In Scotland a murder victim’s body must be released by the Procurator Fiscal before any funeral arrangements can take place. In some cases this may result in the body being required to be kept for a long period of time. Primarily, this is to allow the defence the opportunity for a second post-mortem to be carried out.
This system differs from the coroner system operating in England and Wales. Under that system, if no-one has been charged and the police do not expect to make an arrest within 28 days, the coroner will arrange for a second post-mortem to be carried out by an independent pathologist. This second post-mortem “will allow the coroner to release the body and retain the report for use by the defence if, in due course, an arrest is made and charges to be brought.” (https://www.cps.gov.uk/legal-guidance/coroners)
In 2016, the first Chief Coroner proposed a scheme that would pass control of decisions on second post-mortems where criminal charges are brought to a Crown Court judge. The essential elements of the proposed scheme were outlined in the Chief Coroner’s annual report 2016-17:
- Comprehensive first post-mortem examination by forensic pathologist; fully recorded and documented
- Right of a defendant to a desktop review of pathologist’s findings and conclusions
- Requests for further post-mortem examination to be decided by judge in Crown Court proceedings; guidance to be given to Crown Court judges
- Where there are no criminal proceedings, coroner to review options with pathologist and police
- Release of the body by coroner as soon as possible
- Bereaved families to be informed of the process at all stages.
Our experience
My brother was murdered in January this year. To date, no-one has been charged with his murder and we have not been given permission to carry out funeral arrangements. While we fully understand that Procurators Fiscal have a job to do, it seems barbaric to allow my relative, and the relatives of others in similar situations, to decompose in a mortuary for the right of the defence to have a post-mortem carried out. Why can this not be carried out independently, as it would be in England, and allow release of a body for burial or cremation?