Section 3: Criminal investigation and charges

Procurators Fiscal investigate all sudden deaths. They are qualified lawyers and are employed by the Crown Office and Procurator Fiscal Service (COPFS). They are responsible for:

• instructing a post-mortem examination (see Section 1: What happens now?)
• overseeing the police investigation and then deciding
• whether or not a criminal prosecution should go ahead, in consultation
• with senior lawyers called Crown Counsel;
• deciding whether a Fatal Accident Inquiry should happen (see Section 4: Court cases).

Once the Procurator Fiscal has considered the police report into a crash, they may decide to interview witnesses and carry out further investigations. Once they are satisfied that the circumstances of the death have been fully investigated, they will decide the next step, which may include a criminal prosecution.

Contact with the Procurator Fiscal

The Procurator Fiscal should contact you no later than 12 weeks after a death is reported to them to tell you the progress of the investigation. When the Procurator Fiscal contacts you, they should also offer you a personal meeting, which should take place within the next 14 days. If you do not want a meeting, the Procurator Fiscal will communicate with you in other ways according to your needs and wishes. After that, the Procurator Fiscal will contact you every six weeks about the progress of the investigation. If you want a further meeting, this can be arranged.

The Procurator Fiscal should continue to liaise with you to keep you informed of any progress and to ensure your views are carefully considered when decisions are being made.

Once a criminal charge or charges have been brought against someone, or a decision has been made to bring no charges, the Procurator Fiscal should contact you again to explain the decision.

You should be able to contact the Procurator Fiscal or a Victim Information and Advice (VIA) officer at any time to ask questions or raise concerns you may have during the investigation into the circumstances of the death. Your police contact can tell you how to contact the Procurator Fiscal if you have not heard from them already.

The COPFS Family Liaison Charter explains how the Procurator Fiscal will liaise with you about the different stages of the investigation process, the information that will be provided and the timescales for giving information. To read this document, go to www.copfs.gov.uk/publications and click on 'Information following a death'.

If criminal charges are being considered by the Procurator Fiscal, and you are the nearest relative of a person who died, a Victim Information and Advice (VIA) officer will be assigned to provide you with information about what is happening.

VIA is a service provided by the Crown Office and Procurator Fiscal Service (COPFS). Your VIA officer has direct access to information about your case. If you have been assigned a police Family Liaison Officer (FLO) you will normally be introduced to a VIA officer in a meeting. At this time, your FLO will pass responsibility to VIA for giving you information. Your FLO will then withdraw from the case.

If you do not have a FLO, you may be introduced to VIA by another police officer or the Procurator Fiscal.

VIA staff can:

• provide information about the criminal justice system
• provide information about the progress of your case, including dates of hearings and decisions about bail, verdicts and sentences
• help you to get in touch with organisations that can offer practical and emotional support, if this is what you want
• provide additional support, for example if you have to give evidence
• arrange for you to visit the court before the trial.

If you are not introduced to a VIA officer, this may be because someone else (a nearest relative) is receiving help from VIA.

To find out if you are also able to receive help from VIA, you can call COPFS on 0300 020 3000. If VIA cannot help you, they can refer you to other support agencies if you wish.

For more information on VIA, go to www.copfs.gov.uk and click on 'Victims'.

A death on the road is investigated by the police on behalf of the Procurator Fiscal. The police have a duty to try to find out what happened by gathering evidence, and then submit this evidence to the Procurator Fiscal. A police investigation can take several months.

Your police contact should be able to explain the procedures involved in the police investigation to help you understand how long it will last.

If the police decide to stop an investigation and you have not been told why, you can ask your police contact or make a formal request for this information to Police Scotland. There is information on how to do this in the document ‘Access to Information Protocol’. To read this document, go to www.copfs.gov.uk/publications and click on 'Victims and witnesses'.

Giving a statement

The police may take witness statements from a number of different people. If you were involved in the crash, you saw the crash, or you saw vehicles before or after the crash, you may be asked to give a witness statement. If you were not involved in the crash, but knew the movements of a loved one on the day they died, you may be asked to give a statement too. If you give a statement, the police will write down and record what you say.

If you have made a statement, a lawyer, or more than one lawyer, may want to interview you too. This is an essential part of the investigation and helps lawyers understand the evidence you are providing. Your contact details remain confidential - they cannot be given to someone accused of a crime.

It may be possible for a relative or friend to attend an interview with you to offer support. If you want to be accompanied ask if this is possible. If you have particular communication needs you may also be entitled to assistance from an interpreter or intermediary (someone who helps communicate to you questions the police ask, and communicate back your answers).

If you give a statement, you may or may not be required, at a later date, to give evidence in court. For information about giving evidence in court and support to help you do this, see Section 4: Court cases.

Physical evidence

Collison investigation officers, who are specially trained police officers, or employees of other specialist agencies, investigate a crash in order to identify the cause and obtain evidence. These experts may photograph, measure and video the site of the crash and examine vehicles involved (see Section 1: What happens now?). Their findings will be included in a collision investigation report. The police may also examine belongings of people who were involved in the crash, such as mobile phones.

Medical evidence

Medical evidence may be provided by staff who treated a loved one at the crash site or in hospital, and by the pathologist who did the post-mortem examination (see Section 1: What happens now?). Medical evidence can include alcohol and drug tests on the drivers involved.

