‘It's All About Justice’: Bodies, Balancing Competing Interests, and Suspicious Deaths

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Published date	01 December 2018
DOI	http://doi.org/10.1111/jols.12130
Date	01 December 2018

JOURNAL OF LAW AND SOCIETY

VOLUME 45, NUMBER 4, DECEMBER 2018

ISSN: 0263-323X, pp. 563±88

`It's All About Justice': Bodies, Balancing Competing

Interests, and Suspicious Deaths

Imogen Jones*

This article draws upon a series of interviews with Home Office

Registered Forensic Pathologists to understand how they view and

balance competing interests in a deceased body. The actions and

professional ethos of this small group of doctors who carry out

autopsies in suspicious death cases have very real consequences for

both the living and dead. We need to understand the decisions that are

being made about our bodies and the remains of those who matter to

us, what motivates these and whether they stand up to scrutiny. It is

argued that retributive justice both inspires the pathologists and

justifies the distress that investigations of suspicious death can cause

the bereaved. This approach aims to treat all parties humanely and

with sensitivity, but without compromising the need for findings of

criminal wrongdoing to be based on evidence and as the outcome of a

fair legal process.

INTRODUCTION

Death brings many potential complications for those left behind. Most of

these relate to the practicalities of disposing of a body in a way that is

compatible with public health and ensuring the dignified treatment of human

remains. As such, deaths must be certified and registered

and bodies dis-

563

*School of Law, Liberty Building, University of Leeds, Leeds LS2 9JT,

England

i.jones2@leeds.ac.uk

Thanks to Margot Brazier, Muireann Quigley, and David Gurnham for comments on

earlier drafts. I am indebted to Dean Jones for his support and guidance. To Dave, my

gratitude for indulging me and for looking after the baby whilst I was interviewing.

Finally, to the anonymous reviewers, the piece is much better for your input. All errors, of

course, remain my own.

1 Births and Deaths Registration Act 1953, ss. 18±24.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

posed of in a `lawful and decent'

manner. However, where a person dies in

unexpected or suspicious circumstances, there are additional hurdles. One of

the most unsettling of these can be the decision that the body must be

autopsied.

In this article, I draw upon a series of interviews with Home Office

Registered Forensic Pathologists (HORFPs) to understand how they view

and balance competing interests in a deceased body. A HORFP will usually

only become involved in a death if it is deemed suspicious. They are

consultant doctors who have received specialist training in forensic tech-

niques and other skills required by the criminal justice system.

They are the

only people authorized to carry out initial autopsies in these cases. Such

post-mortems represent a small proportion of the total autopsies conducted in

England and Wales, the majority being coronial and hospital autopsies, but

they are amongst the most invasive. If the circumstances of a death permit

it,

there will be an external examination after which the pathologist will

open the chest cavity, examine tissue, and take toxicology samples. Whole

organs are often removed for later specialist examination. The brain is

usually examined. Photographs will be taken throughout, and the internal

autopsy may be supplemented by scans.

In many cases there will be a

second autopsy, carried out by an independent pathologist. It is only after

these processes are complete that the body will be released, albeit absent

various retained tissue samples.

Understanding why and when these procedures are necessary is aided by

situating forensic pathology within its politico-legal context. Much of a

HORFP's workload involves suspected homicides. Yet crimes, including

homicide, hurt wider society as well as individuals. As Duff argues, some

crimes `take individuals as their direct victims, but count as ``our'' wrongs

because they violate our public values, and because we share them with the

victim: our concern for the victim as our fellow citizen makes them our

business.'

Criminalization can therefore be located within a broader

framework, where the balancing of self-determination and collective welfare

is evident. This is consistent with the communitarian context from which the

criminal justice process gains its authority. Following Norrie, `the core of the

564

2 See Buchanan v. Milton [1999] 2 FLR 844, at 845±6, per Hale J.

3 Such as expert witness training provided by the Home Office.

4 It may be that the means of killing, such as that seen in suicide bombings, has left

the body incomplete and unable to be subject to traditional autopsy.

5 Current standards for a forensic autopsy are set out in combined guidance from the

Home Office, the Forensic Science Regulator, the Department of Justice, and the

Royal College of Pathologists: see their `Code of Practice and Performance

Standards for Forensic Pathology in England, Wales and Northern Ireland' (2012),

in-england-wales-and-northern-ireland>.

6 A. Duff, `Responsibi lity, Citize nship and Crim inal Law' in Phi losophical

Foundations of Criminal Law, eds. A. Duff and S. Green (2011) 139.

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philosophy behind the criminal law is a moral individualism which pro-

claims that for the state to intervene against the individual, it must have a

good and clear licence to do so.'

Gaining evidence from the body is one

way in which the state achieves this. Simultaneously, the success of the

justice system is contingent upon the cooperation of wider society, including

the bereaved. Yet it is the bereaved who are most likely to be distressed by

the autopsy process.

Despite the significance of forensic autopsies for individuals and society

alike, there is an absence of knowledge regarding how forensic pathologists

view the deceased body

and the implications of this for both the justice

process and the bereaved. Timmermans has argued that forensic pathologists

in the United States `promise an answer to suspicious and unexpected dying

by mobilising values of altruism and justice.'

I found that when HORFPs

talk about their work, including the distress experienced by the bereaved,

they felt vindicated because they believed that they were promoting `justice'.

After outlining my methodology, I set out the legal framework which

determines when a body will be subject to a forensic autopsy. Next, I

identify the deceased, the bereaved, and wider society as being the key

cohorts who, in this context, have interests in a body. We will see that the

parties may be conflicted. For example, the family of a homicide victim may

contemporaneously desire the prompt disposal of the body, whilst also

wishing for there to be sufficient evidence to ensure that the killer be subject

to criminal sanctions. There are two key areas of contention. First, many

want a body to be buried or cremated shortly after death. Second, invasive

autopsy in itself and associated tissue retention often cause distress. HORFPs

are aware of the potential for their work to trigger dissent but maintain that

these concerns must be put aside when demanded by the interests of justice.

One area of disagreement amongst the HORFPs was whether second post-

mortems can be justified. Here, the interests of the accused come to the fore,

but where the utility of the autopsy to assist in accurate fact finding was

doubted, we see scepticism as to whether due process should take priority

over the interests of the deceased and the bereaved. Thus, by advancing

understanding of this understudied

intersection of medicine and law, we

565

7 A. Norrie, Crime, History and Reason (2014) 13.

8 There is increasing interest in the relationship between medicine and criminal law:

see the three volumes of the Bioethics, Medicine and the Criminal Law series.

9 S. Timmermans, `Death Brokering: Constructing Culturally Appropriate Deaths'

[2005] Sociology of Health and Illness 993, at 1006.

10 Although there is work on the social context of death, the role of medics assisting

the pre-trial criminal process where death occurs stands out as an omission (see,

generally, B. Turner (ed.), Routledge Handbook of Body Studies (2012)). On the role

of coronal inquests, see R. Bray and G. Martin, `Exploring Fatal Facts: Current

Issues in Coronial Law, Policy and Practice' (2016) 12 International J. of Law in

Context 115. On the use of the criminal law to regulate medicine, see M. Brazier and

S. Ost, Medicine and Bioethics in the Theatre of the Criminal Process (2013). On

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can begin to untangle the reasons why state and collective interests can

legitimately take precedence over those of individuals. It is not my purpose

to provide a detailed philosophical or normative account of justice. Instead, I

argue that retributive justice, understood as fairness based on accurate

assignment of wrongdoing and proportional punishment, is a useful device

for understanding the ways in which various, sometimes competing, claims

to dead bodies are balanced in this context.

In summary, this article contributes to the literature on medicine and law by

examining how this elite group of doctors view deceased bodies and the

competing interests in them. The acts of HORFPs have very real consequences

for both the living and dead. It is of social, political, and legal importance that

we can understand the decisions that are being made about our bodies and the

remains of those to whom we have ties of love and affection, what motivates

such decisions, and whether these stand up to scrutiny.

METHODS

This article draws upon semi-structured interviews with 11 HORFPs carried

out in 2016. At the time of writing, this represented just under a third of the

35 HORFPs in England and Wales. This method was chosen because of the

sensitive nature of suspicious death investigation and because of the need to

be able to probe nuances in the answers provided. It is also useful in

accessing experts who are often hard to reach, in this case because of their

occupational structure and elite status.

