Postmortems in criminal cases

What is a postmortem?

A postmortem is carried out in circumstances where the cause of death is unknown, unnatural or occurs whilst in state detention. A postmortem is routine where murder is alleged. These are performed by coroners who are appointed by the local authority and are independent judicial officers.

Under section 5 of the Coroners and Justice Act 2009, an inquiry will be held to ascertain:

• Who the deceased was;
• How, when and where the deceased came by his or her death; and
• The particulars (if any) required by the Births, Deaths and Registrations Act 1953 to be registered concerning the death.

It is often the case that the only way a coroner may establish the medical cause of death, or how the deceased came by his death is through a post-mortem examination. There is no legal definition as to what a post-mortem examination is, but it may include external examination of the body, testing on organs or tissue samples, or obtaining toxicology reports.

When will a second postmortem be instructed?

A second post-mortem is common in suspected homicide cases. It is usual for a second to be held where there is an identified suspect or there is a request by the police to hold a second examination when a suspect may be identified but not charged.

A second port-mortem will be carried out by a different pathologist, considering the original report and to then agree or challenge the original report’s conclusions.

Who arranges a second postmortem?

The Chief Coroner has issued guidance on postmortem examinations and makes clear that it is for the coroner to decide whether to commission a first or second post-mortem examination. It would also be for the coroner to decide whether a second examination would be carried out on the instruction of an interested party.

There is no automatic right to a second post-mortem examination, even in homicide cases. It is often a request made by defence solicitors for a second post-mortem examination to be conducted, although bereaved families may also make the request.

The guidance suggests that a desktop review of the evidence of the initial examination will be sufficient in most cases, and it is for the defendant to satisfy the coroner that a second examination is required.

The coroner must carefully consider any request for a second-post mortem. In the event of either granting or refusing the request, clear reasons must be provided. Where a second examination is permitted, it should be undertaken as quickly as possible, ideally within 28 days from death.

Do the defence have any input into a second postmortem?

The defence may seek to have a second post-mortem examination and if permitted by the coroner, the defence must usually fund this. An application would be made to the Legal Aid Agency in legally aided funded cases to cover such costs.

A full examination may not be required, and the defence may direct that only certain aspects of work need to be undertaken, for example analysis of organs or tissue. The defence can also make a recommendation as to the pathologist who will conduct a second post-mortem.

Contact our serious crime solicitors

Olliers are a leading law firm specialising in defending allegations of murder and manslaughter and we have significant experience of defending those charged with murder.

Should you require specialist representation for yourself or on behalf of someone else in a case where a second postmortem may be required, please contact our specialist team on 0161 834 1515, by email to info@olliers.com or complete the form below.