Part 2: Domestic Homicide and Suicide Reviews
Reviewable events
Section 12 – Domestic homicide or suicide review
140.This section defines the concept of a “domestic homicide or suicide review”, which is what Part 2 of the Act is concerned with. In brief, the concept is the establishment of a review mechanism for reviewing certain deaths arising from abusive behaviour within relationships, with a view to learning lessons. The review is not about attributing liability to anyone but rather is about working with relevant agencies (whether statutory or voluntary) where either the victim or the perpetrator came into contact with them, in order to learn any wider systemic lessons. This can also include working with agencies where there was an absence of contact with the victim or perpetrator.
141.Subsection (1) of this section provides that the term “
142.Subsection (2) then sets out the definitions of “person A” and “person B” which are used for the purposes of this section. This is necessary because a particular relationship needs to exist between two people in order for the review model to apply.
143.For the purposes of this section, person A is a person who has, or appears to have, behaved in an abusive manner towards person B. To use more everyday language, person A is therefore the “perpetrator” of the abusive behaviour (though it is accepted that there may be some rarer cases where both parties in a relationship behave in an abusive manner). The person who is subjected to the abusive behaviour (i.e. person B) needs to be, at the time of the behaviour, one of the following—
the partner or ex-partner of “the perpetrator”,
the child of “the perpetrator”,
the child of the partner or ex-partner of “the perpetrator”,
a young person living in the same household as “the perpetrator”, or in the same household as “the perpetrator’s” partner or ex-partner.
144.A number of the terms used here are defined in subsection (7). Specifically—
Abusive behaviour: this term has the same meaning as it does in the Domestic Abuse (Protection) (Scotland) Act 2021 (though the categories of relationship where abusive behaviour is relevant will differ between the two pieces of legislation). This means that it covers behaviour where a reasonable person would consider the behaviour likely to cause the recipient to suffer physical or psychological harm (which includes fear, alarm and distress). Behaviour of any kind is covered, including words and failures to act, and can be directed at a person even if it is carried out by way of conduct towards property or through a third party. Behaviour can consist of a course of conduct or a single incident. A single incident can be the death in itself.
Partner: a person is someone’s partner if they are spouses or civil partners, or if they are in an intimate personal relationship. The term ex-partner is to be construed accordingly. There is no requirement that the parties need to be living together to be partners.
Child: someone is considered to be another person’s child if that person accepts them as their child, or previously accepted them as their child (prior to the abusive behaviour) even if they are no longer so accepted. In particular—
The nature of the relationship is what matters, so it does not matter whether the child lives under the same roof as the person carrying out abusive behaviour (or under the same roof as the perpetrator’s partner or ex-partner). The child could be an adult living entirely independently.
Age is irrelevant, as the term “child” is used exclusively in this Part to denote a parent/child relationship. Although the term “child” is specifically defined in some Acts as meaning a person under a particular age, there is no rule that means that this applies uniformly across the statute book and it does not apply here. The term “child of” or “person A’s child” is therefore left to take its ordinary meaning as signifying someone’s son or daughter (or non-binary child).
A step-child may be covered as a person’s own child depending on the nature of the relationship in a particular case, but if the step-child is not covered directly as the child of “the perpetrator” then they would be covered anyway by reason of being the child of that person’s current or former partner.
Someone who is living with the “perpetrator” or with their partner/ex-partner but who is not accepted by them as their child (for example, a foster child, or a niece or nephew, who is not accepted as the person’s own child) may, depending on their age, be covered instead by reason of being a young person living in the same household.
Young person: the age cut-off for a young-person depends on whether or not that person has at any point been in care (a “looked after” child). If so, those under 26 are covered, but otherwise it means those under 18. The term is used to cover any minor, so as to deliberately avoid “child” being used in this Part to mean a person under a certain age. This is done to avoid any confusion given that this Part talks about a person’s child and this means a parental/child relationship regardless of age.
145.Subsection (3) defines what a “domestic abuse death” is for the purposes of the review model. What is covered depends on the nature of the relationship between person A and person B – i.e. whether they were (or appear to have been) partners or ex-partners, or whether the relationship is one of the other scenarios which is covered (that is, being the child of person A, or of person A’s partner or ex-partner, or a young person living in the same household as person A or person A’s partner or ex-partner).
146.In relation to a case where persons A and B were or appear to have been partners or ex-partners, there are three things covered by the definition of a domestic abuse death—
The first scenario which is covered is one where the person who is given the label of “person B” has died or may have died (otherwise than by suicide) as a result of “
the perpetrator’s ” (i.e. person A’s) abusive behaviour.The second scenario which is covered is one where the person who is given the label of “person B” has died by suicide and it is or appears to be the case that “
the perpetrator’s ” (i.e. person A’s) abusive behaviour was a contributing factor. This would therefore cover suicides which are connected to abusive behaviour (for example, an individual who felt driven to suicide by an abusive partner or ex-partner, or by the mental health problems brought on by the behaviour of an abusive partner or ex-partner).The third scenario which is covered is one where the person who is given the label of “person B” has killed the person who carried out the abusive behaviour (i.e. person A). Essentially, this covers what are sometimes known as “violent resistance” killings.
147.In relation to a case where persons A and B were not partners/ex-partners, there is one scenario covered by the definition of a domestic abuse death. Both elements of this must be satisfied:
It must be (or appear to be) the case that person B has or may have died (otherwise than by suicide) as a result of “
the perpetrator’s ” (i.e. person A’s) abusive behaviour.It must also be (or appear to be) the case that at some point prior to the behaviour which resulted in the death, there was or appears to have been abusive behaviour between person A and any partner or ex-partner. It does not matter who the abusive person was in the relationship – all that matters is that there was abuse. The person with whom there was an abusive relationship could be related to person B (for example, the deceased child’s mother) or it could be someone entirely unrelated.
