to reporting to Crown Office the Fiscal should meet with the appropriate relative or relatives.

"There should be more contact between the Fiscal and the family, a letter every two weeks with an offer to meet."

At the meeting the available options should be discussed and explained. The opinion of the nearest relative on the proposed course of action should be sought and included in the report.

"We wanted someone to listen and not to scoff."

The nearest relative should thereafter be advised of Crown Counsel's instructions and offered a meeting to explain the consequences.

If there are to be no criminal proceedings or they have concluded without a full examination of the facts, if the nearest relative wishes, a meeting with the Fiscal, Reporting Officer or Accident Reconstruction Investigator may be appropriate.

Finally, echoing sentiments expressed elsewhere the view was put that Crown Office and Procurator Fiscal Service should have bereavement officers. We doubt that would be practical but could perhaps form part of in-house training.

"Crown Office and the Procurator Fiscal Service should have a Bereavement Officer, separate from Victim Information and Advice. They should be particularly trained in specific types of cases."

Conclusions

Guidance for staff is comprehensive and easily available on the Department's intranet.

Information booklets could do with updating and the Department has already commenced a review, new editions should be available during 2007.

The Department has recently commenced training on death case handling which we welcome. Feedback from pilots was encouraging and we would support a roll out as soon as possible to relevant staff in the first instance. The further rollout is required as some of our contacts suggest that not everyone follows the policy laid down by the Book of Regulations.

There has been new and updated guidance issued to Fiscals in the summer of 2006.

Bereaved families frequently need a great deal of time to go through their issues and also to have the Procurator Fiscal explain court and other procedure. Dealing with the bereaved can be demanding and emotionally draining. Information may need to be repeated several times but this could avoid or minimise the possibility of misunderstanding.

There has to be awareness that some people do want to be as involved as possible in any decision to be made about the deceased.

"You are powerless, someone has killed someone you know, it is important to get some of the power back and make a decision about their belongings."

Some families would appreciate a debriefing session when the case has concluded. This is a difficult area of work requiring sensitivity and empathy on the part of staff dealing with such areas of work.

"Service was good particularly
e-mail contact as this resulted in a speedy response to questions."

Throughout their investigations Procurators Fiscal are encouraged to consult the Crown Office Diversity Team's guidance on cultural issues (we report on that separately at
Chapter 8).

In conclusion very helpful and detailed advice is available to staff on the investigation of deaths. We obtained staff views which are contained in Chapter 3.