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

Although there are many categories of deaths, road deaths stood out as an area of particular concern and we received many contributions from people affected by death on the road. We felt it merited, therefore, a chapter on its own.

"A road death is not a normal death. It is a violent death. The bereaved are shocked and vulnerable. In the overwhelming majority of cases, family have no knowledge of the investigative process and are bewildered by it."

Background Figures

The following statistics and chart are reproduced from the Scottish Executive National Statistics publication Road Accidents Scotland 2005.

There were 286 road deaths in Scotland in 2005. This figure was down 7% on 2004 and was the lowest ever recorded. This is part of a clear steady downward trend since the late 1960s/early 1970s.

There were 17,821 casualties in 2005, which was 3% less than 2004, and the lowest figure for more than 50 years. Nevertheless concern is still high. As this report was being completed 15 people were killed on Scottish roads in one weekend.

"Something has to be done about this; there are too many road deaths."

For those affected by deaths on the road the effect is similar to that of a homicide. These are sudden, unexpected, violent deaths which cause great distress to families and others.

There were 93 homicides in Scotland in 2005-06 (Scottish Executive National Statistics 'Homicide in Scotland'.) This was 44 less than the previous year.

Killed - from 1950

Bearing in mind the road deaths figure of 286 in 2005 compared to the homicide figure of 93, this means that the number of people killed in road incidents was more than three times the number who died as a result of homicide. Given the evidence we have that the effects are much the same the number of people affected is far greater in road deaths than frank homicides. The prosecution has a role to play in trying to reduce these deaths by proper investigation and appropriate prosecution.

Background Law

In legal terms deaths on the road can be as the result of an accident or a criminal act. The major relevant offences are contained in Sections 1, 3 and 3A of the Road Traffic Act 1988 and, to a lesser degree, the common law crime of culpable homicide.

Section 1 of the Road Traffic Act 1988, as amended, is the offence of causing death by dangerous driving.

Dangerous driving is defined as driving which:

• falls far below what would be expected of a competent and careful driver; and
• it would be obvious to a competent and careful driver that driving in such a way would be dangerous.

A person would also be deemed under the Act to be driving dangerously for the purpose of Section 1 if it would be obvious to a competent and careful driver that driving the vehicle in its current state would be dangerous.

Dangerous refers to danger of injury to any person or of serious damage to property.

Published figures ¹⁰ reveal the number of convictions ¹¹ for causing death by dangerous driving are as follows:

In relation to convictions11 for causing death by dangerous driving when under the influence of drink or drugs the figures are:

Section 1 should be contrasted with Section 3 of the Road Traffic Act 1988 as amended. This is the offence of careless driving or more accurately careless and inconsiderate driving. This is committed by driving without due care and attention or without reasonable consideration of other users of the road.

A person would be deemed to be driving carelessly if driving below (as opposed to far below) the standard expected of a competent and careful driver. Further developments in the law in relation to Section 3 are discussed later in this chapter. However, at the time of writing in a case of careless driving (under Section 3) any death which results from such driving cannot as a matter of law be taken into account. Thus if the quality of the driving falls into the careless category the law punishes the quality of the driving not the fatal consequences.

The distinction between dangerous and careless driving is therefore a crucial one and difficult to explain and understand. It is an almost impossible task to make such a judgement completely objective as these decisions are made by human beings and have to take account of all the circumstances of the case. This can be a difficult decision for legal staff to make (and explain to families) especially where the standard of driving is debatable. When is the quality of the driving far below as opposed to just below that of a competent and careful driver? Such cases are reported to Crown Office for instructions on how to proceed and this acts as a second check and also enables a more consistent approach to be taken. However, cases are rarely the same and inevitably opinions may differ.

The requirement to report such cases to Crown Office for instructions means that in all of these very difficult cases at least two persons will have considered the circumstances and appropriate charge. These decisions are not taken lightly.

