THE “SECOND” POST MORTEM EXAMINATION – IS IT NECESSARY?
Old case law (R v Bristol Coroner ex parte Kerr [1974] QB652) has established –
“… that the coroner’s authority over the physical control of the body arises as
soon as he decides to hold an inquest and lasts at common law until the inquest
itself is determined. I am in no doubt that counsel for the coroner is right in his
principal submission, namely, that the coroner had the right to retain control of
the body at the relevant times in this case.
The alternative argument put forward by counsel for the applicant is that, even if
that right existed, there was a discretion under s.14(2) of the 1926 Act to
release the body, and the discretion was wrongly exercised in consequence of
an irrelevant fact, that is to say the desire of the solicitors for the defence
in the murder case to have access to it [my emphasis]. All I find it necessary
to say is that, far from an irrelevant fact, it is a highly relevant fact [my
emphasis], and although one hopes in all of these cases the utmost expedition
takes place in the release of the body, nevertheless it is impossible to say that
the coroner’s refusal at the time when it was given was an excess of jurisdiction
or disclosed any error of law …”.
Home Office Circular No.30/1999, although without force of law, notes – “…the need in the
interests of justice, to offer a defendant the opportunity to arrange an independent
examination of the body … The additional distress for the families in this situation can be
readily appreciated. Nevertheless, 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”.
Since that time, however, there has been judicial comment upon the approach of a
pathologist to a case of suspicious death, allowing scrutiny of the terms “independent
examination” and “primary evidence”. In R v Clark ([2003] EWCA Crim 1020) it was said –
“It is desirable, however, that we should first set out our clear understanding of how a
pathologist will approach a case of suspicious death. In the first place, he will
obtain information about the circumstances of the death. This may, in some
cases, involve a visit to the body in situ before it is removed to the mortuary. It
will almost inevitably involve receiving information from the investigating officers.
This will include a version of the circumstances emanating from witnesses and
any possible explanation advanced by any suspect. Although the suggestion has
been made that the obtaining of such information may be undesirable, we have
no doubt that this is wrong. The initial post mortem is critical to any conclusion
as to the cause of death. Amongst the questions the pathologist will want to
answer are whether any competing explanations for the death are consistent with
his findings. The very act of carrying out the post mortem examination will
alter the condition of parts of the body [my emphasis] and to learn only after
examination of explanations that have been advanced runs the risk that the best
evidence to confirm or contradict the explanation may no longer be available. A
competent pathologist will not assume that any one of the explanations for death
advanced is necessarily the correct explanation but in considering the range of
possibilities he will have specific regard to evidence consistent with or
contradictory of such explanations. It is, of course, important that the pathologist
records such information so that anyone else can understand any matter that he
may have had in mind in conducting the examination”
and, later,
“Where a second post mortem examination was to be performed by a different
doctor or where some other medical expert was to become involved in the case,
we would expect the original pathologist to understand the need to share all
information that he had obtained with the other doctors whether or not at the
end of the day he had concluded that it provided an explanation for the cause of
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death. If he did not, he would deprive the other doctor of the opportunity to
decide for himself whether that information was relevant or not. There are good
reasons why this duty is such an obvious and important one. The first is that to
which we have already referred, namely the fact that the carrying out of the
initial post mortem may have caused changes to the body that obscure findings
made during the course of that post mortem, or prevent the observation of other
important features. The second is that there is a clear responsibility to
avoid any interference with the body unless it is necessary to reach a
proper understanding of the death. Thus repetition of interference with
the body, necessarily a part of a post mortem examination, should be
limited to that which is truly necessary [my emphasis] ….” .
Such judicial comment emphasises that any “second post mortem examination” will not be
“primary evidence” save where the “first post mortem examination” has failed to examine a
relevant part of the body.
The independence of the pathologist making the “first post mortem examination” is
emphasised further in R v Puaca ([2005] EWCA Crim 3001) –
“…A post-mortem report fulfils a number of functions. It guides the police in
their investigations. It is likely that it will be considered in pre-trial proceedings
and applications such as an application for bail or legal assistance. It is the
basis of the expert’s evidence at trial. As such the opinion of the pathologist
must, as the Practice Guidelines of the Policy Advisory Board for Forensic
Pathology make clear, be “objectively reached” and have “scientific validity”.
The duty of all pathologists, whoever instructs them, is, in our view, to comply
with the obligations imposed on expert witnesses from the start. It is wholly
wrong for a pathologist carrying out the first post-mortem at the request
of the police or Coroner merely to leave it to the defence to instruct a
pathologist to prepare a report setting out contrary arguments [my
emphasis]…”.
The judicial imperative towards impartiality is encapsulated in s33.2 of the Criminal Procedure
(Amendment No.2) Rules 2006:
“(1)
An expert must help the court to achieve the overriding objective by
giving objective, unbiased opinion on matters within his expertise.
“(2)
This duty overrides any obligation to the person from whom he receives
instructions or by whom he is paid”.
It appears to this forensic pathologist that there is judicial support for the view that, if
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the issues raised by the death are clear-cut or, if not, all potential issues are
considered by an impartial pathologist who directs the examination to address all
issues;
the findings at that “first” post mortem examination, both positive and negative, are
recorded in detail sufficient for proper review;
material relevant to those issues is retained in the most appropriate manner for
further examination and review, with passage of detailed information regarding what
has been retained and why to interested parties; and
sufficient information is available from the investigation of the circumstances of the
death to allow confidence that no “wholly unexpected” issue will arise
then the involvement of another pathologist is to ensure that there has been no unwarranted
emphasis on one of several possible interpretations of the significance of the findings at post
mortem examination. Where it is accepted that there will be no argument over a finding of
fact, questions of interpretation may be addressed adequately from detailed precise images of
the “first” examination, and from scrutiny of relevant retained material: a “second” examination
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of a body whose internal structure has been disturbed by that detailed “first” examination is
not only redundant but futile and, therefore, an affront to deceased and loved ones.
