Information for bereaved families and friends following murder or culpable homicide

Section 3: The criminal investigation

3.1 The police investigation

The police will investigate the death. They do this on behalf of the Procurator Fiscal (PF) and report their findings to the PF. The investigation will be run by a Senior Investigating Officer (SIO), who is normally a senior detective. The SIO has been trained in the investigation of murder and culpable homicide cases and will be responsible for a team of officers who will carry out the enquiries needed. The SIO will appoint a Family Liaison Officer (FLO) to be the link between the investigation team and the family. The SIO will normally contact the family through the FLO (see section 1.2).

The police work closely with the PF throughout the investigation. The PF undertakes their own investigation of the evidence and has final responsibility for the overall investigation of the death (see sections 3.5 and 3.6).

3.2 Gathering evidence

The police role is mainly to gather information. At times, especially in the first few hours of the investigation, this may seem insensitive. But the more information the police can get, the more they will understand the circumstances of the death. There may also be information that they cannot share with you (such as details of injuries) - this is because it would harm any future prosecution.

As explained in section 2.4, the police may need to keep some personal items belonging to the deceased person or seal your home while gathering evidence.

The FLO will ask you in detail about the person. You may find this difficult as it may feel like the FLO is prying into your private life. This is not the intention - it is just that the more the police know about your loved one, the more chance they will have of identifying who committed the crime and collecting the evidence they need.

Any statement you give to the police may be given to the defence solicitor in the first few weeks after the case is reported to the Procurator Fiscal. Defence solicitors are not allowed to pass witness statements or contact details to the accused. If you have any concerns about the information that may have been passed to the defence, let VIA know.

3.3 How long will the police investigation take?

There is no set timescale for completion of a police investigation. In some cases, the police will make an arrest very quickly and be able to submit a report to the Procurator Fiscal (PF) immediately. In other cases, they might suspect who is responsible for the death but be unable to find them. Or the police investigation itself may take time.

If there is not enough evidence to charge a suspect, a senior officer will be appointed to review the investigation. That officer may contact you directly. If an investigation is then closed, it will be reviewed regularly and any new information will be acted upon.

3.4 The police report

The police report is a confidential document that summarises the information from witnesses, any interviews with suspects, any available reports from specialists and other relevant material. This evidence is used by the PF to decide whether there is enough evidence to begin a prosecution.

3.5 The role of the Procurator Fiscal (PF)

Procurators Fiscal are the public officials who investigate all sudden and suspicious deaths. They are lawyers and are employed by the Crown Office and Procurator Fiscal Service (COPFS).

PFs are responsible for:

• instructing a post mortem examination (see section 2.5)
• investigating the circumstances of a death
• instructing investigations to try to find out the cause of a death
• considering whether preliminary criminal proceedings are required and are supported by the available evidence (see section 3.6) and
• reporting the case to Crown Counsel for a decision about criminal proceedings.

The PF considers the report compiled by the police into the circumstances of a death and makes decisions on preliminary charges (see section 3.6). After the accused has appeared in court on preliminary charges (see section 4.2), the PF may interview witnesses and collect other evidence (this stage is called precognition and is explained more fully in section 3.8).

The PF will then send a report to a team of senior prosecutors (called Crown Counsel). It is Crown Counsel who decide whether a criminal prosecution should take place, against whom and on what charges. In some cases, the decision will be that no proceedings will take place.

You can ask to talk to the PF at any time and they will try to answer your questions, though they will not be able to discuss the evidence with you. The FLO or VIA Officer can tell you how to contact the PF, and you can keep their contact details in section 1.1.

The Crown Office and Procurator Fiscal Service (COPFS) produces leaflets about the work of the Procurator Fiscal, including the investigation of criminal deaths. These are available from the Procurator Fiscal or from COPFS' website www.crownoffice.gov.uk.

3.6 Deciding on charges

If a police investigation indicates that the conduct of one or more people amounted to a crime, the PF will decide whether they should be brought to court to answer any preliminary charge(s). Someone who is being charged with an offence is referred to as "the accused".

Sometimes, the PF may need the police to carry out further investigations before reaching a decision about prosecution.

If the PF brings an initial charge of murder against the accused, they must then make a recommendation to Crown Counsel about whether the charge should remain as murder. Crown Counsel will consider the evidence and decide what the charge should be. They also consider whether or not the PF should oppose bail for the accused.

You will be invited to a meeting with representatives of the police and Crown Office and Procurator Fiscal Service - usually the FLO, SIO and VIA Officer. At this meeting, the police will explain the progress of the investigation to date and VIA will explain what will happen next. You will be able to ask questions or raise any concerns you may have but it is not possible to discuss the evidence.

The PF may want to interview any family members who may have witnessed something relevant to the investigation.

Hate Crime

A crime committed because the accused is motivated by prejudice against a particular race, religion, sexual orientation, transgender identity or disability is described as a crime aggravated by prejudice or a hate crime. If you feel that the death of your loved one involved such a crime, then please tell the police and the Procurator Fiscal of this. All crimes of prejudice are intolerable and where there is sufficient evidence in law of such prejudice this will be included in any charges an accused person will face.