As stated the distinction between the two charges is of great significance as, until the provisions of the Road Safety Act 2006 come into force (discussed later) only in cases of causing death by dangerous driving, Section 1, can the death be referred to and put to the jury. If the case is prosecuted, due to the manner of driving, as careless driving, a contravention of Section 3, the death is not legally relevant. Section 1, or causing death by dangerous driving, can only be charged when there is evidence that the driving is sufficiently bad to meet the test outlined previously.

There is, therefore, a large gap between Section 1 cases and Section 3 cases (now covered by the provisions of the Road Safety Act 2006 which will create a new offence of causing death by careless or inconsiderate driving which will be discussed in more detail later).

The philosophy on prosecution is that no prosecution can be commenced without there being sufficient, admissible, reliable evidence to prove the charge (Crown Office and Procurator Fiscal Service Prosecution Code). This is not always easy to explain especially to those who have suffered such losses. They quite naturally frequently do focus on the consequences rather than the quality of the driving.

"I was informed by the Procurator Fiscal Service and the Police and Court Officers that it is quite often difficult to prove dangerous driving and the charge is careless driving because it is easier to get a conviction. To me it is terrible to go for the lesser charge instead of the greater, something needs to be done."

It is obvious on looking at actual cases which have come before the courts that the distinction is not an easy one even for lawyers. In the case of prosecutions under Section 1 it falls to the jury to decide the issue.

"To receive a letter saying that the case was a Section 3 and that our daughter's death was not relevant was terrible."

The question of what constitutes dangerous as opposed to careless driving has been considered on many occasions by the courts.

In the case of Aitken v Lees ¹² the Appeal Court quashed the conviction for Section 2 of the Road Traffic Act 1988 (dangerous driving) of Thomas Aitken who overtook a bus at a pedestrian crossing and struck a 5-year-old girl who was hand in hand with her mother on the crossing.

Lord Justice-General Hope said "There are two tests, both of which require to be satisfied and it is only if both of those tests are satisfied that the charge of dangerous driving can held to be proved. Accordingly it is necessary in these cases for the judge of fact to address his mind first to the question whether the driving has fallen far below what would be expected of a competent and careful driver. Then he must ask himself whether it would have been obvious to a competent and careful driver that driving in that way would be dangerous, applying the meaning of "dangerous" which is set out in subsection 3".

This can be contrasted with the more recent case of Angus v Spiers in 2006 ¹³ where two children were crossing at a pedestrian crossing when Ross Angus failed to comply with the red light signal and struck one of the children. The Appeal Court on this occasion refused Mr Angus's appeal against conviction and found:

"The findings are more than sufficient to meet the test laid down in Aitken … the appellant drove across the pedestrian crossing against the red light without concentrating upon that but rather on the traffic lights further ahead. The presence of vehicles already stopped at the crossing and, much more importantly, the fact that he struck the child on the crossing are all material to this consideration. While, of course, it has frequently been said that the consequences of dangerous driving in the terms of injury and the like have to be ignored in the assessment of the driving, the striking of the child bears directly upon the nature of the driving as being part of the commission of the crime. It reflects an element of danger in the driving. In addition, while the speed that was found by the Sheriff to apply at the time was not outwith the limit it can still be categorised as excessive by reason of the fact that the child was struck."

This highlights that in law the fact that a person has died (as opposed to being struck) does not itself provide evidence of the type of driving and highlights the difficulties faced by all in such cases.

Although at the time of writing the new provisions of the Road Safety Act 2006 were not yet in force there was, however, one existing offence involving death in the context of careless driving but only where the driver was under the influence of drink or drugs. This is Section 3A of the Road Traffic Act 1988 as amended and is the offence of causing death by careless driving when under influence of drink or drugs.

In addition to these statutory charges the prosecution can (and sometimes does) make use of common law crimes (as opposed to statutory) relating to causing death.

The common law crime of culpable homicide is difficult to define as it covers a wide variety of situations but can be described as any unlawful killing where either the circumstances or the intent of the killer are not such as to justify a charge of murder. This was previously used prior to the enactment of the original Section 1 provisions and is still a competent charge. It is considered that culpable homicide is a more difficult charge to prove than Section 1 of the Road Traffic Act and that juries are more reluctant to convict of the common law charge.