The key argument amongst those which may be expressed against this view will be lack of
confidence that the “first” post mortem examination has been conducted to the highest quality
standard, and with the appropriate thoroughness required to address all possible issues.
Such an argument can be refuted by demonstration of what was done at that “first” post
mortem examination: such a demonstration is possible through recording of the whole of the
post mortem examination onto digital videotape and detailed photographic documentation (by
means of digital “still images”, the adequacy of which can be addressed at the time of
“capture”) of all relevant findings, both positive and negative, allowing objective verification of
the written report against existing performance standards.
It is of interest that the Home Office Circular already cited adumbrates this view and, indeed,
appears to place an ethical duty upon a forensic pathologist advising a defence practitioner:
“….Defence practitioners are encouraged to obtain the following information as quickly as
possible thereafter:
(i)
(ii)
(iii)
The initial post-mortem report (not merely a summary or oral representation);
Photographic record of the post-mortem;
Any video recording of the post-mortem.
…Even prior to the disclosure of the report of the first post mortem,
arrangements should be made to identify a suitably qualified pathologist
capable and willing to undertake an initial examination of the prosecution
documents and such instructions as already exist from the client to see if a
separate defence post-mortem is necessary [my emphasis] …
….Whether there will always be a need for a defence post mortem in all cases
is a matter for consideration for defence practitioners, taking advice, as
appropriate, from a consultant forensic pathologist …”
Such “imaging” and the retention and appropriate preservation of material – a responsibility
imposed upon the pathologist by the Coroners Rules 1984 and repeated in the Coroners
(Amendment) Rules 2005 – will allow questions which might arise later to be addressed.
One would hope that pathologists having regard to this legal background, and operating
within a system where there is proper internal and external quality assurance of standards
relating to the making, recording, and reporting of post mortem examinations – and supported
by full investigation of the circumstances of the death allowing all relevant issues to be
identified – would give no further grounds for arguments of abuse of process as set out in R v
Winzar ([2002] EWCA Crim 2950) –
“…. it has been emphasised by this court time and again that a stay on the
ground that a fair trial is not possible by reason of the loss of evidence will only
be granted in the most exceptional circumstances. The circumstances relied on
in the present case [failure to examine or preserve the deceased’s brain] are far
from exceptional. If the Judge was required to grant a stay in the present case,
then applications for a stay on such grounds would succeed routinely in most, if
not all, cases where evidence has been lost which might have been of assistance
to a defendant. That is not the law …”.
The existence of video recordings of post mortem examinations raises questions regarding
consent, access, and security, but such may be addressed by discussion between interested
parties. Should there be no sustainable objection to such recording, then any arguments
against such recording based upon lack of resource or the workload/convenience of forensic
pathologists weigh poorly against the distress caused to family and loved ones by further
examination, and delay in release, of the body.
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Of what should the “first” post mortem examination comprise?
Recent case law – Kasperowicz, R (on the application of) v HM Coroner for Plymouth [2005]
EWCA Civ 44 – draws attention to what is meant by “post-mortem examination”:
“What is not spelt out by law is how invasive a post-mortem examination needs
to be. Sometimes, no doubt, there is no alternative to a complete dissection,
but there must be many cases where the examining doctor can be satisfied of
the cause of death, by, for example, consulting the deceased’s medical records,
including those recording the circumstances of her death, by considering such
other evidence as is available from those who were present at the time of death
as to exactly what happened, and by making, if not a superficial examination of
the cadaver, then at least an examination which does not involve a major
section of it.
We are not in a position, I think, to say whether MRI scanning has a viable role
in the present case, but no doubt, subject to the constraints of section 22 [Births
and Deaths Registration Act 1953], it deserves consideration insofar as it may
be offered to the coroner as an alternative. With or without MRI scanning, the
only essential is that the coroner be in a position to complete the prescribed
inquisition form, form 22, annexed to the rules [Coroners Rules 1984], including,
unless circumstances make it impossible, his finding as to the “injury or disease
causing death”. It does not seem to me at present, although we have not heard
full argument, to follow that every line of the draft post-mortem form prescribed
by Rule 10 and Schedule 4 of the rules must be completed in every case. What
is necessary and appropriate to complete must, I would have thought, be casedependent.
If, in this case or indeed any other case, a limited post-mortem can properly be
relied upon to answer the statutory question, and if to do more would wound the
feelings of the surviving family, I can for my part see no legal inhibition on
limiting the post-mortem examination accordingly… It is simply that a postmortem examination is not so defined in the statute as to require it in every
case to be an invasive procedure. The choice, it seems to me, is a matter of
common decency and good practice. It is not a matter of law [my
emphasis] …
…we are looking here not at a legal issue but at a humanitarian issue. I do not
doubt the capacity of the coroner service to respond to these
humanitarian concerns without departing from its legal obligations [my
emphasis].”
Whether dissection will be replaced by those other means of imaging advocated by some
politicians, some radiologists and – more importantly – some religious groups, remains a
matter for further research and debate. The literature (to October 2008) addressing the use
of CT and/or MRI scanning in post mortem practice is summarised in Tables 1, 2 and 3.
Circumstances where no invasive dissection is necessary are, as adumbrated above, “casedependent” ; such circumstances have arisen – no invasive dissection was made in many of
the victims of the shootings at Dunblane. It follows that, where adequate investigative and
technological resources exist, there should be no thoughtless rush to invasive dissection; if
such resources do not exist, the question must be asked “Why not?”.
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