Access was gained via several

routes. Where HORFPs have public contact details, they were emailed with a

summary of the project and a request for participation. In addition, an email

request was sent out by a gatekeeper at the Home Office. Two participants

were also accessed via an existing police contact. All HORPFs who

responded were interviewed. This approach enabled me to speak to at least

one HORPF from five of the seven practice areas.

Ethical approval was

granted by the University of Birmingham research ethics committee.

Participants were informed that the focus of the study was the perceived

status of the dead and the interests of other parties in the body. Whilst they

were prompted to discuss these areas, interviewees were also given space to

draw on their own experiences and to direct the discussion towards other

566

the historical relationship between dissection and crime, see E. Hurren, Dissecting

the Criminal Corpse: Staging Post-Execution Punishment in Early Modern England

(2016).

11 W. Neuman, Basics of Social Research: Quantitative and Qualitative Approaches

(2012).

12 These are: East Midlands, Greater London and South East and West Midlands,

Humberside and Yorkshire, Mid and South Wales and Gloucestershire, North East,

North West, West and South West (in practice this is six areas, as Yorkshire and

Humberside are serviced by other practices as required).

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issues and themes that they considered important. On average, the interviews

lasted around an hour. The interviews were recorded and transcribed

verbatim. I organized and coded the interviews in NVivo and used thematic

analysis to identify issues of interest.

Whilst the material proved to be very rich, the strength of the conclusions

that can be drawn is limited by the scale of the study. I do not claim to be

quantitatively representative. The views expressed here therefore indicate

these practitioners' attitudes and beliefs. It provides valuable insights into

the factors and practices that impact on the treatment of both the dead, the

bereaved, and society, when a person dies in suspicious circumstances. The

quotations used in this article have been chosen as they represent the themes

that emerged when the HORPFs talked about the interests in the bodies of

the (suspiciously) dead. These speak to the legal framework within which the

work of HORPFs is situated. I therefore begin with a brief outline of this

juridical landscape.

HORPFS AND SUSPICIOUS DEATH INVESTIGATION

The Coroners and Justice Act 2009 provides the primary legal framework for

dealing with unexpected death. Section 1(2) states that a coroner has a duty

to investigate a death where a) the deceased died a violent or unnatural

death; b) the cause of death is unknown; or c) the deceased died while in

custody or otherwise in state detention. The goals of this investigation are

modest and are set out in s. 5 of the 2009 Act. The coroner is tasked with

establishing the identity of the deceased, how, when, and where the death

occurred, and the information required to register the death.

The coroner

does not have to order a post-mortem; however, Carpenter and Tait suggest

that they are often likely to do so. They attribute this to a lack of confidence

due to an absence of medical training and because doing so deflects

responsibility for errors to the pathologist.

Nevertheless, in England and

567

13 V. Braun and V. Clarke, `Using thematic analysis in psychology' (2006) 3

Qualitative Research in Psychology 77.

14 Space does not permit coverage of all relevant aspects of the law. For a recent and

insightful discussion see H. Conway, The Law and the Dead (2016). Conway notes

that the failure to take a relational approach to the decision to order an invasive

autopsy could be `indicative of a wider disconnect between medico-legal constructs

of the body as a mere corpse and the connective attachments that the bereaved have

towards their dead' (p. 18). The key texts in coronial law and practice are C. Dorries,

Coroners' Courts: A Guide to Law and Practice (2014, 3rd edn.) and P. Matthews,

Jervis on the Office and Duties of Coroners (2014, 13th edn.). An overview of the

key elements of the 2009 Act can be found in T. Luce, `Coroners and Death

Certification Law Reform: The Coroners and Justice Act 2009 and its Aftermath'

(2010) 50 Medicine, Science and the Law 171.

15 B. Carpenter and G. Tait, `The Autopsy Imperative: Medicine, Law, and the

Coronial Investigation' (2010) 31 J. of Medical Humanities 205.

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Wales the number of autopsies being ordered is steadily decreasing. In 2016,

autopsies were ordered in 36 per cent of all cases reported to a coroner,

representing a 25 per cent drop from the proportion ordered in 1995 (61 per

cent).

I return below to the pressures to reduce the number of invasive

autopsies.

This legal framework should be understood as one product of a series of

incidents and reports which preceded it. 2003 saw the publication of both the

Luce Review of Death Certification

and the Third Report of Smith's

Shipman Inquiry,

also considering the death certification process. Both

suggested various improvements, including the creation of a national Chief

Coroner and more formal recognition of the rights of the bereaved. Whilst

not all of Luce's or Smith's recommendations were adopted, these arguably

played an important role in the increasing recognition of the interests of the

bereaved in death investigation.

More recently, both the 2015 Hutton

Review of Forensic Pathology

and the 2017 Angiolini Review of Deaths

and Serious Incidents in Police Custody

have highlighted continuing

deficiencies throughout the death investigation system. Space prohibits a full

discussion of these, but their potential to have affected what professionals

perceive as the `right' thing to say about death investigation cannot be

discounted. I refer to these various publications in my discussion of the

competing interests in the body below. Before doing this, however, I explain

the role of HORFPs in death investigation.

Most HORFPs are self-employed, working within geographical practice

groups, although a handful are still employed by the NHS. Despite their fee

being paid by the police, they are independent of them. They are regulated by

the Home Office Forensic Pathology Unit (of which the Pathology Delivery

Board is a part), the General Medical Council (GMC), and the Royal College

of Pathologists and are subject to regular revalidation processes.

Whilst the coroner will be informed of the death and retains jurisdiction

over the body, it is the police who conduct the initial investigation. The

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16 Ministry of Justice (MoJ), Coroners Statistics Annual 2016: England and Wales

(2017).

17 T. Luce, Death Certification and Investigation in England, Wales and Northern

Ireland: The Report of a Fundamental Review (2003; Cm. 5831) (the `Luce

Review').

18 J. Smith, The Shipman Inquiry third report: death certification and the investigation

of deaths by coroners (2003; Cm. 5854). Shipman, a GP, is thought to have killed at

least 215 of his patients over a 24-year period.

19 See M oJ, G uide to Coro ner Servi ces (2014) , at //asset s.publis hing

.service.gov.u k/government/u ploads/system/ uploads/attach ment_data/fil e/363879/

guide-to-coroner-service.pdf>.

20 P. Hutton, A Review of Forensic Pathology in England and Wales (2015).

21 E. Angiolini, Report of the Independent Review into Deaths and Serious Incidents in

Police Custody (2017).

22 See s://w ww.g ov.uk /guid ance/ fore nsic- patho logy- role -with in-th e-ho me-

office>.

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investigation will be converted to a full homicide investigation if they

conclude that potentially there was third-party involvement in the death.

such circumstances, the coroner's investigation is suspended pending the

result of the police investigation and any court proceedings.

Police deci-

sion making is therefore crucial in determining whether a body will be the

subject of a forensic autopsy. Should the death be determined to be a

homicide, it is likely that in addition to carrying out the post-mortem (or,

potentially, a second post-mortem for the defence) the HORFP will be

required to provide expert evidence during the trial.

Though the need to

appear credible at court is likely to impact on HORFP decision making (for

example, being able to defend which tests they did or did not carry out), it is

worth noting that the majority of the HORFPs in my sample tended towards

being dismissive of their role at court. For example, FP 3 told me that:

Sometimes it's overplayed, the importance of our job. Sometimes it gets to

court just for a bit of theatre, just to liven things up for the jury. I say [to the

barrister], `What do you need us there for?' `Well, the jury like to see a

forensic pathologist'.

We will see that HORFPs are alert to the complex range of issues that are

engaged by the context in which they work. These are that a death is deemed

suspicious, that their work has the purpose of advancing criminal justice, and

that invasive autopsies can be distressing for the bereaved. These lead to a

perceived, and real, hierarchy of interests, topped by the needs of retributive

justice.

