Section 3: Criminal investigation and charges

A death on the road is investigated by the police on behalf of the Procurator Fiscal (see below).

The police have a duty to try to find out what happened by gathering evidence which they submit to the Procurator Fiscal. A police investigation can take a long time. How long it takes will depend on your case.

You can contact the police to find out how an investigation is progressing and how long it will last. You can also ask the police to explain the procedures involved in the investigation.

If the police decide to stop an investigation, you can ask why this has happened. This is written into a Crown Office and Procurator Fiscal document called ‘Access to Information Protocol’. You can read this guidance at www.brake.org.uk/codes-and-standards.

Evidence from people

People involved in the crash can be tested for alcohol, drugs and have their eyesight checked. This includes testing injured drivers if permission is given by medical staff caring for them.

The police may seek other medical evidence to help show what has happened. 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 (see Section 1: What happens now?).

People involved in the crash, or who witnessed the crash or events leading up to or after the crash, may be asked to give a statement (see below). They may also be asked to give the police their mobile phones.

If there are not enough witnesses, police may issue an appeal for witnesses, through the media or through notices at the scene.

Giving a statement

The police may take statements from 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 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.

If you give a statement, the police will write down and record what you say. If you give 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 need help with communicating, you may also be entitled to assistance from an interpreter or intermediary (someone who helps communicate questions the police ask, and your answers).

You may also be asked to attend a precognition interview (see later).

You may also be given the opportunity to make a victim statement (see later).

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.

Evidence from vehicles

Collison investigation officers, who are specially trained police officers, or employees of other agencies working in partnership with the police, may remove and examine vehicles to:

• find out if they are mechanically defective
• get more information about what happened, by studying vehicle damage or vehicle electronic data, for example a vehicle’s speed and braking, or how long it was driven for.

Cameras attached to a vehicle that were pointing at the driver, or the road, may provide vital information. Cameras are also used by some cyclists.

If a lorry, bus or coach was involved, then a vehicle examiner with particular expertise in studying commercial vehicles should carry out the vehicle examination. They may look at brakes and other potential major faults, and any driving records (showing when a driver took breaks and how long for).

Evidence from the scene

Collison investigation officers can photograph, video and measure the crash location, at the time of the crash and sometimes later too.

They record things like vehicle position in the crash, skid marks on the road, and damage to objects, such as bollards. They also analyse any available footage from street cameras (CCTV).

If the crash involved someone driving for work

If the crash involved someone driving for work, the police or other agencies may need to investigate their employer, to find out if there was any failure by the employer to ensure a vehicle was safe or driven safely. They may need to interview people or seize paperwork.

The Health and Safety Executive (HSE) may get involved in the investigation. HSE inspectors usually only get involved if the police identify that serious management failures contributed significantly to the crash or if machinery that was part of the vehicle was at fault. The investigation will usually be con- ducted 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.

For more information about the role of the Health and Safety Executive in investigating road crashes, go to www.hse.gov.uk/roadsafety and click on ‘the law and how it is regulated’.

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

The police are required to meet certain standards for how they investigate fatal road crashes. These standards are written into a police document called the ‘Road Death Investigation Manual’. You can read this document at www.brake.org.uk/codes-and-standards.

Police reports

If the police investigation finds evidence that suggests a crime may have been committed, this evidence is compiled into a report that is sent to the Procurator Fiscal. This report contains all the evidence relating to the police investigation. It is confidential and you cannot see it.

You can see a different police report called a collision investigation report, which explains the physics of what happened in the crash. You may be able to get a copy after any criminal proceedings have finished, or if there is no criminal prosecution. You or your solicitor can ask the Procurator Fiscal for a copy of the collision investigation report.

Before reading a police collision investigation report, you may want to ask your solicitor or the police what it contains. Police reports often contain sensitive information that you may find upsetting. You can ask the police or your solicitor to remove anything you don’t want to see or read.

If you are making a claim for compensation (see Section 5: Can I claim compensation?), your solicitor will request an ‘abstract’ police report that gives brief details of the crash and who was involved. Your solicitor may also request extra evidence from the investigation or ask to interview police officers involved in the investigation. Your solicitor may only be allowed to interview the police or obtain extra evidence after any criminal proceedings are finished.

The police are required to meet certain standards for the disclosure of information after a road crash. These standards are written into a Crown Office and Procurator Fiscal document called ‘Access to Information Protocol’. You can read this guidance at www.copfs.gov.uk/access-to-information-protocol. An easy-read version is also available.

The Crown Office and Procurator Fiscal Service (COPFS) Is the agency responsible for prosecuting criminal cases that have been investigated by the police in Scotland.

The purpose of a criminal prosecution is to find out if someone has broken the law and appropriately sentence them.

COPFS employs lawyers called Procurators Fiscal to investigate all sudden deaths. The Procurator Fiscal is responsible for:

• instructing a post mortem (see Section 1: What happens now?)
• overseeing the police investigation (see above)
• deciding whether or not someone should be charged with committing a criminal offence (in consultation with senior lawyers called Crown Counsel, see below)
• 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 carry out further investigations or interview witnesses. Once they are satisfied that the circumstances of a death have been fully investigated, they will what will happen next, which may include a criminal prosecution.

Contact with the Procurator Fiscal

The Procurator Fiscal should contact you within 12 weeks of a death being reported to them. When they contact you, they should:

• tell you the progress of the investigation
• offer you a personal meeting, within the next 14 days.