148.Subsection (4) qualifies subsection (3) by providing that where the death in question is a case of a young person who was subjected to abusive behaviour while living in the same household as the “perpetrator” or their partner/ex-partner, the death is a “domestic abuse death” only if the person was a young person at the time of their death. So, for example, if a young person was subjected to abusive behaviour which caused them to be in a coma and then, some time later, died, the death would be a domestic abuse death only if the person was still a young person at the point of their death.
149.Subsection (5) defines the other category of death which falls within the review model, which is where there is the “connected death of a young person”. In order for subsection (4) to apply, the young person has to have been killed as a result of an incident which also resulted in a domestic abuse death, or as a result of “the perpetrator’s” abusive behaviour of person B which, had person B died, would have been a domestic abuse death. The former would cover, for example, a scenario where an abusive individual stabs to death their spouse, their own child and an unrelated child who happens to be present. The latter of these means that even if the intended victim of the attack (e.g. in the example above, the person’s spouse and own child) survives, the young person’s death is still a reviewable death.
150.The young person does not have to have any particular type of relationship to the parties who were in an abusive relationship. Examples which might be covered here would include—
a child who was on playdate at a friend’s house when domestic abuse occurred and was killed as a result (for example, due to an inaccurately aimed weapon or a decision by the perpetrator to kill all those present),
a young person who is in a park and is killed by a stray bullet which an abusive husband was aiming at his spouse,
a family member who does not fall within the “domestic abuse death category”, such as where an individual kills (or tries to kill) their partner as well as killing their partner’s young sibling.
151.Subsection (6) provides that where a review is being held in respect of a death anyway and the person whose behaviour resulted in (or appears to have resulted in) the death – i.e. “person A” – has died by suicide, the review may also encompass the circumstances of that suicide(2). For example, an abusive husband might kill his wife and then kill himself. In that case, the suicide could be covered by the review of the woman’s death. However, if a man was arrested for abusive behaviour towards his wife and he killed himself rather than face court (without killing his wife or attempting to do so in a way that led to a connected death of a young person), that on its own would not fall within the review model.
152.It should be noted that although this section sets out what deaths fall within the review model, it does not mean that a review will be held in every instance. There is a sift stage at which an assessment is taken as to whether there are lessons to be learned from the death (see the commentary on section 19). There is also a power to modify the breadth of the review model (see the commentary on section 13).
Section 13 – Power to modify matters in relation to reviews
153.This section provides a broad power allowing the Scottish Ministers to, by regulations, make various changes to section 12 in particular. Regulations made under this power can modify an enactment, meaning that they could adjust section 12 directly (meaning that the full definition of a review remains in one place). However, under section 32, regulations under this section are subject to the affirmative procure so they could only be made if the Scottish Parliament first votes to approve them in draft.
154.The power to make changes under this section allows for the following—
The power allows provision to be made changing what it means for the purpose of the review definition for abusive behaviour to “result in” or (in the case of suicide) be a contributing factor to a death. This is most likely to be relevant to deaths of partners/ex-partners by suicide following abusive behaviour, as suicides often are the cause of multiple factors which are complex and difficult to disentangle. Under section 32, it will be possible to use this power to make different provision for different purposes, meaning that bespoke provision could be made in respect of suicide. This could, for example, require there to be certain evidence of causality in cases of suicide, or a certain proximity between the abusive behaviour and the suicide.
The power allows different provision to be made changing what the relationship between two people needs to be in order to give rise to a review. This would, for example, allow deaths arising from so-called “honour killings” or a person’s former partner killing their new partner to be brought into the review model.
The power allows the circumstances which may give rise to a review to be changed, including so as to cover circumstances in which there is no death. This would therefore allow, for example, the review model to eventually be extended to cover near-death incidents or even serious incidents which are a level below that. However, the power is limited to specifying circumstances relating to abusive behaviour, so the review model will always remain about abuse in relationships.
The power allows the name of the review model to be changed in consequence of a change to the substance of the model. For example, if it is extended beyond deaths then the current name would no longer be appropriate, and this power could be exercised in order to remedy that. However, the power is limited to being used in consequence of a change to the substance of the circumstances which can give rise to a review.
The power also allows changes to be made to section 19, which is the sift mechanism. This would allow, for example, any broader criteria introduced in section 12 to be narrowed appropriately using the sift mechanism.
Review infrastructure
Section 14 – Review oversight committee
155.Subsection (1) of this section provides for the creation of a review oversight committee which is to be responsible for securing the carrying out of reviews and overseeing the review process. Under subsection (2), the committee is to comprise a chair, a deputy chair, and such number of other members as the Scottish Ministers determine. Those other members will be appointed by the Scottish Ministers – from among nominations received from nominating bodies listed in subsection (3) as well as from those identified by Ministers themselves.
156.Subsection (3) sets out the nominating bodies. This list may be modified by the Scottish Ministers by regulations under subsection (5) (subject to the negative procedure) but only after they have consulted with the body to which the regulations would relate (see subsection (6)).
157.The intention is that these nominating bodies might in practice come together to provide for joint nominations (for example, a nomination on behalf of all health boards) but no stipulations are made about how the nominating process has to work, so there will be flexibility for the nominating bodies to nominate individuals as they see fit. There is no obligation on Ministers to accept these nominations (beyond the requirement in subsection (2)(c)(i) which essentially requires there to be at least one person nominated by others), but they would need to consider these nominees for appointment.
158.Where the Scottish Ministers are appointing people of their own accord, they are required under subsection (4) to do this in a way which ensures that the committee includes representatives of voluntary organisations which provide services to individuals in Scotland. For example, this might be charities which have specialist expertise in assisting victims of abusive behaviour, or those which specialise in matters such as substance abuse and which have experience and expertise in working with those who have suffered or been responsible for abusive behaviour in connection with that.