INTERESTS IN THE DECEASED BODY: RECONCILING COMPETING

CLAIMS

During my interviews, three main cohorts were identified as having interests

in the deceased body. These were the deceased person, the bereaved (most

commonly being the family and/or next of kin), and society. Whilst I separate

these for discussion, this should not be taken to imply that they never overlap.

However, it is only where clashes between them emerge that we are forced to

consider whether a hierarchy of interests does, and should, exist.

569

23 D. Jones, `Fatal Call ± Getting Away with Murder: A Study of Influences of

Decision Making at the Initial Scene of Unexpected Death' (2017) PhD thesis,

University of Portsmouth.

24 A finding of guilt will replace an inquest.

25 For discussion of the role of scientific expertise in criminal trials, see A. Roberts,

`Reje ctin g Gene ral Ac cepta nce, C onfo undi ng the Ga teke eper : The Law

Commission on Expert Evidence' [2009] Criminal Law Rev. 551; G. Edmond and

A. Roberts, `Procedural Fairness, the Criminal Trial and Forensic Science and

Medicine' (2011) 33 Sydney Law Rev. 359; P. Roberts (ed.), Expert Evidence and

Scientific Proof in Criminal Trials (2016).

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1. The deceased person

The question of whether a deceased body has interests is contentious and has

been the subject of extensive debate.

This point is relatively unimportant in

the current context; the HORFPs focused on whether the ante-mortem person

had interests in their body's posthumous treatment. This version of post-

humous harm has been widely recognized within the philosophical literature.

For example, Feinberg argued that some interests can survive death,

allowing the person `who was', rather their body, to be harmed.

However, I

would suggest that the language of harm fails to reflect the duty that forensic

pathologists feel towards those they autopsy. My interviewees made a strong

connection between the body and the deceased person. This is not to say that

they accord the corpse personhood

but, rather, that they considered them-

selves to have duty to act with care and respect towards the dead person via

their treatment of the body.

FP7: I think with any deceased person, they still have humanity, they were a

human being, and so you can't just treat them as if they were a piece of steak

on a chopping board, they're still a person.

FP11: I view every dead body that I look at as a patient . . . I treat them with

respect.

A parallel can be drawn here with the use of DNA in identifying historical

remains.

Leach-Scully argues that the desire to identify the dead can be

explained by an `ethic of care' whereby family members spoke of pursuing

identification `for' the deceased person. This leads to the proposition that:

to act in such a way that the meaning of a life can be changed is to care for that

person's life, and not just for the memory of that life. Casting the best

backward light on a life would still count as meaningful care even if there was

no one left alive to hold a memory of the dead person.

Many HORFPs appear to be motivated by something akin to this. Aware that

they primarily deal with suspicious deaths,

they report that the dead person

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26 For example, Harris argues that posthumous interests are not `person affecting',

meaning that they are neither good nor bad for the person: see J. Harris, `Organ

procurement: dead interests, living needs' (2003) 29 J. of Medical Ethics 130.

27 J. Feinberg, Harm to Others: The Moral Limits of the Criminal Law (1987) 70. See,

also, G. Pitcher, `The Misfortunes of the Dead' (1984) 21 Am. Philosophical Q. 183.

28 Personhood is a complex and far from settled concept. For instructive discussion,

see N. Naffine, `Who are Law's Persons? From Cheshire Cats to Responsible

Subjects' (2003) 66 Modern Law Rev. 346.

29 J. Leach Scully, `Naming the Dead: DNA-based Identification of Historical

Remains as an Act of Care' (2014) 33 New Genetics and Society 313.

30 id., p. 321.

31 The move away from public employment means that the majority of HORFPs do not

carry out coronial autopsies but do offer opinion work in relation to injuries to the

living in both criminal and family cases. They may appear as a witness at an inquest

where the death was initially deemed suspicious and therefore the subject of a

forensic autopsy.

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is reliant on them to speak on their behalf.

This is reflected in the notion

that their role is to be the `advocate for the deceased'.

FP1: I have a duty to the deceased. Deceased people can't speak anymore.

FP8: . .. we just try to tell the tale of what's happened to that person so we're

acting for them in what we do because we're trying to be an independent

person trying to tell the story that that deceased person can't tell themselves.

This speaks to the nature of the criminal justice context ± it is impossible to

completely detach from the desire to facilitate the `right' result for the

deceased person. By playing a part in allocating responsibility for an indivi-

dual's death, HORFPs consider themselves to be a mouthpiece for the

deceased person and their entitlement to `justice'. However, as we see

below, where there is a conflict, any commitment to the deceased is con-

sidered secondary to the needs of justice.

2. The bereaved

In the current context, it is important to recognize that the bereaved are often

invested both in the body's treatment and criminal justice outcomes. Despite

there being no legal right to inherit or own a dead body,

an emphasis on the

still living is consistent with wider treatment of the dead.

Throughout the

remainder of this article, it will become apparent that despite the rhetoric that

HORFPs `speak' for the dead, it is the living who are the primary locus of

concern.

The experiences and views of the bereaved have gained increasing

prominence in discourse around death investigation. For example, the

Angiolini Review took evidence from family members; its report includes a

chapter on better supporting the family during the death investigation

process.

Similarly, the activism of family members contributed to quashing

of the original Hillsborough inquest verdict of `accidental death'.

In the

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32 The notion that it is the medics role to `speak for the dead' was developed by Jones:

see D.G. Jones, Speaking for the Dead: Cadavers in Biology and Medicine (2000).

33 Debates regarding when there is a legal duty to respect for ante-mortem wishes

regarding disposal of a body were rehearsed recently in Ibuna v. Arroyo (2012)

EWCH 428 (Ch).

34 This is particularly so regarding the disposal of bodies, see Conway, op. cit., n. 14

and R. Nwabueze, `Legal Control of Burial Rights' (2013) 2 Cambridge J. of

International and Comparative Law 196.

35 Angiolini, op. cit., n. 21, ch. 15. A more proactive role for families in the autopsy

process is proposed, including having their own clinician participate in the autopsy

process or a state-funded second post-mortem. A case could be made that these

mechanisms would not be detrimental to suspicious death investigations.

36 Details of the Hillsborough Inquests can be found at

.independent.gov.uk/>. See, also, the Right Rev . J. Jones, `The patronising

disposition of unaccountable power': A report to ensure the pain and suffering of

the Hillsborough families is not repeated (2017) HC 511.

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context of suspicious deaths, greater official recognition has been given to

the experiences of the family of homicide victims. In her `Review into the

Needs of Families Bereaved by Homicide', Casey argued that:

. .. although bereaved families in no way want to stand in the way of bringing

a perpetrator to justice . .. the way that the system operates can leave families

trembling in its wake. Bereaved families lose all control over their loved one

as the Crown appropriates the body and determines when it can be returned for

burial.

Thus, in suspicious death cases, HORFPs' work constitutes one cog in the

much larger criminal justice and death investigation machinery. Such is the

concern for families of homicide victims that they are given the same rights

as victims of serious crimes under the Code of Practice for Victims of Crime,

including those to support and information.

Yet these `rights' are limited

and aim to make the criminal process more tolerable.

They do not entitle a

deceased person's family to interfere with the investigatory process

since

their views are considered subsidiary to the needs of the state. Thus, the

experiences of the bereaved are acknowledged, whilst their impact on the

evidence gathering process is limited. This is reminiscent of Harris's

argument, in the context of organ retention debates, for balancing of the

weight of moral claims to the body. He argued that interests such as religion

and family life may be trumped by more pressing needs (like scientific

advances or, in the current case, justice).

This balancing of state and individual interests was evident in the way that

the HORFPs spoke about the bereaved. They are acutely aware that post-

mortems can be distressing, especially for those already coping with

unexpected loss. Although they did not explicitly mention it, HORFPs are

likely to be sensitive to the political environment regarding the impact of

death investigation. We see statements such as:

FP8: . . . the emphasis is always on the person who's left behind so it's the

impact on the relatives, the next of kin as opposed to them themselves [the

deceased].

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37 L. Casey, Review into the Needs of Families Bereaved by Homicide (2011).

38 See .

39 For a discussion of procedural rights for victims, see H. Fenwick, `Procedural

``Rights'' of Victims of Crime: Public or Private Ordering of the Criminal Justice

Process' (1997) 60 Modern Law Rev. 317; S. Walklate, Imagining Victims of Crime

(2007) 107±9.

