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Recently, certain high profile murder cases have drawn attention to a feature of Scottish criminal procedure which can cause additional distress to the family members of victims. With any unexplained or suspicious death a post mortem will be required to determine the cause of death, but in cases of murder or culpable homicide, the defence can instruct a second and independent post mortem. In Scotland, this can lead to significant delays in releasing the victim’s body to their family to allow a funeral to take place, particularly when the investigation is lengthy and an arrest is not made for some time.

The principles behind this practice are centred around the right to a fair trial. This right is enshrined in law by the Human Rights Act 1998 but the principles have formed part of our legal system since long before this legislation was enacted. At its core, the right to a fair trial requires equality of arms between the prosecution and defence and a presumption of innocence in favour of the accused. If the justice system does not reflect these principles then concerns arise from both a moral and legal perspective.

An important aspect of equality of arms in a criminal prosecution is that the accused has access to the evidence against them. This means that they must have the opportunity to consider and challenge this evidence and the prosecution’s case. An independent post mortem ensures equal access to one of the most important sources of evidence in a murder case. The difficulty with this, and the difference from other physical evidence, is that the family of the victim is prevented from moving forward with the steps which would normally follow a death. These steps, and the treatment of human remains more generally, have a particular cultural and emotional significance which makes the process even more distressing.

The rights of a victim’s family are afforded protection in situations like this but the position is complex. The Court of Human Rights in Strasburg has interpreted the right to a family life in a manner that includes the right to bury family members. There is also protection afforded where there is interference with religious requirements surrounding burial or cremation. However, the distinction between these rights and the right to a fair trial is that they are not absolute and interference is permitted in certain circumstances, including for the protection of the rights of others and in the interests of public safety.

It is easy to see that there is a public interest in investigating a murder and successfully prosecuting an offender. Therefore the justification for the initial delay in releasing the body, while the first post mortem takes place, is clear. The point at which it becomes more contentious is when a victim’s family has to wait months or even years to hold a funeral due to the time it takes for an arrest to be made and an individual to be charged. In these situations it can seem as though the interests of the accused are being favoured over those more deserving of sympathy and justice.  However, the presumption of innocence does not allow criminal procedure to make such judgements.

The law must treat an accused person as innocent until they are found guilty by a jury or judge. This means that procedures cannot be developed on the assumption that an individual charged with murder actually committed the crime. If an investigation prejudices the presumption of innocence or leads to an unfair trial in some other manner then the verdict risks being quashed on appeal at a later date.

The interests of ensuring a fair trial and the interests of a victim’s family may seem to be at odds in the investigation and prosecution of an unlawful death when it comes to the Procurator Fiscal allowing the body to be released. However, an unsafe conviction also has the potential to cause further distress to the relatives of a victim.

In Scotland, the issue could be one of proportionality. While there are justifications for a second post mortem taking place, the additional distress and grief suffered when families have to wait several months to bury a loved one is surely something which cannot be ignored. Respect for the rights of an accused person is paramount to a successful criminal justice system, but the system should also make as little infringement on the rights of a victim’s family as possible. Indeed, COPFs confirm, in their guidance to bereaved families that every effort will be made to respect their wishes in terms of post mortems and funeral arrangements.

In February this year, the Lord Advocate confirmed that a review of protocols is being carried out to enable more effective consultation between pathologists instructed by the Crown and Defence. One of the aims of such consultation would be to reduce the delays in releasing a victim’s body to their family by enabling the defence to reach a quicker decision on whether a second post mortem is required.

While the current review may well improve the situation for some it does not seem to address the issue of delays where no arrests have been made. In England, if no arrest is made within 28 days, a second post mortem will be conducted by an independent pathologist and the report stored for use by the defence if someone is later charged in relation to the death. When compared with the Scottish procedure this raises the question of whether there is a better way to balance the competing interests which arise following an unlawful death than our current system of criminal investigation.

Blog by Amy Houghton, Solicitor

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