The Role of the Procurator Fiscal in relation to Organ Donation

The Crown Office and Procurator Fiscal’s Service (COPFS) is Scotland’s sole prosecution authority and has five main objectives:

  • To deliver swift, effective justice, giving priority to serious crime, including sexual offending, serious violence, organised crime and drug trafficking.
  • To work with the police, local communities and others to solve problems caused by persistent offending, helping people live their lives free from crime, disorder and danger.
  • To ensure that all deaths reported to the Procurator Fiscal (PF) are investigated appropriately.
  • To provide services that meet the information needs of victims, witnesses and nearest relatives, in co-operation with other agencies.
  • To respect and protect diversity, and promote tolerance.

The Procurator Fiscal (PF) is a lawyer employed within COPFS, which is part of the Scottish Government, and performs in the role of public prosecutor with a duty to investigate all sudden, suspicious, accidental, unexpected and unexplained deaths. He/she must also investigate deaths which occur in circumstances that cause serious public concern.

Scotland is divided into eleven geographical areas by COPFS and each area is headed by an Area Procurator Fiscal. Each area contains a number of district offices which are headed by a District Procurator Fiscal, with each district office having one or more Deputy Procurator Fiscal who can exercise all the powers of the Procurator Fiscal. The only exception to this is Glasgow, which is an area in its own right.

Responsibility for investigating a death rests with the Procurator Fiscal (PF) in whose jurisdiction the accident or event leading to death occurred. For example, if a person is injured in a climbing accident in Glencoe and is taken to the Southern General Hospital, Glasgow where he/she dies, the death should be reported to the PF in Fort William which is nearest to Glencoe (Death and the PF, COPFS, 2008). Certain areas, such as Glasgow, have centralised death units while other areas have local offices.

A protocol has been drawn up between COPFS and the Scottish Transplant Group (currently under review) with regards to organ and tissue donation. The most important points are:
  • Where there is reason to believe that the death may be reported to the PF, no parts of a body will be removed without his/her prior consent
  • The PF may object to removal of organs in a case which is likely to result in a charge of murder, or where, in the time available insufficient enquiry is able to be carried out to allow an informed decision. There are procedures available which will allow the PF not to object to transplantation of organs in cases of murder but early discussion with the PF is essential. The PF will normally permit removal of organs subject to the need to ensure that sufficient evidence is available for any criminal proceedings or Fatal Accident Inquiry (FAI) and the need to establish that the death has not been caused or contributed to by the retrieval operation.
FAIs are held under the Fatal Accidents and Sudden Deaths Inquiry (Scotland) Act 1976. An inquiry must be held in cases of death in custody or as a result of an accident at work.

The purpose of an FAI is not to apportion blame for the death in either the civil or criminal sense. An FAI may be held in other cases of sudden, suspicious or unexplained death, or death in circumstances that give rise to serious public concern. Decisions on whether these discretionary inquiries are held are made by the Lord Advocate.

A FAI is essentially a fact-finding exercise carried out in the public interest. The rules of evidence and the standard of proof are as for civil cases in Scotland. The purpose of an FAI is to determine:
  • Where and when the death took place.
  • The cause of the death.
  • Reasonable precautions whereby the death might have been avoided.
  • The defects, if any, in any system of working which contributed to the death or any accident resulting in the death.
  • Any other relevant facts relevant to the circumstances of the death.
  • Procurators Fiscal investigates around 14,000 sudden deaths each year. There are usually around 50 or 60 FAIs in Scotland each year.
FAI recommendations are made by sheriffs at the conclusion.

(Death and the PF, COPFS, 2008).

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