Our team of Home Office pathologists are available at the request of the defence to conduct a second post mortem, also referred to as a defence autopsy or defence post mortem examination. This may for example, be on behalf of a defendant charged with murder where the body of the victim is used as primary evidence.
Home Office Circular No.30/1999, Notes:
“…The need in the interests of justice, to offer a defendant the opportunity to arrange an independent examination of the body …”
“… the right of a defendant to have the opportunity for the primary evidence to be examined on the directions of his legal advisers needs to be respected”.
Once one of our pathologists is instructed by the defence to investigate the alleged violent or suspicious death they will act as quickly as possible and aim to conduct their autopsy and independent examination within 5 working days.
Current guidance suggests that the defence must assess the need for any further post mortem and inform the coroner within 14 days of receipt of the preliminary post mortem examination report.
The involvement of a second independent pathologist is to ensure that there has been no unwarranted emphasis on one of several possible interpretations of the significance of the findings at the first post mortem examination. In addition it should look to ensure that both positive and negative findings have been reported.
There may also be cases where there are immediate concerns as to the reliability, completeness and robustness of the findings of the first post mortem and where, therefore, there is the need for a second post mortem examination to be carried out.
Practice Guidelines of the Policy Advisory Board for Forensic Pathology make clear, that the opinion offered by a pathologist must be “objectively reached” and have “scientific validity”.
Together with their own autopsy findings, and before reaching any conclusions, our Home Office pathologists will look at all of the evidence which is presented to them in order that they may fully understand the circumstances of the death. This can and may include witness statements, police statements, defence statements and crime scene photographs. In addition they are very willing to answer specific questions posed by the defence counsel.
The opportunity for a defendant to request a further post mortem examination can be dependent upon how soon after the death he or she is charged. For example if they are charged after the disposal of the body.
If a defendant is not charged within 28 days of the discovery of the death, and therefore does not have a defence lawyer acting on his or her behalf during this 28 day period, the opportunity for a second independent examination is restricted to examination of the report from the initial post mortem, and any records retained in relation to it.
It is often possible however that conclusions and opinions can be drawn by examining the report, photographs and associated items from the original / first post mortem.
Therefore should the body of the deceased by unavailable there may still be opportunity for us to re-examine the case and associated evidence and review the findings of the first post mortem in order to provide the defence with a second independent opinion and address any specific issues raised by counsel.
In relation to criminal defence, it is of utmost importance that the defence solicitor and counsel understand fully the content and implications of the first post mortem examination.
In addition to our Home Office pathologists we are privileged to have on the team one of the UK’s leading forensic neuropathologists whose work includes post-mortems and forensic brain examinations.
Where a second post mortem examination is performed by a different doctor, we would expect the original pathologist to understand the need to share all information that he had obtained. If he did not, he would deprive the other doctor of the opportunity to decide for himself whether that information was relevant or not.
It is therefore essential that the defence obtain not just the preliminary post mortem report (which must be provided to the defence within 14 days of the initial examination) but also their full post mortem report. Please note that there may be a delay of 4-8 weeks between the preliminary and initial post mortem reports being available.
Defence practitioners are also encouraged to obtain the following additional information as quickly as possible thereafter:
Coroners have authority to retain a body in cases of suspicious violent death (murder, manslaughter, infanticide, and causing death by dangerous driving) for a period of up to 40 days from the death, with an option to apply to the Chief Coroner for a one off extension of a further 20 days should circumstances demand (e.g. following representations by the prosecuting authorities or the defence representative, or should additional suspects be charged with the offence).
The current guidance however limits the opportunity for defendants to request a second post mortem to 28 days.
Coroners have authority to retain a body for the purposes of:
A defendant or prosecuting authority has the right to appeal to the Chief Coroner for further 20 day extensions to release of the body, but a compelling reason must be provided for the Chief Coroner to grant such a request. The coroner’s decision will be subject to judicial review.