40 For analysis of the impact of the death investigation process in Australia on families,

where Carpenter at al. note that `grief is compounded by trauma', see B. Carpenter,

G. Tait, and C. Quadrelli, `The Body in Grief: Death Investigations, Objections to

Autopsy, and the Religious and Cultural ``Other'' ' (2014) 5 Religions 165, at 171.

England and Wales share many commonalities with Australia, including the

exclusion of the family from this initial stage of the criminal process.

41 J. Harris, `Law and regulation of retained organs: the ethical issues' (2002) 4 Legal

Studies 527, at 540±5.

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This brings attention to the fact that the physical act of invasive autopsy and

the retention of tissue for further testing, both of which are discussed in more

detail below, may be acutely upsetting to secondary victims. Unlike Harris,

in rhetoric at least, the HORFPs give weight to the deep emotional

significance of the dead body to the still living. Failing to recognize this

would, as Brazier suggests, imply `a society in which cold rationality drives

all human actions'.

It would neglect to appreciate the social context in

which death occurs.

In addition to the unpleasantness of evisceration, the work of forensic

pathologists can interfere with plans for disposal of the body and run counter

to religious procedures. These factors were highlighted by the recent

Angiolini Review which recommended greater rights for the family of those

who die in police custody. These included, where practicable, access to the

body prior to post-mortem, representation at the post-mortem, and the right

to request a second post-mortem.

Whilst most deaths in custody are not

deemed suspicious, they are still unexpected, politically charged, and require

specialist and official investigation, not least because of the potential for the

state to have prevented the death. Moreover, the Code of Practice and

Performance Standards for Forensic Pathology highlights the destructive

nature of the autopsy, requiring that pathologists consider the best time to

facilitate family viewing of the body.

It is clear, then, that suspected homicide can lead to conflict, whereby the

views of the family are posited against the demands of the justice system. As

FP 3 commented, `their family are potentially secondary victims . . . But

actually your role is one of, sort of, the societal interest in justice being

done.' However, it is important to note one further reason for limiting the

impact of familial requests. As Angiolini noted, (regarding deaths in

custody):

There are valid, forensic and legal reasons why [family members may not be

able to touch the body prior to autopsy]. Some important samples may be

taken from the body by pathologists at the post-mortem, as well as at the scene

of the death, therefore allowing access to the body beforehand would risk

contamination of forensic evidence and compromise the reliability of the

results.

Every forensic pathologist in my sample highlighted that the interests of the

deceased, and indeed `justice', may be directly at odds with those of (some)

family members. In the words of FP9: `Most people are murdered by

somebody they know and indeed love and the interests of the two, the

deceased and that family member may be different.'

573

42 M. Brazier, `Retained Organs: Ethics and Humanity' (2002) 22 Legal Studies 550, at

551.

43 Angiolini, op. cit., n. 21, paras. 16.17±16.26. See, also, recommendations 33±45.

44 Code of Practice, op. cit., n. 5, para. 6.2.2.

45 Angiolini, op. cit., n. 21, para. 16.26.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

In the next section I discuss the concept of retributive justice, relating this

to the way in which the HORFPs in my sample understood the balancing of

potentially conflicting interests in a deceased body. I draw upon three

examples to demonstrate this. The first relates to objections to the invasive

autopsy itself. The second examines the circumstance where organs and/or

tissue are retained. Finally, I consider the impact of second (or defence) post-

mortems. In each of these, it is the experiences and values of bereaved

persons that potentially clash with the implications of a forensic autopsy.

3. Retributive (criminal) justice

The justice system is designed, as far as it is possible, to facilitate factually

correct decisions.

This ambitious goal should be understood as a response

to at least two interlinked features. First, it is situated within a broader liberal

political and moral system.

Second, the punishments meted out by the

system often involve an individual's freedom being severely curtailed. My

purpose here is not to detail these features. Nor does space allow detailed

discussion of criminal justice. Rather, I briefly consider the key features of

retributive justice, as it is these which appear to underpin the attitudes of

HORFPs to conflicting claims to deceased bodies. Retributive justice is

based upon the belief that `an offender, having violated rules or laws,

deserves to be punished and, for justice to be re-established, has to be

punished in proportion to the severity of the wrongdoing.'

This relatively

simple concept contains two main elements: (criminal) wrongdoing

and

proportional punishment. If a suspicion of homicide is borne out, then a

grave crime has been committed. To establish this, an autopsy is often

necessary part of the investigation and evidence-gathering process. It would

be a gross injustice for a person to be convicted, and punished, for a crime

for which they are not responsible.

A fair, retributive criminal justice system must place a premium on both

accurately establishing the level of wrongdoing and providing evidence to

ensure that any punishment is proportional. This is the case across all crimes,

and types of evidence. For example, under s. 19 of the Police and Criminal

Evidence Act (PACE) 1984, the police can seize and retain evidence relating

574

46 A. Sanders, R. Young, and M. Burton, Criminal Justice (2010, 4th edn.) 1±2.

47 For example, M. Matravers, Justice and Punishment (2000); A. Norrie, Punishment

and Responsibility: A Relational Critique (2000).

48 M. Wenzel et al., `Retributive and Restorative Justice' (2008) 32 Law and Human

Behaviour 375, at 375.

49 See, generally, A. Simester and A. von Hirsh, Crimes, Harms and Wrongs (2011).

50 `Often' because there are some cases where the injuries and/or evidence may mean

that this is not the case.

51 There is a vast body of literature on miscarriages of justice. For discussion of these,

see H. Quirk, `Identifying Miscarriages of Justice: Why Innocence in the UK is Not

the Answer' (2007) 70 Modern Law Rev. 759.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

to an offence for `as long as necessary'. This could mean that if it retains

evidential value, a victim might be without his or her property for the dura-

tion of a trial. Dead bodies often have greater social, and personal, meaning

than most items of property. Yet in another sense, the body is no different to

any other piece of tangible evidence. It is both the subject and site of a crime;

the post-mortem is one form of evidence collection. Justice may, therefore,

demand that the interests of the deceased and bereaved are limited. As

Roberts and Zuckerman argue:

given the importance of arriving at the truth in criminal proceedings in order to

secure justice . . . penal law affords priority to the need to secure information

for the purposes of criminal adjudication over the convenience of citizens and

their competing interests.

Let us now turn to consider specific examples of the compromises involved.

AVOIDING INVASIVE AUTOPSY

Disquiet relating to dissection has a long history. From the seventeenth

century onwards, doctors realized that understanding of ill-health needed to

be grounded within an appreciation of anatomy. Social and religious mores

condemned dissection; people feared that being autopsied would prevent

their ascendance to the afterlife. One potential solution to this hinged on a

different link between crime and bodies. The Murder Act 1752 permitted an

additional sentence of dissection to follow an execution.

On occasion this

caused such public outrage that spectators rioted to try and save bodies from

this fate.

However, the supply of corpses for diss ection was still

insufficient, leading to the rise of the `Resurrectionists', who made a living

from exhuming bodies and selling them to physicians.

More recently, challenges associated with modern multi-faith society

have gained prominence. Of the three main religions practised in the United

Kingdom (Christianity, Judaism, and Islam),

Campbell argues that Islam

575

52 P. Roberts and A. Zuckerman, Criminal Evidence (2010, 2nd edn.) 307.

53 See R. Penfold-Mounce, `Consuming Criminal Corpses: Fascination with the Dead

Criminal Body' (2010) 15 Mortality 250.

54 Brazier and Ost, op. cit., n. 10, p. 22. The extent to which this was geographically

widespread is disputed by Hurren, op. cit., n. 10, p. 8.

55 See R. Richardson, Death, Dissection and the Destitute (2001). This marked the

beginning of an engaging jurisprudence concerning those who interfered with the

interment of bodies, see I. Jones and M. Quigley, `Preventing Lawful and Decent

Burial: Resurrecting Dead Offences' (2015) 36 Legal Studies 354; I. Jones, `A grave

offence: corpse desecration and the criminal law' (2017) 37 Legal Studies 599.