3.7 Definitions of murder and culpable homicide

Murder is committed when the accused has acted with the intention of killing the victim or where the accused's conduct has been "wickedly reckless".

Culpable homicide is committed where the accused has caused loss of life through wrongful conduct, but where there was no intention to kill or "wicked recklessness". This may also be considered where in law the accused is found to be of "diminished responsibility" because of some mental illness, or where there was provocation.

"Wicked recklessness" will be inferred from the circumstances of the accused's actions. Normally this will be based on the severity of the injuries and other factors about the nature of the assault.

In some cases, an accused may be charged initially with murder but Crown Counsel may decide that the evidence does not support a murder charge. The accused will then be tried on a charge of culpable homicide or, possibly another charge such as assault. Changes like this can also happen during the trial.

VIA will advise you about any changes like this. Where possible, you will be given the reasons for a change to the original charge. It may not always be possible to give you a full explanation at the time the decision is made - in some cases this is because it might cause problems in bringing the case to trial.

3.8 Preliminary charges

If an accused is charged with an offence in relation to the death, they will appear in court while investigations to gather evidence continue.

When an accused appears in court on preliminary charges, they will be given a document (called a petition) that tells them what initial charge they will face. They will then be fully committed for trial. More information about these court hearings is given in section 4.2.

The accused may be given bail or kept in custody (prison or a Young Offender's Institution) between court hearings. This is explained in more detail in sections 4.2 and 4.3.

At that stage, the PF will begin their detailed investigation (called the precognition investigation).

The purpose of precognition is for the PF to examine all the available evidence and obtain any more evidence that is needed. This could include forensic or medical evidence which supports the case.

The PF may interview witnesses, and ensure that all the investigation that needs to be done is completed. You may be interviewed so that a precognition (statement) can be taken from you.

You may also be interviewed by the defence lawyer or someone on their behalf (a precognition agent). If there is more than one accused, you may have more than one interview. Defence lawyers or agents should always contact you in advance and offer you a suitable time and place for taking your precognition. This is an essential part of proceedings and you should co-operate with any requests. More information about this is given in section 4.6.

3.9 Decision on whether to prosecute

The PF makes recommendations to Crown Counsel about whether there should be criminal charges and what they should be.

Before making these recommendations, the PF will have considered the law, the evidence and whether it is in the public interest to prosecute. This means the crime has to be recognised in Scots Law. There also has to be enough reliable and credible evidence that the crime was committed and that the accused was responsible.

VIA officer (see section 1.3) will inform you about what happens to the case. They will automatically give you this information by letter - you do not need to ask for it. Contact them if you have any concerns about the case or want explanations about any part of the procedure. VIA will also give you dates for court hearings (including any trial dates). These can sometimes change (see section 4.8) but VIA staff will do their best to keep you informed.

Sometimes a decision to prosecute may be delayed until more evidence is available.

If a decision is taken not to prosecute, or the prosecution is dropped at a later stage, this is usually the end of the criminal case. If this happens, the Procurator Fiscal will contact you to let you know that the case is not going ahead. They should offer you a meeting to explain the reasons for this.

It is possible in some circumstances to take the case to a civil court (see section 4.19). This is difficult and can be costly. You should seek advice from a solicitor about this.

Legal definitions

Rape and sexual assault are crimes of violence. For full details of how the law defines these see pages 116-117.

All sexual offences are frightening, intimidating and can be violent.

Some people may experience more than one form of sexual violence in the course of their lives. This can affect how they react to and cope with separate incidents.

Legal definition of consent

The law defines consent as 'free agreement'.

For rape and sexual assault to be proved in court, it has to be shown that the assault took place without the consent (agreement) of the victim that the person responsible did not reasonably believe that the victim consented. Someone can withdraw consent at any stage even if they consented at first.

The circumstances of what happened may mean that a victim is incapable of 'free agreement'. Examples would be if the victim was asleep or unconscious; agreed or submitted because the attacker harmed or threatened to harm them; or the attacker would not let them go. The law also protects people with limited or no capacity to consent because of their young age or a mental disorder.

In many situations, a person might not struggle against an attacker through fear or shock or might be asleep or unconscious at the time. It may be possible to prove in court that the person responsible knew that the victim did not consent or did not reasonably believe the victim consented even when there was no other physical violence or force.

A man can be found guilty of raping his wife, even if they were living together at the time of the offence, if it can be proved that the intercourse took place without her consent.

It can sometimes be difficult to prove in court that the victim did not consent. By law, there must be two independent pieces of evidence to corroborate (prove) that the victim did not consent and that the attacker knew or disregarded this.

Because such crimes often take place in private, it can be difficult to get enough evidence to prove to a court that the crime took place, that the victim did not consent and that the attacker knew or disregarded this.