Section 15 – Case review panels
159.This section makes provision for the appointment of case review panels, which will be tasked with the carrying out of domestic homicide or suicide reviews. These panels will be appointed on an ad hoc basis as and when required for reviews.
160.Subsection (1) puts the review oversight committee in charge of establishing panels as and when they are required. Subsection (2) requires the Scottish Ministers to maintain a pool of at least three individuals who have been appointed as panel chairs, and who can therefore be called upon when a panel is being established.
161.Under subsection (3) a panel is to comprise a chair (selected from those appointed as panel chairs by Ministers) and such other members as the committee determines. The intention is that this will be a role performed by people who have valuable insights to offer but who will be able to do this alongside their everyday lives and work (e.g. police, COPFS and relevant victims’ organisations).
162.Subsection (4) specifies that an individual cannot be appointed to be a panel member (which would include being the chair of a panel) if the individual is, or within the past 3 years has been, a member of the review oversight committee.
Section 16 – Committee and panels: further provision
163.This section makes further provision about the review oversight committee and case review panels.
164.Subsection (1) introduces the schedule which makes detailed provision about the chair and deputy chair of the committee, about the appointment of a person to fill in for the chair and deputy chair, and about panel chairs.
165.Subsection (2) deals with the ordinary members of the review oversight committee (i.e. those other than the chair, deputy chair and any substitute). It provides that their terms and conditions are to be set by the Scottish Ministers, and allows them to be paid such expenses as the Scottish Ministers determine.
166.Subsection (3) deals with panel members other than panel chairs. It provides that their terms and conditions are to be set by the review oversight committee but these have to be approved by Ministers, and allows them to be paid such expenses as Ministers determine.
Notification of potentially reviewable deaths
Section 17 – Notification of deaths
167.This section deals with the notification of deaths to the review oversight committee, so that they can be considered for review.
168.The chief constable of Police Scotland, the Lord Advocate and the Police Investigations and Review Commissioner (“the PIRC”) are “notifying bodies” for the purpose of this section and, as such, must give written notice to the committee of any death of which they are aware and which they believe to be a reviewable death. When doing so, they must provide the Scottish Ministers with a copy of the notification.
169.The Scottish Ministers also have the power to make a written referral to the committee where they become aware of a death which is, or might be, a reviewable death and they know, from not having received a copy notification, that notice of it has not already been given by a notifying body. This might be relevant where, for example, a Scottish resident dies abroad and so the authority with responsibility for investigating the death and bringing any appropriate criminal proceedings is a foreign authority. It is accepted that the Scottish Ministers may have less information about deaths which they refer under this section, and so the threshold for referral is correspondingly lower. However, if the Scottish Ministers do make a referral, they must provide a copy of it to all notifying bodies. There is no restriction upon how the Scottish Ministers may become aware of a death in order to refer it to the committee – for example, they could become aware of a death abroad through diplomatic channels, or a friend or family member might contact Ministers with information seeking a review.
170.A notification or referral under this section is to include such information as the person making it possesses or controls which they consider likely to be of assistance to the committee for the purpose of its consideration under section 19(1) (i.e. checking that the death is in fact a reviewable one and then, if it is, determining whether a review should be held). Although the committee has information-gathering powers which it may need to exercise in connection with this consideration, this ensures that the committee is at least provided as a starting point with relevant information from the person making the notification or referral. As this information is to form part of the notification or referral, this means that it forms part of what must be copied to the Scottish Ministers or (as the case may be) a notifying body under subsection (1)(b) or (3).
Section 18 – Revocation of notification
171.This section allows for the revocation of the notice or referral that is given to the review oversight committee under section 17. The notification or referral can be revoked by the person who gave it only where the person believes that the death is not a reviewable death (for example, because further information has come to light since the original notification was given, or because the original notice was given in error).
172.A notification or referral can only be revoked up until the point where a decision is made by the review oversight committee under section 19 as to whether the death is a reviewable one. If a decision on that point has already been made then, if the full outcome of the section 19 process is that a review is to be carried out, the means by which the process could be ended would be via the Lord Advocate’s power to order discontinuation of proceedings under section 23.
173.Similar to the original notice, the power of revocation is exercised by the person giving notice in writing to the review oversight committee. However, reasons must be given for the original notice being revoked (i.e. why the death is not thought to be reviewable). As with the original notice, it must be copied to the copy recipient of the original notice.
174.The effect of a revocation notice being received by the committee prior to a decision being made as to the reviewability of the death is that the original notice is to be treated as never having been given. That means that if the committee’s sift stage had begun, it must be brought to an end unless and to the extent that the sift is predicated on another notification or referral which was not revoked. For example, if both the Chief Constable and the PIRC made a notification but one of them then had cause to revoke it, the sift must continue to consider the notification which remains live. The notification will also not count for the purpose of the requirement in section 30 to report on the number of notifications received during the year, as the report is concerned with progress made on notifications which are not revoked.
Sift stage
Section 19 – Determination as to whether to hold a review
175.This section deals with what steps are to be taken by the review oversight committee following receipt of a notification or referral of a death.
176.Under subsection (1), the committee firstly has to satisfy itself that the death is one which is capable of falling within the review model. For example, a death may have been notified based on a misunderstanding of the relationship between two people. The threshold for referral by the Scottish Ministers is also predicated on the understanding that they may not have the full picture and permits referral where they merely believe that a death “may be” a reviewable death, with the intention that the committee will then be able to ingather sufficient information to form its own view.
177.Once the committee is satisfied that the death falls within the scope of the review model, they then have to determine whether a review should be carried out in respect of it. Alternatively, if the committee is unable to reach a unanimous decision and the chair of the committee decides it is appropriate to do so, the question may be referred to the Scottish Ministers for them to decide. There is no requirement though for the committee to reach a unanimous decision when deciding whether a review should take place – if the chair is content not to trigger the referral option then the committee could agree to take a majority decision.