56 For a full breakdown of the figures see Office of National Statistics (ONS), `What

does the census tell us about religion in 2011?' (May 2013). Note that the proportion

of people who consider themselves to have no religion is now higher than that

associated with any given religious group.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

differs from Christianity and Judaism by concentrating on the themes of

`judgement and bodily resurrection'

as opposed to creation. Yet both Islam

and Judaism are widely interpreted to require prompt burial and for the body

not be mutilated.

This has implications for the acceptability of invasive

autopsy, which necessarily delays disposal, and involves major interference

with the integrity of the body. This section examines objections to the

internal examinations of the body. First, I discuss the potential for clashes

between the demands of justice and religious belief. Second, we are

reminded of the financial and regulatory context within which HORFPs

work, both of which may push towards invasive post-mortems.

1. Religious objections

The right to freedom of religion is protected under Article 9 of the European

Convention on Human Rights (ECHR). This right is qualified; under Art.

9(2), it can be subject to any limitation which is `necessary in a democratic

society in the interests of public safety, for the protection of public order,

health or morals, or for the protection of the rights and freedoms of others.'

Guidance was provided in R (Rotsztein) v. HM Senior Coroner for Inner

London North,

which concerned the body of an elderly Orthodox Jew who

died in hospital. First, there must be an established religious tenet that

invasive autopsy is to be avoided. Second, there should be a realistic pos-

sibility that the coroner can fulfil his or her duty by way of non-invasive

procedures. Third, the post-mortem must be capable of taking place without

delay. Fourth, any non-invasive techniques must not interfere with the

effectiveness of any later required invasive autopsy. Fifth, there should be no

good reason for the coroner to require an immediate invasive autopsy.

Finally, the use of non-invasive procedures must not pose additional cost

burdens on the coroner.

Under s. 5 of the Coroners and Justice Act 2009, the coroner must be

satisfied as to the identity of the victim as well as the time, location, and

manner of her death. At issue in Rotszein was the cause of death, but there

576

57 C. Campbell, `Religion and the Body in Medical Research' (1998) 8 Kennedy

Institute of Ethics J. 275 at 293.

58 See id. for a summary of religious doctrine regarding the treatment of the dead.

59 R (Rotsztein) v. HM Senior Coroner for Inner London North [2015] EWHC 2764

(Admin).

60 id., paras. 27±29. The case, and decision, were supported by the Muslim Council of

Britain, see at

autopsies/>. See, also, S. Leadbeatter and R. James, `How can we ensure that the

coroner's autopsy is not an invasion of human rights? (2018) 71 J. of Clinical

Pathology 27. In February 2018 the issue of delays in releasing bodies gained new

prominence when Mary Hassell, a senior coroner, said that she would not prioritize

bodies because of faith. This policy was held to be unlawful in Adath Yisroel Burial

Society v. HM Senior Coroner For Inner North London [2018] EWHC 969 (Admin).

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

was never any suggestion that the circumstances were suspicious.

Of this

eventuality, Mr Justice Mitting said, `a forensic autopsy in a homicide case

will either always, or almost always, be required and the need for it will

either always, or almost always, override any religious objection.'

As HORFPs deal primarily with suspicious deaths, there is no legal

ambiguity regarding whether religious objections should take priority.

Moreover, it appears that many Islamic and Jewish scholars now accept that

invasive autopsies are permissible where `necessary' (a suspected homicide

usually fulfilling this criterion).

Despite this, the HORFPs were acutely

aware that forensic autopsies can be the site of conflict. There was consensus

that the societal interests represented by the criminal justice system should

always outweigh religious considerations:

FP4: I don't see how you can consider people's beliefs and the wishes of those

around them when they die. You've got to balance the needs of the state, and

there will be cases where the needs of the state trump what is important to the

bereaved.

FP11: I can't remember in my career not doing an examination because of

religion . .. we will get people saying they're not happy, and we just carry on.

It causes problems in terms of body retention, and funerals, religious washing

and all sorts of stuff. But we just carry on. Because it's within the interests of

the criminal justice system.

This approach was also advanced in the 2015 Hutton Review of Forensic

Pathology. Hutton highlighted that a justice in a `fair and free' society must

treat all individuals alike.

However, where this was not compromised, he

favoured respecting the views and beliefs of the deceased and their family.

Whilst Hutton highlighted service provisions such as bereavement support,

information, and sensitivity,

some of my interviewees demonstrated a

willingness to go further. They spoke of accommodating the desires of the

bereaved in how they carried out their work:

FP5: . .. we do recognize that if a deceased has a particular view in life and/or

the family have a particular view from a religious point of view about the need

to minimize certain activities at post-mortem, or even non-dissection, then we

ought to try and facilitate that and accede to it.

577

61 For discussion of how coroners generally deal with decisions regarding ordering

autopsies, see Bray and Martin, op. cit., n. 10.

62 Rotsztein, op. cit., n. 59, para. 29. For a contrasting view, see Benteln who has

suggested that consent ought to be required for all autopsies as `whether a particular

crime is solved . .. seems relatively unimportant in comparison with the condition of

a person for eternity': see A. Benteln, `The Rights of the Dead' (2001) 100 South

Atlantic Law Q. 1005.

63 M. Mohammed and M. Kharoshah, `Autopsy in Islam and Current Practice in Arab

Muslim Countries' (2014) 23 J. of Forensic and Legal Medicine 80.

64 Hutton, op. cit., n. 20, p. 64.

65 id.

66 id.

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It is important to emphasize that the reasons provided for prioritizing justice

over religion did not appear to be grounded in dismissal of the importance of

religious views.

Rather, HORFPs believe that forensic autopsies are part of

a system in which both primary and secondary victim's immediate interests

are outweighed by those of wider society: FP7: `It's not just about that

person who's died, it's about protecting other people if you've potentially

had a murder committed.'

2. Practical limitations

In some cases, it may be possible to ascertain all necessary facts without

conducting an invasive autopsy. All HORFPs that I spoke to demonstrated at

least some willingness to replace an invasive autopsy with an external

examination and, most commonly, CT scans.

This is part of a wider debate

regarding the extent to which non-invasive techniques could repl ace

evisceration.

Those HORFPs who favoured the routine use of non-invasive

techniques considered autopsy to be undignified and mutilating. They were

also mindful of the distress that might be experienced by any bereaved

person upon hearing about a forensic autopsy. Several cases were described

where invasive autopsy added little of use. For example, road traffic inci-

dents, or a close-range shooting to the head where there was CCTV evid-

ence. Thus, there was a split between those HORFPs who viewed scanning

to be the poor relative of invasive techniques (to be used sparingly or as an

adjunct) and those who preferred non-invasive autopsy to be the initial

presumption in all cases (supplemented by increasingly invasive investiga-

tions as necessary). As FP11 commented:

. . . most causes of death can be investigated to quite a high level without an

invasive component. And for the major blunt traumas and penetrative traumas,

to the extent that I'm not convinced that the criminal justice system would be

compromised.

578

67 Carpenter et al.'s study of coronial decision making in Australia (where there is an

integrated death investigation service) found that Islam was viewed as opposing

modern secularism and counter to national loyalty. This led to resentment by

coronial officials who felt that religious considerations took precedence over the

truth: see Carpenter et al., op. cit., n. 40, pp. 167±9. It is possible therefore that

equivalent attitudes could be found amongst the coronial community in England and

Wales. Further research is required on this.

68 The Chief Coroner appears to be broadly supportive of the considered use of CT

scans. His guidance can be found at

uploads/2013/09/guidance-no-1-use-of-port-mortem-imaging.pdf>. HORFPs often

place reliance on the Code of Practice (op. cit., n. 5), which requires a more invasive

approach, unless the HORFP can justify deviation from the Code.

I. Roberts et al., `Post-mortem imaging as an alternative to autopsy in the diagnosis of

adult deaths: a validation study' (2012) 379 Lancet 136; B. Morgan and G. Rutty, `How

does post-mortem imaging compare to autopsy, is this a relevant question?' (2016) 4 J.

of Forensic Radiology and Imaging 2; J. Burton and J. Underwood, `Clinical,

Educational and Epistemological Value of Autopsy' (2007) 369 Lancet 1471.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

These decisions do not necessarily lie with the individual HORFP. Scanning

is expensive

and is somewhat of a luxury in austere times. Moreover, many

areas have no infrastructure to support additional demands on already over-

burdened hospital scanners, especially as HORFPs are largely self-employed

and rely on access to NHS facilities.

