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.
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.