If you do not want a meeting, the Procurator Fiscal can communicate with you in other ways, and you can say how you would like this to happen.

The Procurator Fiscal will contact you every six weeks to tell you about the progress of the investigation and you can ask to meet the Procurator Fiscal again, if you want to.

The Procurator Fiscal should consider your views when making decisions about the investigation and prosecution.

Once a decision has been made about whether or not to charge someone for committing a criminal offence, or offences, the Procurator Fiscal should contact you to explain the decision. For information on prosecutions, see below.

The Procurator Fiscal will also tell you if you are eligible to make a victim statement (see below).

You can contact the Procurator Fiscal to ask questions about the investigation or to say if you have any concerns. Your police contact can tell you how to do this.

The Procurator Fiscal is required to meet certain standards for the different stages of the investigation process and how they provide information about the investigation. These standards are written into a COPFS document called the ‘Family Liaison Charter’. You can read this document at www.brake.org.uk/codes-and-standards.

For more information about your right to support from criminal justice agencies, including COPFS, see Introduction.

The Victim Information and Advice (VIA) service is provided by COPFS.

If the Procurator Fiscal is considering criminal charges or investigating the death, you will be assigned a VIA officer, if you are the nearest relative of a person who died.

Your VIA officer can:

• give you information about the criminal justice system
• give you 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 have been assigned a police Family Liaison Officer (FLO), you will normally be introduced to a VIA officer in a meeting. After this, your FLO will withdraw from your case.

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

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 can get help from VIA, call COPFS on 0300 020 3000. For more information on VIA, go to www.copfs.gov.uk and click on 'Victims'.

If VIA cannot help you, they can refer you to other support agencies if you wish.

Precognition interviews

After the Procurator Fiscal receives the police report, they may decide whether to interview any witnesses as part of the investigation into the death. This is called a ‘precognition interview’.

Precognition interviews help the Procurator Fiscal decide if someone should be charged with committing a crime.

If you have evidence relevant to the investigation (for example, 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 attend a precognition interview with the Procurator Fiscal or a lawyer acting on behalf of someone involved in the crash.

You should co-operate with any request to attend a precognition. Your contact details remain confidential. They cannot be given to a person who is accused of a crime.

Precognitions usually take place in private. It may be possible for a friend or family member to come with you to support you. You will need permission from the Procurator Fiscal for this to happen. You are not allowed to be accompanied by another witness and your supporter cannot take part in the interview. You may be able to claim expenses for attending a precognition interview.

Victim statements

A victim statement is a written statement by you, about the effect of the crash on you and your family. In your statement you can explain how the crime has affected your life and others’ lives, for example physically, emotionally and financially.

You and other family members may be eligible to make a victim statement. If you are eligible to make a victim statement, the Procurator Fiscal will write to you and explain what to do. If you do not receive a letter and feel you are eligible to make a victim statement, you can ask the Procurator Fiscal or a VIA officer for more information.

A victim statement is an important document because it will become part of the case papers and will be given to the court. This usually happens if an accused person is found guilty by trial or pleads guilty, before a sentence is passed. The judge or sheriff will consider all the circumstances of the case and your victim statement and decide what weight should be given to it. Your victim statement will not always have an effect on the sentence.

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 government booklet called ‘Making a victim statement’. You can read this booklet at www.mygov.scot/victim-statement.

The charity Victim Support Scotland can give help and advice on making a victim statement. Call 0800 160 1985 or go to www.victimsupport.scot to find details of your local office.

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.

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

Sometimes several charges are brought. Sometimes no charges are brought. 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 decide 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.

Charging someone with an offence

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.

The possibility of bail

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
• commit an offence while on bail
• interfere with witnesses
• obstruct the course of justice.

An accused person remanded in custody may apply for bail at different stages, even if bail has been refused earlier. They may appeal against a decision not to grant bail. If bail is granted, the prosecution can appeal against the decision.

People on bail are required to turn up, when required, to court hearings. Other conditions may include 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.

If an accused person is remanded in custody, their court hearing must start within certain time limits. You can get more details from the Procurator Fiscal.

An accused person who is on bail and who possesses a valid driving licence will be allowed to continue driving while awaiting trial. If convicted of a crime, they may or may not be disqualified from driving as part of their sentence.

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

There are different offences that someone can be charged with after a crash, depending on the evidence collected.

It may help to know that:

• some offences mention that a death or deaths have occurred, but others do not
• sometimes a person, or more than one person, is charged with committing more than one offence.

Some of the offences that someone can be charged with following death on the road include:

Offences that mention that a death has occurred

• Causing death by dangerous driving
• Causing death by careless or inconsiderate driving
• Causing death by careless driving when under the influence of drink or drugs
• Causing death by driving: unlicensed or uninsured drivers
• Causing death by driving: disqualified drivers
• Murder and culpable homicide
• Corporate manslaughter and corporate homicide
• Killing someone by using a defective vehicle

Charges that do not mention that a death has occurred

• Dangerous driving
• Careless driving
• Causing serious injury by dangerous driving
• Failing to stop or report an accident
• Taking and driving away
• Driving otherwise than in accordance with a licence
• Driving while disqualified
• Driving without insurance

Maximum penalties are fixed by law and are different for different offences, sometimes significantly. Courts often impose penalties lower than the maximum.

Sometimes, new offences are created, or there are changes to the definition of offences or the maximum penalty for an 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 (see above), or ask your solicitor. You can also ask the National Road Victim Service to email you more information or explain something over the phone.