This is sometimes, however, more in tune with what families feel.

"In my eyes he murdered my son."

We note with interest that in a recent road death the accused have been charged with culpable homicide.

Prosecutions under Sections 1 and 3A of the Road Traffic Act 1988 as amended are currently prosecuted, as a matter of Crown Office policy, in the High Court. This is done to demonstrate the serious view the prosecution takes of such cases and allow for possible maximum sentences. Recent figures tend to show that the High Court does not, at least not routinely, impose "High Court" sentences but the crown policy sends a signal to those affected by such deaths that they are treated very seriously and taken only in the highest court.

The maximum sentence for both Sections 1 and 3A is 14 years imprisonment.

The table below shows average sentence passed.

Persons receiving a custodial sentence in Scottish courts for causing death by dangerous driving ¹⁴, 2000/01 to 2004/05 ¹⁵

"For a lot of families, no matter the sentence, it will not be enough."

Contraventions of Section 3 alone are prosecuted in the Sheriff Summary Court and imprisonment is not competent. This will change given the provisions of the new Road Safety Act 2006.

"It does not matter how you explain to a family about careless driving. They don't see how it can be careless driving and …. the death is only referred to as an injury."

Another area of difficulty for the prosecution is the fact that sentence is a matter for the courts and not the prosecution, a distinction which victims can find hard to understand. There has on occasions been much coverage of the type "What is a life worth" and many judges have been at pains to explain that is NOT what they are deciding, they are deciding the appropriate penalty in all the circumstances of the case. The current practice of prosecuting in the High Court for Section 1 means that the fullest range of sentence is available to the court.

Not surprisingly given the foregoing we have found that one of the biggest areas of dissatisfaction with the Crown Office and Procurator Fiscal Service lies in the prosecution of deaths on the road as contraventions of Section 3 of the Road Traffic Act 1988 as opposed to Section 1 as the death is not legally relevant. This may be about to change as the new provisions come into force.

"We thought it was dangerous driving, that it would be careless driving never crossed our minds."

Nearest relatives cannot understand why the death cannot be taken into account in Section 3, careless driving cases.

"Families cannot understand why there is no offence of causing death by careless driving. We have always argued that there should be causing death by careless driving to cover the innocent victim."

The other particular area which, we found, caused much complaint and grief was the late acceptance of pleas especially where a Section 3 was accepted where Section 1 was the original charge on the indictment.

The Crown Office Prosecution Code previously referred to deals with "Plea Adjustment" and states:-

"The prosecutor has a discretion to accept adjusted pleas where to do so is consistent with the available evidence or otherwise in the public interest. The deciding factor in discontinuing proceedings or in accepting a reduced plea is the prosecutor's assessment of the public interest. Thus, it will not be appropriate to accept a reduced plea for reasons of convenience or where, despite there being sufficient evidence, to do so will distort the court's assessment of the offending behaviour and of the appropriate sentence."

The prosecutor has to have discretion to reduce charges especially where there is a change in circumstances or a loss of evidence. However, we do not feel it is appropriate to do so in such cases without there having been a significant change in the available evidence and accordingly we recommend that as a general principle:

A reduced plea to a Section 1 charge should only ever be accepted where there has been a significant change in circumstances and not without this being first explained to the relatives or other contact person.

To do otherwise is to invite trenchant public criticism. It might be appropriate, given public concern, that such decisions should always be referred to one of the Law Officers.

Changes to the Law

Some of the criticisms levelled at Fiscals are unfair and may be due to the complicated nature of the law. Changes in the law have now been enacted which should address some of these concerns.

"I am disgusted that it has taken organisations like SCID 20 years to get this onto the statute book."

The Road Safety Act of 2006 introduces new offences of causing death by careless or inconsiderate driving and causing death by driving while unlicensed, disqualified or uninsured.

