Second post-mortems in murder cases

It is often assumed that in a case of murder, the defence are automatically entitled to a second post-mortem. This is wrong. Whilst a defendant can request a second post-mortem, they cannot insist upon it as of right, and the granting of a second post-mortem is always subject to the discretion of the coroner.  

The coroner will weigh up the family’s right to bury the deceased against the relevance of further examination and the integrity of the criminal process. 

It is crucial that a defence team considers at the earliest possible opportunity whether a second post-mortem might be required prior to the release of the body for burial or cremation. If a defence is likely to be affected by medical findings concerning the cause and manner of death, it may well be appropriate for the defence to conduct an independent examination. Anyone facing an allegation of murder should be represented by an experienced defence team with a comprehensive knowledge of the process. 

Chief Coroner’s Guidance

In 2019, the Chief Coroner’s Guidance No. 32 Post-Mortem Examinations Including Second Post-Mortem Examinations was issued. 

We previously considered the Guidance when it was initially issued. The Guidance is intended to promote consistency in decision making and states that ‘requests should be scrutinised rigorously by the coroner on a case-by-case basis’. 

One of the main reasons for this Guidance was to limit the old standard assumption or acceptance that there would always be a ‘defence’ post-mortem. 

The Guidance makes it very clear that whenever a post-mortem examination is requested on behalf of the defence, it is a matter for the defence to justify to the coroner the reasons for the request. The intention is to avoid delay and the inevitable distress that may be caused by a second ‘invasive’ post-mortem examination. 

And yet, in appropriate circumstances, a second post-mortem can be central to a defendant’s chances of acquittal.  

The role of the Coroner 

When a death is reported to the coroner and a post-mortem is carried out, the coroner controls the body until the conclusion of the inquest. A defendant’s legal team can request a second post-mortem through the coroner, especially if they believe it is necessary to preserve the defendant’s right to a fair trial. 

Crown Prosecution Service Guidelines 

CPS Guidelines make it clear that a pathologist’s statement covering the cause of death should be available as soon as possible and be released to the defence so that they may consider the need for a second post-mortem. The emphasis is upon releasing the deceased’s body. 

The CPS recognise that in most cases the Crown’s pathologist will initially provide an interim report giving the likely cause of death with a full report to follow. Pathologists will generally complete their final report once other studies (such as histology and toxicology) have been completed. 

Judicial oversight 

There is case law that suggests a failure to allow a second post-mortem may, in some circumstances, raise issues under Article 6 (right to a fair trial) of the European Convention on Human Rights. 

If the coroner refuses the request, the defence may apply judicially review the coroner’s decision. This involves an application to the High Court. 

Key issues for a second post-mortem 

The purpose of the second post-mortem will initially seek to verify or challenge the cause of death. It will look to confirm whether initial conclusions are supported by physical findings as well as look for missed external or internal trauma. 

It will also look at timing of injuries, to establish whether injuries were inflicted before or after death and where appropriate, determine the approximate time of death. 

There may be alternative theories which involve exploring alternative explanations for death (e.g. natural causes, accident, overdose, underlying medical condition). 

Toxicology may be relevant; fluids or tissues may be re-sampled. 

It may be appropriate to re-photograph wounds, injuries, or areas of interest or review and comment on the first post-mortem report. 

Preservation of evidence is crucial and any new findings should be properly documented for trial purposes.

Attendance of original pathologist at a second post-mortem examination 

The original forensic pathologist should, whenever possible, be present to discuss their findings from the first post-mortem examination. The police should also be in attendance.  

Post-mortem examination report 

A report prepared for the defence is likely to be legally privileged and not automatically available to the police. However, some coroners may choose to disclose the defence report to the police. This is considered good practice as any differences of opinion can then be resolved. 

Procedure for requesting a second post-mortem 

Firstly, the initial post-mortem is undertaken by a pathologist instructed by the coroner or police. 

The defence team may be notified of the post-mortem in which case they may send an independent pathologist to observe, avoiding the need for a second post-mortem. 

If there was no independent observer, the defence may formally request that the coroner delay releasing the body to time for a second examination. But the request must be made promptly and should set out the reasons why a second post-mortem is necessary. 

If the request is refused, the defence can seek a judicial review in the High Court, arguing prejudice for the defence if the second post-mortem is not granted. 

Olliers Solicitors – specialist murder defence lawyers 

Established in the 1980s, Olliers has represented clients in over 100 murder trials and numerous complex investigations, consistently achieving outstanding results. Few, if any firms in the country can match our level of experience in the defence of serious crime allegations.  

We have a team of 27 solicitors all criminal defence solicitors, many are rated as ‘Leaders in their Field’. Olliers is ranked as a top-tier law firm by both the authoritative guides to the legal profession, namely the Legal 500 2025 and Chambers Guide 2025. We are a Times Best Law Firm 2025. We are the Manchester Legal Awards 2024 Crime Team of the Year, retaining the title from 2023, an award we have won seven times since 2011. 

Matthew Corn heads up Olliers’ serious crime department with over 25 years’ experience of defending allegations of murder and manslaughter. Managing Director Matthew Claughton has in excess of 35 years of experience representing individuals charged with serious criminal allegations. Matthew Claughton is ranked as a Leading Individual by the Legal 500 and the 2023 Northern Powerhouse Criminal Lawyer of the Year. He is the only lawyer to win the Manchester Legal Awards Partner of the Year award twice. They are assisted by experienced practitioners in the field who undertake their own serious crime cases including Alex Close-Claughton who is a Senior Associate. 

We are available 24 hours a day 365 days a year and we provide nationwide coverage. 

If you or someone you know requires representation in relation to an allegation of murder or manslaughter (or any serious criminal allegation) please contact Olliers by telephone on 0161 834 1515, by email at info@olliers.com or complete the form below.