‘It's All About Justice’: Bodies, Balancing Competing Interests, and Suspicious Deaths
Published date | 01 December 2018 |
DOI | http://doi.org/10.1111/jols.12130 |
Date | 01 December 2018 |
Author | Imogen Jones |
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
1
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'
2
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.
3
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,
4
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.
5
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.'
6
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
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),
at
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.'
7
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
8
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.'
9
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
10
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
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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.
11
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.
12
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.
13
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.
14
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.
15
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).
16
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
17
and the Third Report of Smith's
Shipman Inquiry,
18
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.
19
More recently, both the 2015 Hutton
Review of Forensic Pathology
20
and the 2017 Angiolini Review of Deaths
and Serious Incidents in Police Custody
21
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.
22
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
568
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.
23
In
such circumstances, the coroner's investigation is suspended pending the
result of the police investigation and any court proceedings.
24
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.
25
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.
26
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.
27
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
28
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.
29
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.
30
Many HORFPs appear to be motivated by something akin to this. Aware that
they primarily deal with suspicious deaths,
31
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.
32
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,
33
an emphasis on the
still living is consistent with wider treatment of the dead.
34
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.
35
Similarly, the activism of family members contributed to quashing
of the original Hillsborough inquest verdict of `accidental death'.
36
In the
571
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.
37
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.
38
Yet these `rights' are limited
and aim to make the criminal process more tolerable.
39
They do not entitle a
deceased person's family to interfere with the investigatory process
40
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).
41
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].
572
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'.
42
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.
43
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.
44
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.
45
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.
46
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.
47
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.'
48
This relatively
simple concept contains two main elements: (criminal) wrongdoing
49
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
50
a
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.
51
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.
52
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.
53
On occasion this
caused such public outrage that spectators rioted to try and save bodies from
this fate.
54
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.
55
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),
56
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'
57
as opposed to creation. Yet both Islam
and Judaism are widely interpreted to require prompt burial and for the body
not be mutilated.
58
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,
59
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.
60
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.
61
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.'
62
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).
63
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.
64
However, where this was not compromised, he
favoured respecting the views and beliefs of the deceased and their family.
65
Whilst Hutton highlighted service provisions such as bereavement support,
information, and sensitivity,
66
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.
67
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.
68
This is part of a wider debate
regarding the extent to which non-invasive techniques could repl ace
evisceration.
69
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.
69
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.
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These decisions do not necessarily lie with the individual HORFP. Scanning
is expensive
70
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.
71
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.
72
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.
73
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.
74
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,
75
the threat of an advocate publicly exposing
holes in their methods or conclusions is likely to encourage a preference for
detailed, invasive autopsies.
76
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.
77
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.
78
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.
79
Whilst very few complaints are upheld, a significant
number are made.
80
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:
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.
ß2018 The Author. Journal of Law and Society ß2018 Cardiff University Law School
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.
81
This was the case
whatever the religious beliefs involved.
82
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.
83
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.
84
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'''
85
body parts were held by or on behalf
of police in police premises, hospital mortuaries, and other establishments.
86
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'.
87
Tissue retained for criminal justice purposes does not come
within this definition and therefore falls outside of the scope of the HTA.
88
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.
89
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.
90
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.
91
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.
92
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.'
93
He noted that this `legitimate
even-handedness'
94
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'
95
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'.
96
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.
97
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
98
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
99
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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