The maximum sentence for causing death by careless driving will be

• 6 months imprisonment in cases heard by a Sheriff alone or
• 5 years imprisonment in cases tried before a jury

The maximum sentence for causing death while unlicensed etc. will be

• 6 months in cases heard by a Sheriff alone and
• 2 years imprisonment in cases tried before a jury.

These provisions are expected to be brought into force in Autumn 2007.

"The new legislation will be very useful and I cannot understand why it hasn't been brought in before now."

These changes in the law should go a long way to meet criticisms levelled at the Procurator Fiscal Service as deaths on the road arising from careless acts can in the future be recognised in the charge and this can be reflected by the court in sentence especially the possibility of imprisonment. It remains to be seen how enthusiastic juries will be to convict of this new statutory charge but the policy is always to prefer the highest charge the evidence will support so it will be interesting to see how the law and practice develops.

Some of our contacts would wish young drivers targeted as a high-risk group and consideration given to increasing the age at which young people can apply for a driving licence. Statistics show this is the most at risk group. This is outwith our remit but is clearly a concern.

"The age of licence holders should be increased (from 17 years) and there should be a limit for the first one or two years for new drivers not to have a powerful car."

We also received suggestions that a Fatal Accident Inquiry should be held in all road traffic deaths. As discussed in Chapter 2 there are some mandatory categories of deaths where an Inquiry has to be held but road deaths (unless in the course of employment) are not one of these. Such inquiries could be held under the discretionary provisions of the 1976 Act. They are not, however, routinely instructed by the Lord Advocate but limited to where there are broader issues to be considered. This is more in keeping with what the Act requires of the Sheriff in making his "determination". There could be practical difficulties in instructing a Fatal Accident Inquiry ( FAI) where families might be split on the course to be adopted, not that unusual a situation.

This question was during our evidence gathering the subject of a petition to the Scottish Parliament requesting that Fatal Accident Inquiries be held in all "careless" driving deaths. This was, however, rejected although there were calls for the families of victims to be kept better informed about proceedings.

We agree that, as an alternative to holding public inquiries, families should be given as much information by the Procurator Fiscal as they need. Current practice would be to do so. It might however, have to be emphasised in Crown Office guidance. Reports to Crown Office should, however, under present guidance include the views of the nearest relatives on the holding of a public inquiry so the point can be considered.

All death investigations, by their very nature are demanding intellectually and emotionally of staff but deaths on the road have added complications. Family and friends often view such deaths as violent ones first and foremost and while people generally may view them as accidental they are not always that.

"A road death is like a murder for the families."

Road deaths are investigated as deaths first and foremost with the investigation moving into that of a criminal one only on the express instructions of Crown Counsel which we think gives an indication of how seriously the Procurator Fiscal Service views its obligations in such investigations.

"We have very little complaint with the local Procurator Fiscal's Office … they kept us in touch, informed."

The Crown Office and Procurator Fiscal Service internal Quality and Practice Review Unit, the predecessor of the Inspectorate, carried out a review of all investigations in road deaths concluded between 1 June 1999 and 31 May 2000.

The Review found no major cause for concern but did make a number of recommendations to enhance the system as it already operated. Changes were made to policy as a result and guidelines issued by the Lord Advocate to the Police.

The Review found no evidence to support the suggestion that prosecutors were accepting reduced pleas not fully justified by the available evidence. This, however, is as has been seen still a concern for some today.

"The review carried out by the Crown Office Quality and Practice Review Unit said there was no evidence of cases being dumbed down."

Two of the issues highlighted by the Quality and Practice Review Unit were, however, still considered issues by some of the families we contacted who had suffered loss as a result of an incident on the road.

Firstly, but not to a major degree, liaison with next of kin and keeping them informed as soon as possible of the circumstances of the road death and keeping them appraised of each procedural step was an issue in the 2000 report and some of our contributors wanted more information and more contact than there was at present.

"It was quite intimidating sitting with the Fiscal and being involved in the legal process."

On occasion a lack of sensitivity could be shown in dealing with relatives.

