Bereavement abroad through homicide or culpable homicide - support: memorandum of understanding

9. COPFS

COPFS is Scotland’s public prosecution service and death investigation authority. COPFS receives reports about crimes from Police Scotland and other reporting agencies and then decide what action to take, including whether to prosecute someone. COPFS also investigates all sudden, suspicious, accidental and unexplained deaths.

The Lord Advocate is head of the systems of criminal prosecution and investigation of deaths in Scotland. Procurators Fiscal (PFs) are solicitors subject in the discharge of their duties to the instructions of the Lord Advocate.

The Death Certification Review Service (DCRS) and COPFS

Healthcare Improvement Scotland (HIS) is required, in accordance with the Certification of Death (Scotland) Act 2011, to verify a foreign death certificate where a person died outwith the United Kingdom, and burial or cremation is planned to take place in Scotland. Further detail is provided at Section 10.

When the body of the person who has died abroad is repatriated to Scotland, the repatriation is reported to the DCRS – who fulfil this HIS function.

Where the person to be repatriated was ordinarily resident in Scotland and it appears to DCRS that the death has occurred in suspicious circumstances or circumstances which would otherwise be reportable to the PF by a doctor if the death occurred within Scotland, DCRS will intimate the circumstances to the Scottish Fatalities Investigation Unit (SFIU) of COPFS. DCRS will take no further action until SFIU confirm that burial or cremation can proceed.

Scottish Fatalities Investigation Unit (SFIU)

SFIU will discuss the circumstances surrounding the death with DCRS and consider whether there is any basis for further investigations into the circumstances surrounding the death with a view to the possibility of criminal proceedings or the holding of a FAI. Where it is determined that further investigation is appropriate, COPFS will take control of the body and may instruct a post-mortem examination in Scotland and may do so even if an examination has already taken place in the country where the death occurred. In deciding whether or not a post mortem should be instructed, the PF may consult with the pathologist instructed by the Crown. If a post mortem examination is to be instructed by the PF or enquiries made prior to that decision, COPFS will make early contact with Police Scotland to assist with any enquiries, establish contact with the nearest relatives, and assist with the post mortem examination. Where an examination is instructed, COPFS will ask Police Scotland to advise the nearest relatives when that is scheduled to take place. Once the examination has taken place, in the majority of cases the PF will authorise release of the body to the family. On rare occasions, the body may require to be retained until, for example, further examinations require to be done or there is sufficient legal confirmation of identification and where that is the case the family will be immediately informed.

Where enquiries into the circumstances surrounding the death are to be commenced in Scotland, updates to the nearest relatives will initially be provided by Police Scotland. Police Scotland will discuss with the family how often and in what format updates are to be provided. Nearest relatives should be aware that it can on occasions take some time to obtain information from foreign authorities and COPFS does not have the power to compel a foreign authority to share information in relation to a death investigation.

If the outcome of those further enquiries is that further investigation is required, responsibility for providing updates to the family will transfer from Police Scotland to a dedicated COPFS Victim Information and Advice (VIA) Officer. A handover between Police Scotland and VIA will take place at that point. The Family Liaison Charter details the standards for the communication that COPFS will have with bereaved families.

The family will be kept updated with the progress of the investigation. In certain circumstances, SFIU may seek instructions from Crown Counsel, senior lawyers who make decisions in the most serious of cases, as to whether a Fatal Accident Inquiry should be held. The views of the family will be sought and taken into account as part of the decision-making process, although the decision is for the Crown alone to take.

Fatal Accident Inquiries (FAIs) into deaths abroad

Since June 2017, in accordance with Section 6 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016 (the 2016 Act), the Lord Advocate has the discretion to direct that a FAI be held into the death of a person who was ordinarily resident in Scotland at time of their death but who has died outwith the United Kingdom, where the death was sudden, suspicious or unexplained, or occurred in circumstances giving rise to serious public concern. The Lord Advocate may not however order such an inquiry unless satisfied that the circumstances have not been sufficiently established in the course of the investigation conducted in the jurisdiction where the death occurred, and where the Lord Advocate considers that there is a real prospect of establishing the circumstances in an FAI in Scotland. The Lord Advocate must also decide that it is in the public interest for an Inquiry to be held into the circumstances of the death. The Act accordingly presupposes, at least in the ordinary course of things that the relevant foreign authorities should, in the first instance, be allowed to conduct their own inquiries. Information about those inquiries would ordinarily be sought by Police Scotland through the FCDO and relevant information passed onto COPFS.

