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

1. Purpose

The purpose of this Memorandum of Understanding (‘MoU’/’the Memorandum’) is to set out the roles, responsibilities and co-operation arrangements (to the extent that these apply) between the Foreign, Commonwealth and Development Office (FCDO), the Police Service of Scotland (PS), the Crown Office and Procurator Fiscal Service (COPFS), Death Certification Review Service (DCRS) and Victim Support Scotland (VSS) (‘the Participants’) on matters relating to the processes undertaken and subsequent support provided to those who suffer bereavement abroad as a result of murder/homicide or manslaughter/culpable homicide (‘deaths abroad’).

The Scottish Government has coordinated the drafting of this Memorandum, but does not have a direct role in the provision of support to victims, nor any role in the investigation process.

Following notification of the death, the FCDO is the UK Government department immediately responsible for supporting bereaved families and will provide information about the support available, the procedures usually followed in the country of the death, and next steps. Any investigation into the circumstances of the death rests with the authorities in the country where the death occurred. Depending on the circumstances surrounding the death, not all deaths overseas as a result of murder/homicide or manslaughter/culpable homicide will result in an investigation being carried out in Scotland or the wider UK.

This Memorandum is not legally binding. It instead seeks to support a consistent level of service to bereaved families and promote public confidence in the response to deaths abroad. It seeks to do this by clarifying the responsibilities and duties of participants upon the notification of a death and setting out the responsibilities of each participant and how they coordinate their work with each other. Any differences, disputes or questions arising in respect of this Memorandum or the duties, and provisions contained in it will be handled by communications or meetings between the participants to the extent necessary to bring a reasonable and acceptable resolution.

This document has been marked as Official. All participants will review the document’s classification as part of the biennial review process of this Memorandum. All participants will work in accordance with legal obligations on the future handling and exchanges of information and adhere to the principles of information security and disclosure.

Eligibility and Procedure

This Memorandum will cover any case notified to the FCDO/relevant authorities encompassing the death of a British national who is ordinarily resident in Scotland, and which occurs outside of the United Kingdom and where the death is considered for investigation, by the local authorities, as a potential murder/homicide or manslaughter/culpable homicide. Any death not considered for investigation as a potential murder or culpable homicide will not be covered by this Memorandum. Non-British nationals may also be eligible to receive some support services from some of the participants named in the Memorandum, but these are not captured within the arrangements outlined within this document.

It is acknowledged that a death abroad can result in significant additional difficulties, including obtaining information from authorities and police services abroad, navigating a foreign judicial system, and the repatriation of the victim.

Where a British national ordinarily resident in Scotland dies abroad as a result of murder/homicide or manslaughter/culpable homicide overseas, the investigation is the responsibility of the authorities in the country where the death occurred.

This Memorandum relates only to British nationals who are ordinarily resident in Scotland. A separate Memorandum^[1] applies to England and Wales, outlining how the FCDO, the National Police Chiefs’ Council (NPCC) and the Chief Coroner of England and Wales will co-ordinate delivery of their respective functions and responsibilities in relation to deaths resulting from murder/homicide or manslaughter/culpable homicide of a British national ordinarily resident in England and Wales whilst abroad.

Ordinarily resident

“Ordinarily resident” or “Relevant Person” is defined as an individual whose primary residence is in Scotland (often used interchangeably with “habitually resident”). This is in addition to the requirement that a victim be a British national. There is no statutory definition of ‘ordinarily resident’ in legislation. In addition, terms such as ‘ordinary residence’, ‘main residence’ or ‘habitual residence’ have been used in a variety of other pieces of legislation without a detailed definition^[2], though English courts have utilised ‘[refers] to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration’.

When considering eligibility, the question of residence will be one determined by each of the participating organisations for evaluating their own intervention, support and activities. With regards to an Inquiry into the death, the Lord Advocate and the Crown Office and Procurator Fiscal Service (COPFS), acting independently of Government and all other agencies, will make an assessment of whether a victim is ordinarily resident - based on the information available - before deciding whether to initiate an Inquiry into the cause of death in line with section 6 of the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016^[3].

This assessment of eligibility may consider, amongst other factors, where the victim’s main possessions and residency are, where their family lives, if they are married or in a civil partnership and where they reside or if they live with children and where they go to school, where they are registered for banking purposes or where they are registered with organisations including GPs, insurance and mortgage providers, and where the victim was registered to vote.

This Memorandum does not attempt to provide a rigid definition of eligibility under the auspices of ‘ordinarily resident’ and all questions of eligibility for support will be decided on a case-by-case basis.