178.Subsection (2) provides that the criteria on which this sift decision (i.e. whether or not to hold a review in respect of a death which has been found to be reviewable) is to be taken is to be based on three things—
The first element is the likelihood of the review identifying lessons to be learned from the death which would improve Scottish practice in the safeguarding of those affected by abusive domestic behaviour or the promotion of the wellbeing of victims of abusive domestic behaviour.
The second element is whether Scottish public authorities or voluntary organisations operating in Scotland were involved, or had the opportunity to be involved, in the circumstances leading up to the death. This recognises that although there may be things authorities or organisations in Scotland could learn from incidents which take place in other jurisdictions, the review model is about looking at “missed opportunities” as well as opportunities taken by authorities or organisations in Scotland in particular cases and learning lessons from those.
The third element is relevant only in cases where the persons referred to as person A and person B were not partners/ex-partners. In such cases, the sift is to consider whether and to what extent there appears to be a connection between the death and abusive behaviour between partners/ex-partners.
179.Subsection (3) then sets out some factors which are to be considered as part of the subsection (2) tests, although other factors which are relevant to the assessment under subsection (2) could also be considered. The factors specified in subsection (3) are—
the extent of the apparent connection between the abusive domestic behaviour and the death (this would be most relevant to either suicides or some connected deaths),
the information which the review will be able to have at its disposal,
the extent of the connection which both the person who has died, and other person(s) involved, have to Scotland (since if, for example, a relationship mostly took place abroad, the opportunities for earlier intervention within Scotland would have been limited).
180.While the legislation therefore sets out certain parameters for the decision-making process, it will be complemented by the guidance referred to in section 31 which will help the committee to determine whether a review ought to be held or not.
181.Subsection (4) then allows the committee to, at the chair’s discretion, seek advice from the Scottish Ministers in relation to its determination as to whether to hold a review. This could, for example, relate to the overall determination or to an individual element which factors into the committee’s decision-making.
182.Subsection (5)(a) requires the chair of the committee to, in cases where the committee is not going to carry out a review, provide Ministers with a summary of the committee’s reasons for reaching that decision. This applies where the committee’s decision is made because it believes the death is not a reviewable one, and also where it determines that, although the death falls within the review model, a review should not be carried out. Subsection (5)(b) then provides the Scottish Ministers with a power to overrule the committee. However, Ministers cannot overrule a determination by the committee that a review is to be carried out.
183.Subsection (6) requires the chair of the committee to, if putting matters to the Scottish Ministers under this section (i.e. seeking advice, or asking Ministers to make the determination), provide such information as the chair holds or controls which they consider is likely to be of assistance to Ministers in providing the requested assistance. This is additional to the power which exists under section 26 to ingather information, and which Ministers could (for example) use if deciding whether to step in and overrule the committee under this section.
Section 20 – Determination as to whether to expand the remit of a review
184.Where the outcome of consideration of a death under section 19 is that a review should be carried out (whether that outcome is reached by the review oversight committee or by the Scottish Ministers), section 20(1) will apply. It requires the review oversight committee, in relevant cases, to determine whether the remit of the review should be expanded to cover certain events following on from the death. The cases which are relevant for this purpose are set out in subsection (2) and are those where the death is one where persons A and B were partners or ex-partners (i.e. the scenario set out in section 12(3)(a)) and either or both of them, at the time of death, had either (a) a child who was a young person or adult at risk, or (b) another young person living in their household. In such cases, it is likely that the young person/adult at risk will have lost an adult or adults who had responsibility for their care – with the loss being either due to the person being killed or the person being imprisoned.
185.Where the review oversight committee opts to expand the remit of a review in a relevant case, subsection (3) sets out what the remit can be expanded to cover. It can be expanded to cover any or all of the following things—
It can be expanded to cover the extent to which the young person/adult at risk was able to provide their views in relation to any decisions made by a public authority following on from the death where that decision relates to matters which directly concern their welfare and where their best interests were a primary consideration. For example, this would not cover matters such as a decision by Social Security Scotland to grant or deny an application for social security assistance (as that is based on fixed criteria, rather than on trying to always do what is best for the person regardless of any other factors), but it would cover matters such as a decision by a local authority as to a foster care placement.
It can be expanded to cover the extent to which the young person/adult at risk has received any support the person reasonably required in order to provide those views. This support would not necessarily need to be provided by the public authority itself and could also be provided by, for example, a charity or another family member. The examination would simply be of whether there was a gap in support being provided.
It can be expanded to cover the extent to which the young person/adult at risk received the support they reasonably needed following on from the death. This would not be limited to the support they need to provide views on decisions concerning them and is about support more generally – which might include, for example, grief counselling. It does not matter whether or not the support is of a type which a public authority would normally provide.
186.Subsection (4) states that where there is more than one young person/adult at risk, the remit of the review can be expanded in respect of any or all of them. For example, the deceased may have had two children – one who is 17 and was already living full-time with their other parent and had very little contact with the deceased, and one who was 12 and living full-time with the deceased. In such a case, the review oversight committee could, for example, opt to expand the remit of the review in respect of the 12 year-old but not consider it necessary to expand it in respect of the 17 year-old.
187.Subsection (5) provides that the expansion of the remit of a review is subject to the Lord Advocate’s consent being granted to the expansion.
188.While this section deals with the initial decision as to whether or not to expand the remit of a review to cover certain matters following the death, the remit can also be expanded (or, for that matter, contracted if it was initially expanded) later on. This is dealt with in section 22(4) and (5) – see paragraphs 198 and 199 of these Notes.
