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Annex 9: Inter-related processes
Criminal investigation ( CI)
Lead role: Police
Within Scotland the core functions and jurisdiction of the police are specified by the Police (Scotland) Act 1967 d. This includes a duty to protect life and property and a duty to care and protect the most vulnerable people within society, including children and young people.
The police are very much an independent investigative and reporting agency to the Crown Office and Procurator Fiscal Service and to the Reporter to the Children's Panel ( SCRA). The police have a duty to investigate both crimes/offences and also any unexplained sudden deaths.
Crimes and Offences:-
Should the police receive information, by whatever means, that a crime or offence has been committed, they are duty bound to investigate that occurrence. Principally the role of the police is to establish the following:-
a) Whether or not a crime or offence has been committed;
b) Whether there is sufficient evidence to support a criminal charge;
c) Whether grounds exist for referral to the Reporter to the Children's Panel, under the terms of the Children (Scotland ) Act 1995, Sect 52;
d) Whether there is sufficient evidence to justify the detention and/or arrest of the alleged offender;
and thereafter to,
e) Submit a report to the Procurator Fiscal and / or the Reporter to the Children's Panel.
Where allegations of physical, sexual and emotional abuse are made involving children, the police consider, in collaboration with other agencies the following before initiating the investigation:-
- The immediate safety and well being of the child or other children;
- The need for medical attention, immediate or otherwise;
- The opportunity of access to the victim and to other children by the alleged perpetrator;
- The relationship of the alleged offender to the victim;
- The proximity in time over which the alleged abuse has occurred;
- The need to remove the child or other children from the home, although this will only take place after discussion between the supervisor on duty in both the police and the relevant Social Work Departments; and
- The need to obtain and preserve evidence.
After consideration of the above, which effectively should ascertain the risks and needs of the child, the investigation will begin. In many such cases a Senior Investigating Officer ( SIO) will be appointed to oversee the investigation.
In matters where a serious crime or offence has been committed, the investigation will usually be conducted by specially trained officers of the Criminal Investigation Department, and should the crime involve the abuse of a child, support will be given to these officers by officers from the Family Protection Unit, who are trained in the investigation of such criminality.
Good practice would always suggest that a Family Liaison Officer is appointed to work with and support the child and family and to act as the single point of contact between them and the police.
The evidence of the crime or offence will be gathered in a variety of ways such as the obtaining of statements from witnesses who have knowledge of the events under investigation, the gathering of forensic evidence such as DNA, fingerprints, hairs, fibres etc and the interviewing of those person (s) suspected of being responsible.
Upon conclusion of the investigation the police will prepare a report of the circumstances and this will be submitted to the Procurator Fiscal and/or the Reporter to the Children's Panel. Decisions will also be made as to whether the alleged accused should remain in police custody pending his/her appearance in court, whether they should be released on Undertaking which may specify certain restrictions/provisions or whether they should be released pending report and summons.
Unexplained Sudden Deaths
"Sudden Deaths" are best defined as any death which occurs suddenly, is unexpected and not proceeded by any known illness or disease, which occurred anywhere, either from violence by others, suicide or accident, where the cause of death is unknown or undetermined and where the circumstances give rise to suspicion.
Where the circumstances of the death are known, or where the death was expected due to illness or disease and where there is no cause for suspicion or concern then the attending medical practitioner, on occasions in consultation with colleagues, will grant the necessary death certificate, confirming time, date, place and cause (s) of death which will then allow the relatives to make the necessary arrangements for registration and burial or cremation. This process will not involve either the police or the Procurator Fiscal.
However, in all other such circumstances, where the death has been certified (pronounced life extinct, time, and date) by a qualified medical practitioner and where a death certificate has not been granted as the cause of death is undetermined and/or suspicious, intimation will be forwarded to the Procurator Fiscal, in practice by the medical practitioner and/or the police if they have already been informed.
Upon intimation, the Procurator Fiscal will immediately instruct the police to carry out preliminary investigations into the matter on his/her behalf and to make the necessary reports to the Procurator Fiscal by the next lawful day. Invariably and in most cases the body of the deceased will be taken possession of and the Procurator Fiscal will order a post mortem examination to be carried, the purpose of which is to determine the time, date and exact cause of death. Normally this procedure is carried out after intimation and the receipt of preliminary information by the Procurator Fiscal but not always as the sequence of the events are sometimes dictated by the circumstances of the specific case.
It should also be noted that at this early stage of the investigations, criminal intent, culpability, recklessness, negligence, etc are not what is under consideration. They may already feature or feature later as a result of the police investigations but are not seen as a pre-requisite at this stage. It is the death that is under investigation. Clearly these factors will influence the later decision making processes of each agency.