If the crash involved someone driving for work

If the crash involved someone driving for work, the Health and Safety Executive (HSE) may be involved in the investigation. HSE inspectors aim to identify any failure by an employer to ensure health and safety procedures were in place and followed. The investigation will usually be conducted jointly with the police. The police will be able to tell you if the HSE are involved. The HSE can take enforcement action against an employer.

A Fatal Accident Inquiry (FAI) will normally be held if the death was the result of an accident that happened in Scotland while the person who died was at work (see Section 4: Court cases).

Standards for police investigations into fatal road crashes are explained in a police manual called the Road Death Investigation Manual. If you want to read this manual, ask your police contact.

For more information about the Health and Safety Executive (HSE), go to www.hse.gov.uk/scotland.

The decision to prosecute or not

The purpose of a criminal prosecution is to find out if a person, or in some cases a company, has broken the law and to punish an offender or offenders. Whether or not a criminal prosecution happens depends on the circumstances of the crash and whether there is enough evidence to support a criminal charge. Sometimes several charges are brought. Sometimes no charges are brought.

The Procurator Fiscal will consider the law, the evidence and whether it is in the public interest for charges to be brought. The crime has to be recognised in Scottish law and there also has to be enough reliable and credible evidence that the crime was committed by someone.

If the Procurator Fiscal thinks a serious criminal charge should be brought against someone, they send a report explaining their recommendation to senior lawyers called Crown Counsel. Crown Counsel will then instruct which charge or charges should be brought.

Some charges must be brought within certain time limits. The police or the Procurator Fiscal can advise you.

Victims' Right To Review

If a decision is made by the Procurator Fiscal not to bring charges against someone, you may have the right to request a review of that decision, known as a Victim Right to Review. If you wish to request this, contact the Procurator Fiscal to find out if it is possible and the time frame in which you must do it.

Victim statements

If a case is being heard in the High Court or before a sheriff and jury (see Section 4: Court cases), up to four family members may be asked whether or not they want to make a victim statement. This gives them an opportunity, before sentencing, to explain in writing how the crime has affected their lives, physically, emotionally and financially.

If you are eligible to make a victim statement, the Procurator Fiscal should send you a letter that includes a victim statement form and the date that you need to return the form by. If you do not receive a letter and you feel you are eligible to make a victim statement, you can ask the Procurator Fiscal or a VIA officer for more information.

If you make a victim statement and an accused person is found guilty by trial or pleads guilty, your victim statement will become part of the case papers and will be presented in writing to the sentencing judge or sheriff. You will not be able to read out your victim statement in court.

You do not have to make a victim statement. If you choose not to, information about how the crime has affected your life can still be explained in court.

More information, including details of who can make a victim statement and what can be included in a statement, is available in a booklet called ‘Making a victim statement’, available from the Scottish Government website. Go to www.mygov.scot and search for ‘make a victim statement’.

Charging someone and the possibility of bail

Someone who is being charged with a criminal offence is often called ‘the accused’. An accused person will be issued with a document, called a complaint, petition or indictment, that tells them to appear in court to answer the charge. Before their court appearance, an accused person may be remanded in custody (imprisoned) or granted bail (allowed to remain free before their case is heard).

The accused will be granted bail unless the court has good reason to believe they:

• would not attend a court appearance
• would commit an offence while on bail
• would interfere with witnesses
• would obstruct the course of justice.

People on bail are required to turn up, when required, to court hearings. Other conditions may be attached to bail, such as limiting where the accused person can live, or preventing them coming near you or your home or near someone else. A person on bail can also be electronically tagged.

A court may require an accused person to refrain from driving as a condition of bail, but only if it considers that it is necessary to prevent the accused person from committing further offences. Otherwise, an accused person who is on bail and who possesses a valid driving licence will be allowed to continue driving while awaiting trial. If they are convicted of a crime, they may or may not be disqualified from driving as part of their sentence.

The accused person may apply for bail at different stages of the case, even if it has been refused earlier. The accused may appeal against a decision not to grant bail. If bail is still refused on appeal, the accused can ask for the decision to be reviewed, but only if there is good reason.

If bail is granted, the prosecution can appeal against the decision.

If the accused is granted bail and their behaviour causes you concern, for example you see them driving in a way that you consider dangerous, or if they threaten you, report it immediately to the police, VIA or the Procurator Fiscal.

VIA should inform the nearest relative of any bail decision. If the accused is remanded in custody, their court hearing must start within certain time limits. You can get more details from the Procurator Fiscal.

Changes to charges

Sometimes, if the accused is charged with a serious offence, the lawyers representing the accused will discuss with the Procurator Fiscal whether the charge should be changed to a different, perhaps less serious offence, based on the evidence of the case. This process is called ‘plea negotiation' and usually happens before a case goes to trial.

The Procurator Fiscal may decide to continue charging the accused with the original offence or may agree to change the charge to a less serious offence. Their decision is based on the law, the evidence and what is in the public interest.

Click on the link below for a list of criminal offences that someone can be convicted of following death on the road. Many people find it helpful to know that:

• Maximum penalties are fixed by law and are different for different charges, sometimes significantly. Courts often impose penalties lower than the maximum.
• Some charges mention the death or deaths, but others do not. Sometimes the only charges that can be brought by the Procurator Fiscal do not mention the death or deaths.
• Sometimes a person, or more than one person, is charged with committing more than one offence.

If you need more information about why someone has, or hasn't, been charged with a particular offence, you can ask the Procurator Fiscal for a meeting, or ask your solicitor if you are using one. You can also ask the National Road Victim Service for help.