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  4. Faculty proposes alternative to bill on defence post-mortems

Faculty proposes alternative to bill on defence post-mortems

20th February 2019 | criminal law

A panel of forensic pathologists available to carry out defence post-mortem examinations of homicide victims has been put forward by the Faculty of Advocates, as an alternative scheme to a proposed member's bill in the Scottish Parliament.

Faculty was responding to a proposal by SNP member Gil Paterson, who seeks to counter the delays experienced by bereaved families when a body cannot be released for burial until a defence post-mortem has been carried out. His proposed bill would introduce a time limit on the instructing of defence post-mortems, perhaps 14 days with a possible extension of another 14 days.

In its response, Faculty says it is sympathetic to the issue the bill seeks to redress, but feels it does not address the "real issues" which cause delay in defence post-mortems – a shortage of suitably qualified pathologists.

"The view of Faculty, based on experience, is that delayed instruction of defence post-mortems is a direct result of a dearth of forensic pathologists available and willing to accept instructions to carry them out and prepare reports", it states.

"Solicitors and counsel are sensitive to the fact that the body of the deceased cannot be released until a defence post-mortem has been carried out. However, they are impotent in addressing this issue due to the lack of availability of suitable, qualified forensic pathologists."

Forensic pathologists are generally overworked, Faculty claims, and are contracted to give priority to the police and the Crown. In addition, Scottish Legal Aid Board rates do not make it attractive to travel within Scotland to carry out their work. As a result, defence solicitors regularly have to seek and instruct pathologists from outside Scotland.

Another main problem is that if no suspect is identified, there is no defence solicitor who can instruct an examination for the defence.

The reponse continues: "Faculty observe that the solution may lie in a system where, upon completion of the Crown post-mortem, a defence post-mortem is instructed from a panel of forensic pathologists overseen by their professional body, the Royal College of Pathologists (RCP), irrespective of whether a suspect has been identified or not. This suggestion would require liaison with the Fellows of the RCP in order that they can indicate whether a panel of the type suggested is feasible [and Faculty recommends that input should be sought from the RCP before the draft proposed bill proceeds further].

"The instruction could emanate from the court if there is no suspect… the question of whether the court or SLAB (Scottish Legal Aid Board) bears the funding would require to be resolved."

In relation to time limits, the Faculty adds that if a suspect has been identified, the defence post-mortem should take place within 21 days of the Crown post-mortem. If no suspect has been identified, it should be 28 days "and the body could be released thereafter, avoiding the prolonged detention of bodies when no suspect has been identified and thus no second post-mortem can be instructed".

Click here to view the full response.

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