Alex Close-Claughton discusses post mortem examinations and their relevance to homicide cases in light of the new guidance issued by the Chief Coroner in September this year.
When are deaths investigated?
Article 2 of the European Convention on Human Rights obliges states to investigate suspicious deaths.
A coroner is required to investigate deaths where: the deceased has died in a violent or unnatural way; the cause of death is unknown or; the deceased was detained by the state at the time of their death.
Often coroner’s death investigations will run alongside police investigations, however this is not always the case.
Not all death investigations require a post mortem, however if there is a suspected homicide then generally a forensic post mortem will be required.
What is a post mortem?
A post mortem examination (also known as an autopsy) can only be ordered by a coroner and can be described as an examination of the deceased’s body in order to determine the cause of death.
It often involves dissection of the deceased’s body but can also involve toxicology tests, tests on tissue samples and CT or MRI scanning of the body. In practice the type of death determines which methods are used.
Post mortems can only be carried out by a consultant histopathologist or a forensic pathologist who answer only to the coroner and have a duty to work impartially and independently.
Post mortems in homicide cases
The cause of death is clearly a very important aspect of a criminal prosecution for a homicide offence. If it cannot be proven that the defendant’s act (or omission in certain cases) caused the death of a victim, then a prosecution is very likely to fail.
When a violent death occurs the coroner will order a forensic post mortem. This differs slightly from a standard post mortem in that it is are aimed at collecting evidence for a prosecution as well as determining how the deceased was killed.
A multitude of samples and photographs are collected with a view to establishing the identity of the killer and other crucial pieces of information concerning the circumstances of the death will be collected which could prove to be vital elements of a potential prosecution or defence case.
What is a second post mortem and why might one be necessary?
A second post mortem will involve a second pathologist reviewing the first post mortem and considering whether they can support or contradict the findings of the first. It will not always require a second dissection of the body and may simply be a matter of the pathologist looking at photographic and scanned material and a review of the original report. The reason why a second post mortem is performed will often determine what is done during it.
There is not always a necessity for a second post mortem but specific issues that require further exploration may come to light which were not known at the time of the first examination. For example, there may have been points made by a suspect during their interview or in a consultation with their solicitor, which require exploration or the police may have uncovered some evidence which contradicts the findings of the first examination.
When can a second post mortem take place?
It is a common misconception (in the criminal/legal sphere) that a defendant accused of a homicide offence has an automatic right to have a second post mortem carried out. This is not the case. Having said that, the Coroners Guidance makes it clear that proper regard should be given to the concerns of interested third parties when considering whether to order a second post mortem and this extends to the interests of those accused of a criminal offence arising out of the death. The coroner will also be keen to avoid having a negative impact on a suspects right to a fair trial by failing to order a second post mortem when one has been requested.
It is the coroner’s decision alone whether or not to order a second post mortem and it is the job of those representing the suspect to convince the coroner that a second examination is required. Submissions should be made in writing by the defence solicitor, outlining the reasons a second post mortem is required as well as a recommendation for a suitable forensic pathologist who can carry out the examination.
A coroner may also order a second post mortem in case where there is a victim of homicide but no established suspect. In these circumstances a second post mortem may be ordered ‘just in case’ a suspect was subsequently established who then makes issue with the fact only one post mortem was carried out. This is so that the coroner can release the body of the deceased to their next of kin without having to wait until it has been decided whether or not a prosecution will proceed. A second post mortem may also be requested by the family or next of kin of the deceased if they are unhappy with the findings of the first one.
What are the conclusions of the new guidance?
The guidance issued by the Chief Coroner recommends that photographic and scanning facilities should be utilised and findings of examinations should be properly documented. This means that that ‘desktop’ reviews of first post mortems are possible and that the first examination can be scrutinised without delaying the release of the body to the next of kin or causing the need for further dissection of the body. There is also a desire to standardise the procedure, which has varied regionally in the past.
It also stresses the importance of having regard to the family of the deceased and ensuring that delays in returning the body to the family are avoided wherever possible. It recommends that that a second post mortem should be completed within 28 days of the body coming under the control of the coroner. It does however accept that the stakes are very high with homicide cases for defendants and it is important that defence lawyers are able to properly examine and interrogate the evidence wherever possible.