Chapter 4 – Criminal Proceedings
103. 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.
104. There were nine cases in our review where there was a substantive criminal investigation followed by an FAI. Only one resulted in a prosecution.
105. Five were investigated by the Health and Safety Division (HSD) including three deaths that arose from the same incident, one was investigated by RTFIU and one by the homicide team. Of the two remaining cases, in one there was an initial investigation by PIRC and in the other there was an initial investigation by HSD prior to it transferring to SFIU.
106. As discussed at paragraph 77, a discretionary FAI was held for the death of three spectators at the Jim Clark Rally in May 2014. A mandatory FAI was held for the other six cases; three related to deaths in employment and three to deaths in custody.
107. Of the mandatory FAI cases investigated by HSD:
- In one a year elapsed prior to the HSE report being received. The case was then re-allocated on two occasions with the FAI eventually taking place two years and eight months later.
- In another there was a 10 month investigation following receipt of the HSE report and a further six months elapsed before the FAI.
- In another, involving extensive investigation into SPS procedures there was a four and a half year delay between the death and the FAI. While there was an initial delay receiving the HSE report, it was compounded by a failure to progress the case from April 2016 to March 2018. The sheriff was critical of the delay in the determination.
108. In the remaining three cases:
- In one the initial PIRC investigation took five months. Thereafter there was a period of 13 months of inactivity before the case was allocated and progressed.
- In one following a seven month investigation by RTFIU, it was transferred back to SFIU. The first notice was lodged just over 10 months later.
- In the case that resulted in a prosecution (see case study below) the accused was convicted of murder and sentenced in November 2014. There was a six month gap before the death investigation was allocated and another year before the first notice was lodged (18 months after the prosecution had concluded). Evidence was provided on 16 days over four months. The sheriff's determination was published 42 months after the death.
109. The FAI legislation provides that the Lord Advocate can exercise discretion not to hold a mandatory FAI, if the circumstances have been sufficiently established during the 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 and to allay public fears as demonstrated in the case study below.
Following a prosecution and conviction for the murder of a prisoner by his cell mate Crown Counsel instructed that an FAI should still be held to consider issues of wider public concern. The focus of the FAI was to explore risk assessments regarding cell sharing that were carried out by the Scottish Prison Service and, in particular, to consider whether it was appropriate and reasonable to co-locate the deceased with his cell mate and the system of recording previous events in a prisoner's record.
The Sheriff found that the death may have been prevented if a bullying marker had been added to the Risks and Conditions record of the cell mate relating to a previous assault and that there was a system defect arising from the lack of adequate guidance on training for SPS staff on the recording of entries within Risks and Conditions records.
While there was evidence that measures had been put in place to remedy the defects found, the Sheriff recommended that SPS commence a proposed review of the system of risks and conditions and give effect to any recommendations arising from that review.
110. In our review, the nine cases with a substantive criminal investigation took on average two years and eight months (734 workdays) compared to one year and eight months (481 workdays) for all cases. Where there is a criminal prosecution before an FAI, it is inevitable that the FAI proceedings will take longer than 12 months to commence. It is also likely that cases where there is a substantive criminal investigation prior to an FAI will take longer to conclude as there are, in effect, two investigations. The over-riding priority is for COPFS to conduct a thorough investigation where criminal proceedings are in contemplation.
Liaison between SFIU and Criminal Investigators
111. Following the conclusion of a criminal trial, if there is to be an FAI, the case is transferred to SFIU. In the thematic report we noted that there was considerable scope for more effective liaison between those involved in the criminal investigation and SFIU. To improve the transition between the criminal investigation and those preparing FAIs, we made the following recommendations:
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.
COPFS should ensure that all operational case related emails are recorded and imported into the case directory.
Recommendations 5 and 6
112. A pro forma document to be completed by the homicide team at the conclusion of their investigation, advising of the circumstances of the death, any Crown Counsel Instructions (CCI), any relevant documentation/discussions and a record of the liaison with the nearest relatives, has been agreed with SFIU. It contains a section to record any CCI on whether there should be an FAI if there are no criminal proceedings. If there is no instruction, it flags up the need for SFIU to seek an early instruction.
113. Similar pro forma handover templates are currently being progressed with RTFIU and HSD.
114. In the three discretionary cases in our case review, where there was a substantive criminal inquiry relating to the deaths at the Jim Clark rally, we noted that there was early intimation by Crown Counsel that an inquiry would be held if there were no criminal proceedings.
115. Reminders have been issued to SFIU staff to ensure that all operational emails and documents are entered into the case directory. Given our earlier observations regarding the lack of eF1 forms and other information being imported into the case directory, it appears there is still some way to go before there is a full electronic record in death cases.
Status: In progress