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 “relevant inquiry” means an inquiry under the Inquiries into Fatal Accidents and Sudden Deaths etc. (Scotland) Act 2016(3) or an inquiry under the Inquiries Act 2005 for which the Scottish Ministers have sole responsibility. This power would therefore allow the Lord Advocate to, for example, prevent any prejudice to criminal proceedings by, where necessary, ensuring that the review is paused until the criminal proceedings are complete. This could be exercised in relation to criminal proceedings such as murder or culpable homicide proceedings in respect of the death with which the review proceedings are concerned, but it could also be exercised in relation to other matters which are connected. This might include proceedings for perverting the course of justice in respect of the death, or even proceedings for an earlier instance of abuse which did not lead to the death. Subsection (5) clarifies that this power can be used even where the investigation, criminal proceedings or inquiry have not yet begun. It also provides that the notice ordering the suspension can do this by stating a date on which proceedings may resume, by stating that proceedings may resume once a particular event has taken place, or by stating that proceedings may resume only once a further notice to that effect is given. Where reviews are undertaken in parallel to ongoing proceedings or a relevant inquiry, section 24 provides for a protocol which will set out how reviews are to operate in order not to jeopardise proceedings or inquiries.
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.
Interpretation Conduct of reviews Section 23 – Lord Advocate’s power to order suspension or discontinuation of review proceedings