Post mortem examinations are carried out under the Procurator Fiscal's successful Petition to the Sheriff. Parental and/or relative consent is not necessary, albeit in practice they are informed of this process and their cooperation sought.
Post mortem examinations are normally carried out by a single Pathologist acting on behalf of the Crown. He/she will in conjunction with the information provided to him by the police and/or the Procurator Fiscal, carryout an examination of the body and this should normally determine the cause of death, subject to the need for further testing, toxicology etc. His/her findings will be communicated to the Procurator Fiscal and/or the police and will form the basis for the granting of a death certificate.
In circumstances where the death is considered to be suspicious, the Procurator Fiscal may direct that a two Doctor post mortem examination be carried out for corroboration purposes of the finding. This would be an essential element in the chain of evidence, particularly where criminal investigations and/or proceedings were to be instigated later.
Should the circumstances subsequently become explained and no longer suspicious, the Procurator Fiscal will order the release of the body to the relatives, arrange for the death certificate to be provided, thus allowing registration, burial or cremation.
If the post mortem examinations confirms the death was in fact suspicious, avoidable and in particular at the hand of another (s) then the body may not be released at that time, further investigations and enquiries will be ordered, some of which the Procurator Fiscal may specify and the matter would normally become a criminal investigation. In any case, the Procurator Fiscal will require further information so as to determine his/her course of action and in most cases, the police will be the investigating agency directed to conduct these investigations.
Normally, a Senior Investigating Officer ( SIO) will be appointed to investigate suspicious deaths and specially trained officers would carry out these investigations. These investigations may well identify criminality and also those who may be responsible and in these circumstances the police would follow their well established investigative procedures.
Good practice would always suggest that a Family Liaison Officer is appointed to work with and support the family and to act as the single point of contact between them and the police.
In child death cases, the procedures applied and followed are in fact the same, albeit, the services of a Paediatrician and/or Paediatric Pathologist would be sought. On many occasions, such specialists are not readily available and accessible and in many cases the body of the deceased may well have to be transferred to such centres of excellence.
Once all the investigations have been conducted, the Procurator Fiscal, will make her/her determination as to criminal proceedings, on many occasions, particularly where a death is involved this will be in conjunction with the Crown Office. All such deaths are fully reported to them.
Fatal Accident Inquiry ( FAI)
Procurators Fiscal must investigate all sudden, suspicious, accidental, unexplained and unexpected deaths and in particular all deaths resulting from an accident in the course of employment or occupation, deaths whilst in legal custody and deaths occurring in circumstances 'such as to give rise to serious public concern'. The Lord Advocate has discretion to instruct a FAI where it appears to be in the public interest that an Inquiry should be held into the circumstances of the death. An FAI would not automatically be held in respect of a child death.
The purpose of a FAI is the enlightenment of those legitimately interested in the death, i.e. the relatives and the dependents of the deceased, as to the cause of death; and the enlightenment of the public at large as to whether any reasonable steps could or should have been taken to avoid the death, in order that lessons may be learned. The PF in the area where the death occurred leads the Inquiry in front of a Sheriff, but in a different role from the usual one of prosecutor. The access to and availability of evidence to legitimately interested parties enables those parties to establish negligence or other culpability.
The findings available to a Sheriff at its conclusion are restricted to those directly relating to the circumstances of the death and any actions or systems that caused or contributed to that. The Court has no power to make any finding as to fault or to apportion blame between any persons who might have contributed to the accident. The Sheriff has the power to make recommendations as to steps which ought to be taken to prevent a death occurring in similar circumstances in future.
While there is no compulsion on any person or organisation to take such steps, it would be unusual for a Sheriff's recommendations to be disregarded.
Looked After Child review ( LAC):
This review is triggered by the death of a child who is looked after by the local authority. The purpose is for the local authority to assure itself and others, including Ministers, that it acted promptly and competently in the particular case and identify any necessary improvements. There may be public interest which needs to be taken into account.
This is an internal inquiry, based on guidance to LAs, with submission of as full a report as soon as possible after the death to the Scottish Ministers and which should not be delayed beyond 28 days.
Ministers are empowered to:
- examine the arrangements made for the child's welfare during the time he or she was looked after;
- assess whether action taken by the local authority may have contributed to the child's death;
- identify lessons which need to be drawn to the attention of the authority immediately concerned and/or other authorities or other statutory agencies;
- review legislation, policy, guidance in the light of a particular case or any trends emerging from deaths of children being looked after.
Lead role: local authority & Social Work Inspection Agency.
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