An FAI is a court hearing to establish what happened to cause a sudden, unexplained or suspicious death. The purpose of an FAI is to establish what happened and prevent future deaths from happening in similar circumstances. It is not the purpose of the FAI to establish liability. If liability arises from the death, then a civil case is the forum in which such matters are to be examined.

An FAI is presided over by a Sheriff and may take place in a Sheriff Court or other designated court building or may be held online. The nearest relative of the deceased is entitled to be an interested party and may be represented at the Inquiry. Depending on the circumstances surrounding the deaths, others may apply to the Sheriff seeking to join the Inquiry as interested parties. Witnesses may be cited to give evidence and uncontroversial evidence may be agreed by all parties to the FAI.

The fact that a witness gives evidence at an FAI does not prevent criminal proceedings being taken against them, but they are not required to answer a question which may show that they are guilty of an offence.

As soon as possible after the conclusion of the evidence and submissions in an FAI, the Sheriff will issue a determination setting out their findings in relation to the following:

(a) when and where the death occurred;

(b) when and where any accident resulting in the death occurred;

(c) the cause or causes of the death;

(d) the cause or causes of any accident resulting in the death;

(e) any precautions which—

(i) could reasonably have been taken; and

(ii) had they been taken, might realistically have resulted in the death, or any accident resulting in the death, being avoided;

(f) any defects in any system of working which contributed to the death or any accident resulting in the death; and

(g) any other facts which are relevant to the circumstances of the death.

The Sheriff may also make recommendations, which may (but need not) be addressed to a participant to the Inquiry or a body or officeholder appearing to the Sheriff to have an interest in the prevention of deaths in similar circumstances, in relation to:

(a) the taking of reasonable precautions;

(b) the making of improvements to any system of working;

(c) the introduction of a system of working; and

(d) the taking of any other steps which might realistically prevent other deaths in similar circumstances.

The Sheriff’s Determination cannot be used in evidence and may not be founded on in any judicial proceedings of any nature.

COPFS’ role in respect of Homicides abroad

Ordinarily, the Scottish courts have jurisdiction only over crimes which have taken place in Scotland. A homicide which occurs abroad would only be subject to the jurisdiction of the Scottish courts if part of the offence took place in Scotland (even though the death occurred elsewhere) or if the death fell into one of a small number of categories where the Scottish courts may take jurisdiction.

Section 11 of the Criminal Procedure (Scotland) Act 1995 provides that any person who is a United Kingdom national or is habitually resident in Scotland who, in a country outside the United Kingdom, does any act or makes any omission which if done or made in Scotland would constitute the crime of murder or of culpable homicide shall be guilty of the same crime and subject to the same punishment as if the act or omission had been done or made in Scotland.

Primacy of investigation, even when there is concurrent jurisdiction, lies with where the murder or homicide took place. There would also be potential jurisdiction in other parts of the UK if the suspect is British, in which case agreement requires to be reached with the prosecution authorities who have jurisdiction as to who should investigate and prosecute. That decision would not always be based on residency of the victim or nearest relative. In a significant number of deaths abroad, there is an obligation in that country in terms of Article 2 of the European Convention of Human Rights (ECHR)for there to be a full investigation there. The situations where a criminal investigation and prosecution will take place in Scotland in relation to a homicide committed outside of the UK will therefore be limited.

In situations where a death overseas could be subject to the jurisdiction of the Scottish courts, discussions would be required to take place between COPFS and the foreign prosecuting authorities with a view to determining which jurisdiction should take primacy. Where an investigation into a potential homicide is to take place in Scotland, it will be led by the National High Court Homicide Team of COPFS.

It can be difficult to obtain information from the respective foreign jurisdiction about the circumstances of the death or any investigation that is or has been conducted there. COPFS has a dedicated International Cooperation Unit (ICU) which may assist with the exchange of information between foreign authorities where they relate to the investigation of crime.

Information that may be requested from the foreign authority includes:

• Death Certificate;
• Post Mortem Report (including photographs if taken);
• Toxicology reports (if samples taken);
• Any medical reports;
• Any photographs, plans or drawings of the scene;
• Any witness statements; or
• Available Police Reports.