Furthermore, tests or additional

technology use comes with associated costs for the police. Whilst not high-

lighted by the HORFPs as affecting their views on whether they should carry

out invasive autopsies, this context of wider fiscal restraint is likely to have

contributed to the general trend away from invasive autopsies in death

investigation. Police funding has seen sustained real-term cuts, which has

impacted on officer numbers.

It is possible to imagine that in some areas

this might have led to insufficient homicide detectives, who would be better

equipped than a uniformed officer to spot the signs of a less than obvious

suspicious death.

Certainly, the HORFPs shared a concern that it was not

the use of invasive autopsy but rather those cases that were diverted to the

coronial process as non-suspicious that was of greater concern:

FP9: It's money. Purely money . . . there are certainly issues with training of

uniformed officers and of uniformed officers trying to alleviate work load

pressure on the murder experts that are now existing in police forces, its hit

and miss in terms of investigating them.

FP8: I think a lot of the police think that a coroner's case will pick up

something if it's dodgy. But you can't rely on that . .. the coroner's PM is not a

filter, it's not something that's going to pick up subtleties, if there's any

concern at all really it should be forensic.

Finally, for some, willingness to consider the use of non-invasive tech-

niques was tempered by an awareness that they are held accountable both

through the adjudicative process and a rigorous regulatory scheme:

FP2: Whilst there are occasions that I've been persuaded to avoid the messy

bit, I've always sought assurances from the investigating or legal authorities,

because the minute it goes near a courtroom, there are so many unanswered

questions.

579

70 The scanner itself costs in the region of £80,000 and the cost of each scan can be up

to £1,000. See G. Watts, `Imaging the Dead' (2010) 341 Brit. Medical J. 1130.

71 The Chief Coroner's guidance highl ights cost and availabilit y as potential

limitations, see Chief Coroner, op. cit., n. 68. Bodies are delivered to the local

mortuary with appropriate facilities for a post-mortem. The majority of these do not

have CT scanners.

72 Especially since the 2015 Spending Review which committed to keep police

spending static (although forces were able to gain funds via council tax rises). For

analysis, see R. Disney and P. Simpson, `Police Workforce and Funding in England

and Wales' (2017) IFS Briefing Note BN208.

73 My thanks to the anonymous reviewer who highlighted this concern.

74 The issue of funding, and other possible causes of `missed homicides' is discussed in

Jones, op. cit., n. 23.

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Here we see HORFPs being careful to ensure that they are not deemed

responsible for any omissions. HORFPs are mindful of the two primary ways

in which they are held to account. First, they are expert witnesses at court.

Whilst most of the HORFPs in my sample were sceptical of what they could

add by way of oral evidence,

the threat of an advocate publicly exposing

holes in their methods or conclusions is likely to encourage a preference for

detailed, invasive autopsies.

As such, the court process may disincentivize

HORFPs from exploring non-invasive options.

Second, HORFPs are heavily regulated. As I outlined above, in addition

to the public scrutiny that accompanies their role and the oversight of the

GMC, HORPFs are also regulated by the Forensic Science Regulator, the

Home Office and the Royal College of Pathologists.

Complaints are

investigated by a disciplinary sub-committee of the Pathology Delivery

Board, a group composed of medical, legal, criminal justice, and govern-

mental representatives.

There is a wide range of outcomes available,

including taking no further action, written warnings, compulsory training,

and referral to a tribunal, which can remove the pathologist from the Home

Office register.

Whilst very few complaints are upheld, a significant

number are made.

This results in pressure to perform detailed, invasive

autopsies. For example, as FP2 told me:

. .. we operate to this Code of Practice . .. it's fairly set in stone, the rules and

regulations we're expected to perform to . .. if I'm being asked to do a police

forensic autopsy in a suspicious death case, and then I neglect to do half of my

job . . . I could be held to account.

580

75 See discussion in `HORFPs and Suspicious Death Investigation' above.

76 The need for forensic pathologists to retain an authority has been highlighted by

Timmermans in his study of medical examiners in the United States: see S.

Timmermans, Postmortem (2006).

77 See Code of Practice, op. cit., n. 5.

78 Further guidance on the Constitution and membership of the PDB can be found at:

www.gov.uk /guidance /forensic -pathology -role-wit hin-the-h ome-offic e>.

The Pathology Delivery Board (PDB) deals exclusively with complaints against

HORPFs. In some cases, especially paediatrics, a second specialist pathologist will

assist with the post-mortem. If a complaint is made in these cases, it will be

investigated by the GMC and, where appropriate, adjudicated upon by the Medical

Practitioners' Tribunal Service (the PDB has no jurisdiction over non-HORFPs).

79 This complex process is detailed in the `Suitability Rules for Forensic Pathologists',

at: ://www.g ov.uk/go vernment /publica tions/su itabili ty-rules -for-for ensic-

pathologists-2013>. If fitness to practice more generally is doubted, the issue may

be additionally referred to the GMC.

80 The Home Office inform me there are roughly four `serious' complaints made to

them annually. My understanding is that improved regulation has led to this number

decreasing substantially in the last decade. Since 2006, there have been six HORFPs

struck off the Home Office Register. More complaints may be processed via the

GMC route.

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We have seen that HORFPs' attitudes to invasive autopsy is likely to be

affected by both the multifarious interests in the body and the wide variety of

stakeholders to whom they answer. These bring together the medical, legal

and social arenas in which HORFPs exist. This can lead to the feeling that

they `can get kicked from any angle' (FP3).

One aspect of the regulatory landscape which has not yet been explored is

crucial to understanding conflicts in the use of the dead body. This relates to

the retention of tissue. It is this that we turn to in the next section, where we

are also reminded that the demands of the criminal process can be equally

disruptive for all bereaved people.

TISSUE RETENTION

The Alder-Hay and Bristol Royal Infirmary scandals bought the routine

retention of (children's) organs to the national attention. Evidence of

bereaved parents to the subsequent inquires made clear the emotional trauma

of discovering unauthorized retention of organs.

This was the case

whatever the religious beliefs involved.

In the wake of these scandals, the

Human Tissue Act 2004 (HTA) was enacted and the regulatory body the

Human Tissue Authority (HTAuth) was created.

In 2009, during a non-routine HTAuth inspection of mortuary facilities in

Wales, widespread retention of tissue at that location was discovered, mostly

following medico-legal autopsies. This led to a temporary suspension of the

licence of Cardiff University Hospital to carry out post-mortems.

This

prompted the HTAuth to issue a `Regulatory Alert' to the post-mortem

sector, followed by `Directions' to licenced mortuaries to audit any tissue

held. Aware of the public outcry which led to the creation of the HTA and in

response to the Cardiff findings, in 2012 the Association of Chief Police

Officers, with the assistance of the National Policing Improvement Agency,

ordered an audit of tissue held by, or on behalf of, the police. This found that

581

81 See The Royal Liverpool Children's Inquiry Report (2001) HC 12-11 (the Redfern

Report) and Learning from Bristol: The Report of the Public Inquiry into children's

heart surgery at the Bristol Royal Infirmary 1984±1995 (2001; Cm. 5207(1)). Also,

A. Campbell and M. Willis, `They stole my baby's soul: narratives of embodiment

and loss' (2005) 31 J. of Medical Ethics 101.

82 M. Brazier and S. McGuinness, `Respecting the Living Means Respecting the Dead

Too' (2008) 28 Oxford J. of Legal Studies 297.

83 See Human Tissue Act 2004, ss. 13±15.

84 The non-routine inspection followed an earlier routine inspection. Details of both

are: Human Tissue Authority, Site Visit Inspection Report for the Mortuary and

Post-Mortem Department, University Hospital of Wales, Cardiff, Licencing No.

12163 (30 July 2009); Human Tissue Authority, Site Visit Inspection Report for the

Department of Histopathology, University Hospital of Wales, Cardiff, Licencing No.

