Date lodged: 22 November 2018
To ask the Scottish Government, further to the answer to question S5O-02579 by Humza Yousaf on 21 November 2018, whether it considers that the new protocol announced recently by the Crown Office and Procurator Fiscal Service aimed at speeding up the release of the bodies of murder victims will have the intended effect, and what its position is on the reported views within the legal profession that the problem is a lack of pathologists.
Answered by: James Wolffe QC 3 December 2018
In consultation with the Law Society of Scotland, the Faculty of Advocates and Forensic Pathologists, COPFS reviewed post mortem examination protocols.
The review recognised the right of accused persons to examine and test the evidence against them, including pathology evidence. The review recognised the professional obligation on the defence to ensure that an accused’s defence is properly investigated and conducted and that any failure to meet this professional obligation may result in a successful appeal against conviction.
However, the review also recognised that in all but exceptional cases, a second invasive post mortem examination of the deceased’s body may be of limited evidential value. The review noted that, in all but exceptional cases, the evidence of the Crown post mortem examination could be properly tested and challenged by the defence through a defence pathologist’s expert examination of the post mortem findings, including samples where relevant, and opinion as opposed to a second invasive post mortem examination.
The review concluded that a Consultation Protocol, supporting effective consultation between pathologists instructed by the Crown and defence may deliver improvements. Effective consultation would support an informed defence decision as to whether a second invasive post mortem examination was required and may reduce not only the number of defence examinations required but also delays in the return of deceased persons to their families, reflecting the views of families.
Following positive discussions with Forensic Pathologists, the Law Society of Scotland and the Faculty of Advocates, the Consultation Protocol has been published.
COPFS will monitor the impact of the Consultation Protocol, including both the timelines in relation to release of bodies in suspicious deaths and the number of post mortem examinations instructed by the defence.