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Information for bereaved families and friends following murder or culpable homicide

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Information for Bereaved Families and Friends Following Murder or Culpable Homicide

Section 3 The criminal investigation

3.1 The police investigation
3.2 Gathering evidence
3.3 How long will the police investigation take?
3.4 The police report
3.5 The role of the Procurator Fiscal
3.6 Deciding on charges
3.7 Definition of murder and culpable homicide
3.8 After a decision to prosecute is made

3.1. The police investigation

The police force in whose area a suspicious death occurs will investigate. 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 primarily one of gathering 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 not personal but because it would harm any future prosecution.

As explained in section 2.4 above, the police may need to retain 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.

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 qualified lawyers and are employed by the Crown Office and Procurator Fiscal Service (COPFS).

PFs are responsible for:

  • instructing a post mortem ( 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 into the circumstances of a death compiled by the police 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 will interview witnesses and collect other evidence (this stage is called precognition and is explained more fully at 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. Your 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 someone, or several 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 undertake 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.

The PF will make contact with family members identified by the FLO and will usually write inviting the family representative(s) to meet them. This will normally happen before any report is sent to Crown Counsel. The PF will outline what is involved in the precognition process and discuss any questions or concerns. Your VIA Officer will usually be present at these meetings. You may find it helpful to speak to them at this time.

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

3.7 Definition 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 After a decision to prosecute is made

If an accused is to be prosecuted, they will be given a formal document called a petition that tells them what initial charge they will face. They will then appear in court in private ( see section 4.2 for more details). At that stage, the PF will begin their detailed investigation (called the precognition).

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

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.

The VIA Officer ( see section 1.3) will inform you about what happens to the case. VIA will automatically provide you with this information by letter - you do not need to ask for it. If you have any concerns about the case or want explanations about any part of the procedure, you should contact your VIA Officer. They will also give you trial dates but these may change ( see section 4.8).

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. 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 legal advice from a solicitor about this.

You may also be interviewed (precognosced) 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. More information about this is given in section 4.6.