12163 (10±1 1 Sept ember 2 009) . For med ia resp onse , see: ttp:/ /www

.walesonline.co.uk/news/wales-news/mortuary-uhw-closed-due-serious-2089121>.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

`492 whole organs or ``significant'''

body parts were held by or on behalf

of police in police premises, hospital mortuaries, and other establishments.

Those involved in the criminal process need to be vigilant against the

potential for unauthorized tissue retention. Forensic autopsies often involve

the removal of tissue for the purposes of toxicology, histology or other

expert examination. The material required for this ranges from scrapings on

blocks and slides, bloods samples, to whole organs or body parts. The 2004

Act applies only to tissue removed, used or stored for a `scheduled

activity'.

Tissue retained for criminal justice purposes does not come

within this definition and therefore falls outside of the scope of the HTA.

As noted above, the body remains under the jurisdiction of the coroner and it

is she who decides when it will be released. Thus, two systems of regulation

exist in tandem, with the work of forensic pathologists potentially falling

under, and satisfying the needs of, both. Given the confusion caused by this,

the Home Office commissioned legal advice.

This concluded that all

material should be seized under the authority of the police, provided by

sections 19 and 22 PACE. The effect of this is that the provisions of the HTA

do not apply and that the materials may be retained for as long as criminal

justice purposes require it.

To promote the needs of justice, we again see that the limitations that

would apply in `ordinary' circumstances can be dispensed with. Moreover, it

is apparent that the desire to bury (or otherwise dispose of) a body `whole' is

likely to be frustrated by the interests of justice. During the interviews, this

concern most commonly arose in the context of the need to delay the return

of an entire brain so that it could be in the `optimum' condition for expert

analysis. For example:

FP5: . .. head injury cases involve brain injury and the examination of brains in

their fresh state is not good . .. because of the consistency of the brain . .. it is

necessary to examine the brain after it has been fixed in formalin, which takes

several weeks . . .

582

85 Defined as `Samples of human tissue that incorporate a significant part of the body

(e.g. organs, limbs etc.)'.

86 The Association of Chief Police Officers, Report on the Police Human Tissue Audit

2010±2012 (2012) 15±17. Samples dated from 1960 until the cut-off date of 31

March 2012, many therefore were obtained prior to the HTA coming into force in

2006.

87 Human Tissue Act 2004, Schedule 1.

88 Human Tissue Act 2004, s. 39.

89 P. Ozin, `In the Matter of The Proper Lawful Authority for Taking and Retaining

Human Tissue Material in a Post Mortem Examination' (No.1 of 19 March 2011;

revised 17 June 2011)', at

and-retaining-human-tissue-in-a-post-mortem-examination>.

90 This may be quite some time. Appeals can take many years and it is possible that

cases may be appealed out of time (id., para. 41.2).

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Again, it is the next of kin who are the site of potential conflict. As was

explained to me, the desires and interests of the deceased person's family

may point in contrasting directions.

FP2: So it might be horrible for the family to have to make that decision, `Do I

wait 12 weeks for the brain to come back before I have the funeral? Or do I

bury my loved one without a brain in?' And that's a very difficult decision for

them to have to make and they'd rather not have to make it, and they're

making it because I've sent the brain away. Similarly, if two years down the

line the person that they wanted to go to prison for murder gets away because I

didn't take the brain, they'd probably be more angry.

The desire to hold a funeral and dispose of the body can be at odds with the

demands of justice. Just as many of those who commit crime may want to

frustrate justice, it is expected that the bereaved will want retribution to be

prioritized, even if they are not aware of this at the time. The view that

grieving (and/or religious) family members may be irrational or not

understand the long-term implications of their desires might be considered

paternalistic. It risks failing to recognize the depth of the belief systems

involved. Especially where religious doctrine is concerned, it may be

possible that objecting family members are motivated by feeling a duty to

facilitate the smooth transition from one life to another.

The binary

approach of the HORFPs is, however, consistent with the notion that justice

demands the prioritization of truth, retribution, and due process.

The HORFPs did however draw a clear ethical line between `whole'

organs as compared to slides and blocks:

FP3: We keep blocks of tissues, they'll be kept in perpetuity really, under

PACE. But the actual wet tissue bits just go back in. But still it wouldn't be a

complete body as some would say . . .

FP5: Tissue that is within blocks for microscopy . . . is tissue which has no

intrinsic value to anybody else. I recognize that is not a view that the family of

the deceased might have.

The need for pragmatic restrictions on the power of the family was also

repeated:

FP1: [regarding an infant who was murdered by her parents] . . . the most

damning fact against both parents was in a histological slide . . . the mother

went to the coroner's office to try to get the slides back so that she could

destroy them . . . It's a good way to destroy evidence to say, `We want this

tissue back because they mean something. It will make the child whole.'

Whilst the HORFPs were consistent in their belief that small tissue samples

were not ethically significant, they were aware that the deceased and the

bereaved might not agree. They drew attention to the lack of a joined-up

583

91 See G. Hartogh, `The Role of Relatives in Opt-out Systems of Postmortal Organ

Procurement' (2012) 15 Medicine, Healthcare and Philosophy 195. Hartogh argues

that even where relatives expressly decide against the deceased person's wishes,

they may do so because they want to protect the body and `person'.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

death investigation service, arguing that this could lead to unnecessary

distress on the part of a deceased's family. For example, FP8 was critical of

the coroner's officers who are responsible for explaining the next of kin

tissue forms to the family:

sometimes we have them come back and they say, `blocks and slides returned

to body prior to funeral' . . . the coroner's office will send that through two

months after a PM; the body's clearly no longer there anymore and you just

think, `oh my gosh, who has sat down with that relative?' . . . they've offered

them something dangerous to offer because they haven't explained to them

that they don't tend to get those things back at least until after an inquest . ..

and do they want to delay the funeral?

This discussion has proceeded on the assumption that there will be

something which is at least reminiscent of a whole body which can be

reunited for disposal. In some circumstances, such as those encountered with

suicide bombings or where body parts are highly fragmented, it may be

impractical to reunite tissue whatever the actions of HORFPs.

Whatever

the practical limitations, and in a political era where the humane treatment of

(secondary) victims is of political importance, this is a clear area for

improvement. There is no justice-based argument against better provision of

information to families about the reality of what, and when, tissue can be

returned. As has been demonstrated throughout this article, HORFPs are

keen where possible to meet with the wishes of the bereaved. This aspect is,

however, outside of their control. We have seen that the right to information

is something which is advocated in criminal justice policy; it ought to be

implemented to reduce the possibility of unnecessary distress being caused.

The final theme which emerged in relation to tissue retention was what

FP3 described to me as `quality control'. Blocks and slides could be

examined by a different forensic pathologist, the initial findings confirmed

or challenged. This is linked to the need for justice, an essential element of

which is the ability of evidence to be tested, ensuring fairness. It is this need

for the findings of HORFPs to be subject to review which occupies the next

section. There, I consider the extent to which so-called defence post-

mortems are necessary to satisfy the demands of justice.

SECOND POST-MORTEMS

When addressing second autopsies, Hutton identified the `problem' that, `if

criminal charges are to be brought, the interests of justice dictate that the

defendant should have the right to re-evaluate the forensic evidence and, if

584

92 In some circumstances, painstaking efforts have been made to achieve this: see, for

example, the continuing efforts following the 9/11 terrorist attacks, explained in J.

Aronson, The Science and Politics of Death at Ground Zero (2016).

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

necessary, have further tissue samples taken.'

He noted that this `legitimate

even-handedness'

can lead to substantial delays in the release of the body,

on some occasions extending to years due to pending appeals. This is

understandably distressing for the bereaved.

What Hutton refers to as the `principles of justice'

are grounded in an

appeal to fairness; on this occasion the beneficiary is the accused. Hutton

avoids the trap of depicting defendants' and victims' rights as in conflict,

whereby `the offender's gain is the victim's loss'.

This focus on due

process and defence rights is equally important to the experiences of victims.

Many of the worst miscarriages of justice in England and Wales have

involved murder convictions; the due process standards that have resulted

from these hard-won battles are aimed at preventing further wrongful

convictions.