Section 21 – Reconsideration of whether to hold a review
189.Subsection (1) of this section allows for the reconsideration of a decision that a review was not to be carried out in respect of a death. This is permitted where the person who made that decision (i.e. the review oversight committee or, as the case may be, the Scottish Ministers) believes it is appropriate to reconsider the death as a result of becoming aware of relevant information which they did not have at the time of their previous consideration. Subsection (4) clarifies what is meant by referring to the “decision-maker” in respect of the previous consideration: other than where Ministers actually made the previous decision themselves, this means the review oversight committee (even if the committee took advice from Ministers).
190.A reconsideration could therefore take place under subsection (1) where the previous outcome was that the death did not fall within section 12 and was therefore not reviewable, or where, although the death fell within the criteria, a review was nevertheless not thought to be appropriate (for example, because the abusive behaviour was not grounded in partner/ex-partner abuse, or because the link to Scotland was insufficient to allow there to be enough information and learning to be taken from the review).
191.Where a reconsideration takes place, subsection (2)(a) provides that section 19 applies as it applies following notification/referral of a death, subject to one exception. The exception is that if the Scottish Ministers were asked to make the determination then they are to perform the review oversight committee’s functions under section 19(1)(a) and (b)(i) in the reconsideration. This would mean that they would look afresh at whether they considered the death to be a reviewable one and, if so, whether a review ought to be held. If the original decision was made by the review oversight committee, they will be able to take advice from Ministers if they wish or refer the question to Ministers in exactly the same way as they would have been able to originally.
192.Subsection (2)(b) provides that the outcome of the reconsideration is to be treated as being the outcome of consideration of a death under section 19. There are two consequences to this. First, any reference to “
193.Subsection (3) goes on to provide that where a reconsideration is itself reconsidered, references to the “
Conduct of reviews
Section 22 – Carrying out of review
194.This section makes provision about what is to happen where the outcome of consideration of a death under section 19 is that a domestic homicide or suicide review is to be carried out in respect of the death. This therefore applies regardless of whether the decision to hold a review is the determination of the review oversight committee or whether it has come about because the Scottish Ministers have overturned the committee’s decision and directed that a review be held.
195.Subsection (1) requires the committee to appoint a case review panel to carry out the review. The detail of the composition of case review panels is dealt with at sections 15 and 16. The same case review panel could be appointed to carry out more than one review, or different panels could be appointed each time.
196.Subsection (2)(a) further provides that the committee can appoint a panel to carry out a combined review of two or more deaths. This might, for example, be appropriate where the same perpetrator has killed two people in the same incident, or where they have killed two partners in different relationships years apart. It could equally be appropriate for a combined review to be carried out where the perpetrators of abusive behaviour are different but the involvement the victims had with a particular agency was the same. Whether it is appropriate to carry out a combined review will depend on all the facts and circumstances of the particular cases and the extent to which it makes sense to consider the cases together. However, the question of whether a review is a combined one or not should have no bearing on the level of scrutiny applied to each case, and a combined review will still be able to examine different matters (for example, where a man kills his wife and child, there may be child protection elements to consider in relation to the child).
197.Subsection (2)(b) also allows the committee to instruct a panel to carry out its review in conjunction with a review of another type (which could be statutory or non-statutory). Examples of this might include a child protection learning review or an adult support and protection learning review conducted in respect of the death of a vulnerable adult. Another example would be a mental health homicide review into the care and treatment of a homicide perpetrator with a mental disorder.
198.Subsection (3) requires the committee to set the terms of reference for the review and allows these to be modified as the committee considers appropriate. Subsection (4) ensures that where the remit of a review is expanded under section 20, that is recorded in the terms of reference.
199.Subsection (5) allows the terms of reference of a review to be modified so as to set the remit as any remit that would have been permissible under section 20. This means that the remit can be expanded later, if new information comes to light which was not available at the time that the assessment under section 20 was carried out. It also means that the remit can be contracted later if it initially appeared appropriate to expand the remit under section 20 but it later becomes clear that this is not appropriate. However, the Lord Advocate’s consent continues to be required to any expansion of the remit in the same way as it is required under section 20(5) – meaning that it can be expanded to cover events after the death only with the Lord Advocate’s permission.
200.Subsection (6) requires the committee to ensure that the panel makes satisfactory progress in carrying out its review, that it acts in accordance with its terms of reference, and that it suspends, discontinues or resumes its review in line with any notice served on the committee by the Lord Advocate under section 23. Essentially, the committee will have a supervisory role in relation to any case review panels it establishes.
201.Subsection (7) allows the Scottish Ministers to pay expenses to those who participate in reviews. This is aimed at those who come and speak to the panel, as panel members themselves are able to be paid expenses under section 16(3) or the schedule.
Section 23 – Lord Advocate’s power to order suspension or discontinuation of review proceedings
202.This section provides the Lord Advocate with a power to order the suspension or discontinuation of what can be thought of as “review proceedings”. This covers both consideration of a death by the review oversight committee or Ministers (i.e. the sift stage) and, in those cases where the outcome of the sift is that a review is to be held, the actual review itself. Subsection (7) clarifies that for this purpose consideration of a death is to be taken to commence as soon as a notification or referral is received in respect of it, meaning that the power can be exercised even if the review oversight committee has not actually begun to actively review the file with a view to making a sift decision.
203.Under subsection (1), the Lord Advocate can order the temporary suspension of review proceedings for such period as the Lord Advocate considers necessary to allow for the conclusion of any investigation (which would include those by specialist reporting agencies, as well as by the police), or any criminal proceedings or relevant inquiry, which the Lord Advocate considers to be connected. Under subsection (7), a “
204.Under subsection (2), the Lord Advocate can also order the permanent discontinuation of proceedings where it appears to the Lord Advocate to be appropriate to do so in light of any investigation relating to the death, or any criminal proceedings or relevant inquiry. This power could be exercised, for example, where a death was notified to the review oversight committee but further investigations have revealed that the death was in fact unrelated to abusive behaviour. This power will operate in conjunction with the power in section 18 which allows a notification to the review oversight committee to be revoked. As that power can only be exercised up until the point at which it is determined that the death is a reviewable one, if the Lord Advocate later decides that the notice should never have been given, there continues to be a route available under this section for the review process to be stopped.