"Letters from the Fiscal should not have a yellow sticker with "Deaths Unit" on the outside where it is sealed. Call it Unit 4 or Unit D or something."

Secondly, the issue of training for staff in Accident Reconstruction Investigation, legal principles and the practical aspects of handling deaths and bereavement awareness were seen still to be an issue.

"I said please speak about my son. My son was never mentioned. The balance is all wrong, all wrong."

Guidance to Staff

The Book of Regulations, which is the source of policy and practical guidance for Procurators Fiscal, lays down standards that the Service is expected to maintain. The most recent version of the Book of Regulations section on deaths has moved away from using the term road traffic accidents to road traffic collisions as recommended by the Scottish Campaign against Irresponsible Drivers.

An experienced member of staff should deal with all deaths investigations promptly.

It is the duty of the Fiscal to ensure that there are arrangements in place to receive such a death promptly. Contact can be made out of hours with the on-call Fiscal.

Immediately the Police should be instructed to protect the locus, secure any relevant evidence and to carry out any further investigations.

It is the responsibility of the Procurator Fiscal to ensure the adequacy of those enquiries.

We received some critical feedback:

"(At the Annual General Meeting of Scotland's Campaign against Irresponsible Drivers, SCID) we received a talk from a member or the Procurator Fiscal Service on how he would deal with such cases. He told us how things should happen by the book. It was an interesting comparison with our experience."

Where the Procurator Fiscal considers that there is sufficient evidence to instigate proceedings in relation to contraventions of Sections 1, 3 or 3A of the Road Traffic Act the circumstances must be reported to Crown Office for Crown Counsel's instructions.

Such deaths must be expeditiously and thoroughly investigated and managed.

The Police Report should contain the religious and cultural requirements of the nearest relatives with a preliminary view on whether or not a Fatal Accident Inquiry is wanted.

"We asked about a Fatal Accident Inquiry and were told it is at the discretion of the Lord Advocate, we were not asked if we wanted one."

Where there is the possibility of a criminal prosecution or Fatal Accident Inquiry the Procurator Fiscal should arrange a meeting with the Reporting Officer early in the investigation to review the evidence and consider the focus of the investigation and the instruction of expert witnesses.

"A Fatal Accident Inquiry would've dealt with the evidence not heard at the trial - issues like the ambulance taking 16 minutes when it would normally have taken 9."

A report is often obtained from Accident Investigation Officers or Accident Reconstruction Investigators. These officers investigate collisions and prepare a report including details and calculations of speed, position etc. This is a specialist area.

The locus or scene must be preserved but life saving operations must, obviously, take priority.

Area Fiscals should make arrangements with the Police that in cases where a prosecution is a possibility no charges are made until instructed by the Fiscal who will report the matter to Crown Office for instruction.

"Because I was not next of kin he found me irritating and troublesome. He was not used to people asking questions and asking for the rationale."

In the exceptional case where the suspect is in custody the District or Area Fiscal must be contacted to agree the initial charges. If the accused remains in custody the case must be immediately reported to Crown Office for instruction on the charges appropriate for committal for trial.
In our contact with families and friends in road deaths we encountered some criticism of the Police. Criticism was levelled at the level and quality of liaison received and the quality of the investigation.

"The Police did not do their job.
They opened the road, did not take statements, just contact details."

The Procurator Fiscal, particularly in the early stages of an investigation, is very dependent on the quality of the Police investigation.

"(The Police Officer) was saying all the wrong things. He was very insensitive."

Conclusion

While there is a lot of good work going on in Fiscal Offices throughout the country, as seen in our postal survey, deaths on the road remain still a contentious and difficult area. The Department has invested time and money in looking at and developing this area with such work as the updating of policy and guidance in the Book of Regulations and carrying out training on deaths for staff.

"We were happy with the way the Procurator Fiscal's Office dealt with us."

However, our research on liaison with next of kin in deaths shows the difficulty of explaining this area of the law and what the public can and cannot expect to happen. New leaflets (currently being considered) could perhaps specifically deal with this.