Recognizing that accurate fact finding can be promoted by facilitating

independent defence checks is one element of this. Moreover, whilst it may

sound trite to those bereaved by homicide, the promotion of justice in this

way is in the interests of victims. Victims do not benefit from the reduction

in freedom of an innocent person. The question therefore is whether second

post-mortems can be important sources of evidence for the defence.

Only one of my interviewees favoured routine invasive second autopsies,

advancing two arguments, both linked to promoting accurate fact finding.

First, despite their independence, HORFPs are regulated by the state, with a

substantial proportion of their income coming from police budgets. The

second post-mortem therefore provides the defence with the opportunity to

ask questions relating to their version of events and to independently verify

incriminating findings. Fairness for this HORFP was contingent upon

equality of opportunity to commission an autopsy. Second, the process was

perceived to be a good way to ensure that HORFPs were subject to quality

checks. This had the side-effect of reinforcing the professional authority of

the pathologist and maintaining the appearance of independence from the

police:

FP1: I do them for the challenge and to ensure that there's proper opinion for

the defence, not some excuse [alluding to an accused who tried to minimize

his crimes to his legal representative] . . . you know in a few days time or a

week's time one of your colleagues . .. is going to come along and check every

single one of your findings . . . you may differ in opinion, but you will be in

agreement as to facts.

585

93 Hutton, op. cit., n. 20, para. 3.4.2.

94 id.

95 id.

96 D. Garland, `The Culture of High Crime Societies: Some Preconditions of Recent

``Law and Order'' Policies' (2000) 40 Brit. J. of Criminology 347, at 351.

97 For discussion of many of these, see Quirk, op. cit., n. 51, especially pp. 768±78.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

That most HORFPs interviewed were ambivalent about the value of second

invasive autopsies did not mean that they were opposed to their findings

being independently reviewed. Several of the solutions mooted in the Hutton

report

were raised. Hutton's preference for second autopsies to be

substantially paper based, with the possibility of a later invasive autopsy,

received broad support from the HORFPs:

FP2: . .. we could have a more rational system whereby if the case is relatively

straightforward, the autopsy has been done by a Home Office pathologist, all

the samples and photographs are there, is there anything to be gained by

somebody else coming and then closing it again? . .. the questions the defence

have [can often] be answered by someone just reviewing the photographs . . .

However, the possibility of second invasive post-mortems needed to be

maintained to avoid miscarriages of justice. The issue of second post-

mortems brings together the concerns identified throughout this article. In

the words of FP5, conducting a second post-mortem `adds to the distress of

the deceased's family and is undignified'. The process delays the release of

the body

and means that it will be subject to further mutilations, which can

have profound implications for the bereaved.

Whilst those HORFPs who were sceptical about the value of defence

autopsies cited these concerns, they were viewed as significant only because

the HORFPs doubted the utility of second post-mortems. Here, the way in

which justice was invoked was subtle. Hutton spoke about defence rights in a

context of equal opportunity to test evidence. The overwhelming majority of

HORFPs took a different perspective. Because the body has already been

subject to an invasive autopsy, `the topography and relationships are no

longer there' (FP 6). The passing of time and the practicalities of storage also

result in the body being degraded. Thus, the need for actual equality was

qualified by considering the practical utility of a defence autopsy. Justice and

fairness were interpreted to be synonymous with equality of access to

reliable informati on, rather than equalit y of opportunity to autops y.

Advancing defence rights without this utility (in terms of factual accuracy)

was not considered sufficient justification to warrant the disadvantage

suffered by the deceased and the bereaved.

586

98 These were that: every autopsy should be vi deoed with timed and dated

photographic stills taken, strengthening critical conclusion checks so that they are

performed by a HORFP from outside of the relevant group practice, and regularizing

police and coroner practice to ensure timely release of bodies. Hutton also suggested

that demand would reduce if the defence were required to apply to the court with

compelling reasons for a second autopsy: Hutton, op. cit., n. 20, para. 3.4.4.

99 Whilst it used to be the case that bodies could be kept in storage for months,

following Home Office Circular 30/1999, in a suspicious death case the coroner

should order an independent post-mortem if no-one has been charged within 28

days.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

CONCLUSIONS: JUSTICE, A TRUMP CARD IN A GAME WITH NO

WINNERS

When a person dies in unexpected or suspicious circumstances, the norms

that regulate our corporal relationship with medicine and law are upended.

So too are grief processes disrupted. This does not mean that the experiences

and views of individuals are ignored but, rather, that they are secondary to

the interests of justice.

The rejection of a `zero-sum' presentation of defendant versus victim

rights is consistent with the centrality of retributive justice to the views held

by the HORFPs. This drive for fairness in identifying and evidencing wrong-

doing means that it may sometimes appear as if it is the accused, not the

victim, who is prioritized. As FP6 told me:

The approach that I like to think we take is, if I were the wrongfully accused

man, what would I want to be sure had been done? That's why one takes from

the body and does to that body, perhaps rather more than . .. you would expect.

This is surely right. We must remember that whilst the deceased person may

have their ante-m ortem prefere nces frustrated , and the bereaved be

distressed, a potential defendant stands to lose his or her liberty. Even then,

many HORFPs did not advocate unreflective prioritization of defence rights.

Rather, they advanced a utility-based model, whereby the defence interest in

further invasive procedures should only trump those of others where this

could add important information to the fact-finding process. Their concept of

fairness as a key element of retributive justice was subtle and contingent on

practical gains for the defence. Thus, although due process as part of the

justice process was important, the HORFPs advocated amending the form

that this takes, considering the practical gains for the defence, as well as the

interests of the deceased and the bereaved.

From a practical perspective, it is easier to ignore the dead than the living.

Whatever beliefs are held, the dead matter, but not as much as the living.

Whilst retributive criminal justice should be alert to the needs of victims, the

degree to which this should shape policy is less clear. We should take heed

of Hudson's warning that diversions from retributive practices could

undermine the message that criminal wrongs are societal wrongs.

100

It is

this, I think, that the HORFPs had in mind when they referred to `justice' as

vindicating the distress caused by the forensic autopsy process. Whilst

almost all expressed frustration with the extent of the restrictions imposed by

the HTA, they never did so because they thought the rules unjust. By contrast

there was unwavering commitment to the trump value of retributive `justice'.

They appreciate that another person's rights have been violated but in such a

587

100 B. Hudson, Justice in a Risk Society (2003) 208. Hudson's critique, made in the

context of restorative justice, can be extrapolated out to the risk that homicide could

be viewed primarily as an issue for the deceased/secondary victims.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

way that a serious wrong has also been done to wider society. The forensic

autopsy is part of a social and legal process which promotes findings of

criminal wrongdoing based on evidence and as the outcome of a fair legal

process.It seems that the consequences of invasive autopsy (for example,

delay and mutilation) to facilitate justice for the victim, accused, and wider

society is a small additional sacrifice. This approach sits comfortably with

the view that the rights to the various parties to the criminal process can be

balanced and modified to ensure that all are treated as humanely as

possible.

101

It is, in my view, the only defensible approach to take.

Looking to the future, there are many reasons to feel encouraged. Those

HORFPs that I spoke to displayed sensitivity and awareness of the signifi-

cance of their actions. Of course, there is the danger that my sample was to

some degree self-selecting and that those unwilling to talk could be less

thoughtful. Further research is therefore desirable. In addition to revisiting

the necessity of second post-mortems, one area that has the potential for

development is the communication between HORFPs and the bereaved. I

noted frustration with the failure of coroner's officers to fully explain the

(in)significance of small tissue samples to family members. It would be

worth exploring whether forensic pathologists themselves should have a role

with next of kin, both to explain the autopsy process and clarify any

misunderstandings about tissue.

102

If the deceased truly are their `patients',

such detachment seems unusual. However, this would need careful thought.

The HORFP may be a witness in court and cannot be seen to be partisan,

although a limited role should not compromise this. Such a move could be

humane to the bereaved without undermining `justice'.

588

101 See Doorson v. Netherlands [1996] ECHR 14.

102 For a proposal from pathologists, see P. Vanezis and S. Leadbeatter, `Next of kin

clinics: a new role for the pathologist' (1999) 52 J. of Clinical Pathology 723.

ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School

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‘It's All About Justice’: Bodies, Balancing Competing Interests, and Suspicious Deaths

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