205.The Lord Advocate’s powers to order the suspension or discontinuation of review proceedings are exercised by the Lord Advocate sending a written notice to that effect to the review oversight committee, setting out the reasons for doing so (see subsection (3)). In some cases it will be the committee itself which has to pause or discontinue its own sift proceedings, but where the case has already been passed to a case review panel for a review, section 22(6)(c) ensures that the committee will convey the need for any necessary action to the panel.
206.Under subsection (4), the Lord Advocate must consult the chair of the review oversight committee before exercising the powers in this section.
207.Under subsection (6), the Lord Advocate must provide a copy of any notice ordering a suspension or discontinuation, or any notice permitting a suspended review to resume, to the Scottish Ministers.
Section 24 – Protocol in relation to interaction with criminal investigations etc.
208.Subsection (1) of this section requires various people or organisations to agree and maintain a protocol in relation to the sift process and the carrying out of reviews. The people or organisations in question are, under subsection (2), the chair of the review oversight committee, the chief constable of Police Scotland, the Lord Advocate, the PIRC, and the Scottish Ministers.
209.Subsections (3) and (4) set out more detail about what the protocol must cover. It must describe the general processes and arrangements which the parties intend to follow in order to prevent (so far as within their power to do so) review proceedings causing prejudice to—
any criminal investigation or any other investigation directed by the Lord Advocate or a procurator fiscal (such as a non-criminal investigation which is carried out by the police at COPFS’s direction prior to a fatal accident inquiry),
any criminal proceedings,
any relevant inquiry (which has the same meaning as it does in section 23 – see paragraph 203 of these Notes).
210.The protocol must also cover when information obtained in connection with review proceedings will be provided by the review oversight committee or a case review panel to the chief constable of Police Scotland or (where applicable) the PIRC. Further, it must cover the circumstances in which a person is not to be interviewed or required to provide information under review proceedings without the prior consent of the chief constable, the PIRC, or the Lord Advocate.
211.Subsection (5) requires the parties to the protocol to keep the protocol under review, and provides that they may agree to revise it at any time.
Section 25 – Duty on designated core participants to co-operate
212.Subsection (1) places a duty on named designated core participants to co-operate in relation to consideration of a death (i.e. the sift stage) and, in cases where the outcome of the sift is that a review is to be held, the actual review itself. This obligation of co-operation requires them to co-operate with the review oversight committee, with a case review panel which is carrying out a review and also with each other.
213.Subsection (2) provides a definition of “co-operation” which clarifies that this includes participating (if asked to do so) in a review, as well as providing such information or assistance as the review oversight committee or the relevant case review panel reasonably considers necessary to allow them to fulfil their functions. Any information or assistance must be provided as soon as reasonably practicable following a request. This duty to provide information under this section is of course subject to the general law, including data protection legislation.
214.Subsection (3) provides that a designated core participant is not required to provide information under this section which they would be entitled to refuse to provide in court proceedings (e.g. legally privileged information). However, this is subject to subsection (4). Subject to some exceptions, the Rehabilitation of Offenders Act 1974 allows a person not to provide information to a court about spent convictions (and equivalents like spent alternatives to prosecution). Because subsection (3) is based on what happens in a court, subsection (3) would therefore on the face of it limit the obligation to disclose information to a review so that information about spent convictions did not have to be provided. The effect of subsection (4) is that if an order made under the 1974 Act allows information about spent convictions to be provided to a domestic homicide or suicide review, that provision will trump the restriction which would otherwise have applied under subsection (3).
215.Subsection (5) makes provision for the interaction of this section with the Lord Advocate’s ability to pause review proceedings. The duty to co-operate ceases to apply in respect of a review during any period where it is paused, but is revived again if the pause ends with the review being recommenced (as opposed to the pause ending with the Lord Advocate ordering discontinuation of the review). No equivalent provision is made in respect of the Lord Advocate’s ability to discontinue review proceedings, as in such a case there would no longer be review proceedings for a designated core participant to be required to co-operate with under subsection (1).
216.Subsection (6) lists the designated core participants which are subject to this duty. The extent to which they are called upon to co-operate in practice will depend on the death under review and the extent of their involvement in matters relevant to it. Under subsection (7), the Scottish Ministers will be able to modify this list through regulations (subject to the negative procedure). However, before any such regulations are made, subsection (8) requires Ministers to consult the public authority or other person to which the regulations would relate.
Section 26 – Provision of information
217.This section allows the Scottish Ministers, the chair of the review oversight committee and the chair of a case review panel (referred to in this section as “
218.Subsection (2) provides that a person is not required to provide information under this section which they would be entitled to refuse to provide in court proceedings (e.g. legally privileged information). However, this is subject to subsection (3). Subject to some exceptions, the Rehabilitation of Offenders Act 1974 allows a person not to provide information to a court about spent convictions (and equivalents like spent alternatives to prosecution). Because subsection (2) is based on what happens in a court, subsection (2) would therefore on the face of it limit the obligation to disclose information to a review so that information about spent convictions did not have to be provided. The effect of subsection (3) is that if an order made under the 1974 Act allows information about spent convictions to be provided to a domestic homicide or suicide review, that provision will trump the restriction which would otherwise have applied under subsection (2).
219.Subsection (4) provides that a notice cannot be given under this section to a person who is already subject to the duty of co-operation (which includes a requirement to provide information when so requested) under section 25. This simply avoids duplication. It is expected that the persons who will be required to provide information under this section are likely to be voluntary sector bodies operating in this field, as they could well have had contact with families where abusive behaviour has been occurring. However, imposing a full co-operation duty on such bodies may be unduly onerous, and so section 25 is intended to be restricted to public authorities and other bodies whose participation is key to the running of the review model. Persons or bodies which are not subject to section 25 (perhaps because they would only hold relevant information in rare cases) could still be required to provide information under this section though.
220.Subsection (5) provides that the where the Lord Advocate orders the suspension of review proceedings, an information notice ceases to be of any effect so far as it relates to the death. However, if the notice related to more than one death, it would continue in effect in relation to the death which is unaffected by the Lord Advocate’s order. Where the suspension ends with the review being revived (as opposed to the Lord Advocate ordering its discontinuation), another notice may be issued reviving the duty to provide information. No equivalent provision is made in respect of cases where the Lord Advocate orders the discontinuation of review proceedings, as in such cases there would no longer be functions under this Part for which the information was required.
Reporting
Section 27 – Reports on case reviews: content and preparation
221.This section makes provision about the report which must, under subsection (1), be prepared by a case review panel at the conclusion of its review. This provision therefore would not apply if a review was discontinued mid-way as a result of the exercise of the Lord Advocate’s power to order discontinuation of a review under section 23(2). While it is for the case review panel as a whole to prepare the report, the intention is not that the report will be “drafted by committee” – it will be for the case review panel chair to draft the report which will be endorsed by the panel as a whole. Should a case review panel chair be unable to draft the report, those providing administrative support will in practice be able to prepare the report for endorsement by the panel.
222.There are certain things which must, under subsection (2), be included in a report, but it is open to the panel to include such other information as it sees fit. The things which must be included are—
a timeline of what the panel considers to be any key events prior to the death,
where persons A and B were partners/ex-partners, a summary of the significant relationships they had at the time of the death, and a summary of any changes in such relationships in the period leading up to the death,
information about any opportunities for intervention which were either missed or taken,
the panel’s conclusions,
its reasons for reaching those conclusions, and
any recommendations it has as a result.
223.What the panel considers to be key events will vary from case to case but these do not have to be something momentous. For example, this could include events which might seem relatively innocuous in themselves but in the context of other evidence take on a greater weight (for example, the first of a series of missed appointments with healthcare or social services after a pattern of regular attendance). The dates of these events will be important in the context of the review because of their role in establishing things such as whether a victim had already been identified as a potential victim of abusive behaviour by the time of a particular incident, or whether there had been a series of events over an extended period which should have been a warning of possible difficulties.
224.If the report is not one that is agreed upon by the panel members unanimously, the points of disagreement must be reasonably reflected (see subsection (3)).
225.The review oversight committee’s general duty under section 22(6) to ensure that any case review panel appointed to carry out a review makes satisfactory progress in doing so will apply to the production of a report just as it applies to the review itself. It will consider whether a report is of satisfactory quality overall, as well as whether the review’s terms of reference have been fulfilled.
226.Once a report is prepared, the chair of the panel has to submit it to the review oversight committee for approval under subsection (4). Subsection (5) then provides for the committee to decide whether modifications are required before approving it. If they are required, the committee will be able to decide whether to make these itself (which may be possible in, for example, the case of minor corrections) or whether to direct the panel chair to resubmit an amended report (for example, because the information that is missing is not within the committee’s knowledge). Where a report is resubmitted, subsection (6) ensures that the same process of approval with or without modifications, or a further direction to make changes, can occur.
227.Subsection (7) provides that the chair of the panel and the chair of the review oversight committee are each entitled to share a draft report (or part of it) with any person with whom they consider it appropriate to share it for the purpose of checking its accuracy. There is no restriction upon the timing of when this is done (other than that the report still has to be in draft) but in practice when material is being shared for this purpose by the chair of the panel then the expectation is that they would normally do so prior to submitting the report to the review oversight committee for approval. However, one exception to this might be where, following submission to the committee, the panel chair is directed to resubmit the report with some changes and the panel chair wishes to fact-check an aspect of the new material before adding it. Subsection (8) makes further provision about any such sharing—
It obliges the person who is deciding whether or not to share the report/extract to take that decision in accordance with the protocol (see section 24 and paragraphs 208 to 211 of these Notes). Any sharing itself must also accord with the protocol. This applies regardless of whether the person taking the decision is a party to the protocol.
It provides that the person sharing the material can redact or anonymise it as appropriate. This goes further than the ability to share a part or parts (i.e. extracts): the changes could include adding in pseudonyms or making some details vaguer rather than simply omitting them. The person sharing the material must also, at the same time, provide the Scottish Ministers with a copy of the material that is shared.
It provides that the person with whom the material is shared may not share it with anyone else and must keep the content confidential, unless and until the information is subsequently published. As such, if an individual within an organisation needed to share it with someone else within their organisation in order to confirm the accuracy of the report, they would need to ask the chair of the panel or committee to share it with that person directly rather than doing so themselves. It should be noted that the term “person” here covers organisations as well as individuals (see schedule 1 of the Interpretation and Legislative Reform (Scotland) Act 2010).
228.Once a report has been approved, the committee must, under subsection (9), provide a copy of it to the Scottish Ministers. Where the report relates to the death of a young person or an adult at risk, the committee must also provide a copy of it to Social Care and Social Work Improvement Scotland.
229.Subsection (10) gives the Scottish Ministers a regulation-making power (subject to the affirmative procedure) to make provision about the resolution of any disputes which arise between the chair of a panel and the review oversight committee in respect of any modifications which the committee proposes to make to a report or any direction it gives requiring resubmission of a report. This mechanism could be used to provide for Ministers themselves to resolve the matter, to provide for someone appointed by Ministers to provide the resolution, or to make provision allowing the parties themselves to resolve the matter.
Section 28 – Reports on case reviews: publication and sharing
230.Following a report being finalised and approved under section 27(5), the committee can also, under subsection (1) of this section, choose to publish a report (or part of it) – but only where consent has been given by the Lord Advocate. However, in every case, the committee has to publish (either in the report if it is published, or separately) such information as it considers appropriate about the recommendations made in the report.
231.Subsection (2) requires the chair of the review oversight committee to take all reasonable steps to ensure that any published reports do not include information which would or might identify specified individuals (either directly, or through information which could reasonably allow “jigsaw identification”). This rule applies regardless of whether the individual concerned has participated in the review process and regardless of whether the individual is living or dead. The individuals whose identities are protected by this rule are—
the person whose death is the subject of the review or who is person A or person B in relation to the death in question (normally the person whose death is being reviewed will be person A or person B, but the person who has died is named separately because this will not be the case where there is the death of a connected young person),
any individual who is or was connected with any of the individuals mentioned immediately above (for example, as a family member, friend or acquaintance),
any individual who was involved in events which were examined by the review (for example, a social worker, doctor or police officer who had an interaction with the victim following an assault).
232.Those who are not therefore covered by the rule above and who could be identified in the report – if that was considered appropriate – would include the panel members who carried out the review and those who gave evidence to the committee but had no personal connection (for example, an unconnected social worker who gave evidence about standard social work protocols).
233.Subsection (3) allows the chair of the review oversight committee and the Scottish Ministers to each share approved reports (or extracts from them) with any person with whom they consider it appropriate to share it for the purpose of promoting the learning of lessons with a view to safeguarding those affected by abusive domestic behaviour or promoting the wellbeing of victims of abusive domestic behaviour. For example, this would allow valuable learning material which is too sensitive to be published to be shared with an organisation which is involved in tackling domestic abuse and would therefore benefit from being aware of a particular learning point. Subsection (4) makes further provision about any such sharing—
It obliges the person who is deciding whether or not to share the report/extract to take that decision in accordance with the protocol (see section 24 and paragraphs 208 to 211 of these Notes). Any sharing itself must also accord with the protocol.
It provides that the person sharing the material can redact or anonymise it as appropriate. This goes further than the ability to share a part or parts (i.e. extracts): the changes could include adding in pseudonyms or making some details vaguer rather than simply omitting them.
It provides that the person with whom the material is shared may not share any unpublished material with anyone else and must keep the content confidential.
Section 29 – Requirement to respond to report recommendations
234.This section allows for the imposition of a requirement on a person to respond to the recommendations made in a case review report. This requirement is imposed by a statement being made in a report approved under section 27(5) that a person is required to provide a response. Given the role of the case review panel and the review oversight committee in the report being prepared and approved, such a requirement could therefore be imposed by either of them but if it is imposed by the panel then it would require the consent of the committee in order to remain in the report which is approved.
235.Where a requirement is imposed, the review oversight committee must give the person a copy of the report so that the person is able to give a meaningful and informed response. The person must then, within such reasonable period as the committee specifies, provide the committee and the Scottish Ministers with a statement in response. That statement must set out what the person has done, or proposes to do, to give effect to the recommendation, and to the extent that the person does not intend to give effect to the recommendation then the statement must give the person’s reasons for that.
236.The review oversight committee and the Scottish Ministers are both empowered under subsection (3) to publish (fully or partially) the person’s written statement, and to publicise any failure to comply with a requirement to respond.
Section 30 – Periodic reports
237.Subsection (1) of this section provides for the Scottish Ministers to prepare and publish, as soon as reasonably practicable after the end of a reporting period, a report in respect of domestic homicide or suicide reviews during the reporting period. This report must also be laid before the Parliament within the same timeframe. The first reporting period will end 2 years after the day on which the definition of the review model comes into force, and thereafter each subsequent two-year period will be a reporting period.
238.There are a number of things which the report must cover under subsection (2), although it can also include such other information in respect of reviews during the period as the Scottish Ministers see fit.
239.Specifically, the report must include—
information about any common themes emerging from the outcome of reviews,
information about any lessons to be learned which are identified in case reports and which the Scottish Ministers consider to be of particular importance (for example, this might include pertinent points learned about the experiences of a particular minority group which may be of wider relevance but might not be a common theme as there may be only one report relating to that minority group),
information about any actions taken as a result of recommendations made in individual case reports and, where known, the impact of those actions,
the reasons for any cases being sifted out – e.g. where the outcome of the sift stage is a determination that a death is not reviewable or that, although it is reviewable, a review is not to be carried out (for example, it may be that a death is not reviewed because the connection with Scotland is too peripheral for there to be any lessons to be learned for Scottish systems),
the number of notices given by the Lord Advocate which suspend, discontinue or allow the resumption of a review, along with the reasons given for any suspension or discontinuation, and
certain statistical information, as set out in subsection (2)(b), which will provide an overall picture of the work taking place throughout the reporting period in respect of the review model.
240.Subsection (3) requires the Scottish Ministers to consult the persons specified in this provision when preparing a report.
Guidance
Section 31 – Guidance by the Scottish Ministers
241.This section provides that where the Scottish Ministers issue written guidance about the functions of the review oversight committee or of case review panels, the committee and those panels must have regard to that guidance. The committee and any case review panel chairs must provide the Scottish Ministers with such assistance as they reasonably request in preparing any such guidance. The Scottish Ministers are also required to publish any such guidance that they opt to issue, and must do so as soon as reasonably practicable after issuing it. The term “guidance” in this section would cover both the initial guidance and any revised guidance.
In the scenario where, for example, an abused woman kills her husband and then kills herself, subsection (6) is not relevant as the suicide would be reviewable under subsection (3)(b).
Inquiries under that Act are often referred to as fatal accident inquiries, although they also cover inquiries into deaths in custody and can further cover sudden, suspicious or unexplained deaths, or those which occurred in circumstances giving rise to serious public concern.
