Murder victim Paige Doherty whose MSP pleaded with Scottish Parliament to change the law in relation to post mortems.

By Bill Heaney

A move by Gil Paterson, the MSP for Clydebank, to change the law in regard to how long the police can hold on to a murder victim’s body for a post mortem examination has been carried out has run out of time in the Scottish Parliament.

Mr Paterson, pictured left, told a Holyrood debate on the general principles of the Post-mortem Examinations (Defence Time Limit) (Scotland) Bill that his campaign had been “a long time in the making” and began in 2016, following a meeting with his constituent Pamela Munro, whose 15-year-old daughter, Paige Doherty, was murdered on 19 March 2016.

The SNP veteran said: “Despite the charging of a suspect within a week of Paige’s death, a defence post-mortem examination was not held until 15 April, and her body was released to her family on 18 April—30 days after her murder. There was no transparency in the procedure. That caused a great deal of distress to Paige’s family, who lost the chance to properly say goodbye to her.

“The anguish and pain that they experienced is, thankfully, unimaginable to most of us. However, it is my belief that there is no reason why any family should have to live with such uncertainty over when the body of their loved one will be released following a murder.

“Even one such incident is, in my view, totally unacceptable. I therefore propose in my bill simple measures to increase transparency in the system, to help families to better understand what is happening, and to lead ultimately, I hope, to the faster release of the bodies of the deceased.”

He added: “When a person dies in suspicious circumstances, a post mortem examination is carried out for the Crown Office and Procurator Fiscal Service, usually within a few days of the death. There is also scope for a further post mortem examination, known as a defence post mortem, to be carried out on behalf of an accused.

“There is no time limit within which a defence post mortem must be instructed or take place. The bill would rectify that by introducing an extendable 14-day time limit in which a defence post mortem examination could be instructed.

“The time period would begin from the day on which the defence team received the result of the Crown post mortem examination. If the defence team needed more than 14 days to decide whether a further PME was needed, it would be able to apply to the court for an extension.

“It could do so more than once. Such an approach would protect the accused person’s right to a fair trial. The defence would have to give reasons each time it applied for an extension. That should be a spur to action, reducing the likelihood of long delays.”

Mr Paterson said that “due to time constraints” the Justice Committee was unable to reach a view on whether it supported the general principles of the bill and the Scottish Government, too, did not give a definitive view.

Since the report was published, the Cabinet Secretary for Justice, Humza Yousaf, and the Lord Advocate, James Wolfe, right, have expressed concerns about the bill.

The MSP, who will be retiring before the Scottish Parliament election in May,  said it was “unfortunate” that their concerns seemed to be based largely on a misunderstanding of what the bill is trying to do and how it would work.

He added: “For example, the Lord Advocate and cabinet secretary suggested that the 14-day time limit would be insufficient, as it takes about that time to make available the findings of a Crown Office PME. My intention was always that the 14-day time limit would begin only after the initial findings of the PME had been made available to the defence, to allow the defence 14 clear days to make an informed decision.

“I acknowledge that the Crown Office has put in place a protocol with the aim of minimising delays and improving information sharing. I have supported the protocol and I am on record as welcoming its introduction.

“However, the protocol is not binding and, in the long term, a change of leadership or approach might mean that it is not observed. Rules on timescales for defence PMEs must be put in statute, to ensure that they continue in the long term.

“It is unfortunate that there is a dearth of forensic pathologists in Scotland, which leads to delays in the carrying out of defence PMEs. I do not deny that that is a major problem that needs to be addressed, but I do not see how that could be done through legislation. Work to increase the number of forensic pathologists could complement my bill and should not be a substitute for it.

“As I said, the bill has not been subjected to the full scrutiny that we, in the Parliament, expect to take place at stage one, but that is not a reason to reject it at that stage. There is scope for further scrutiny to be undertaken at stage two, so I urge members to consider the bill’s merits and what it is trying to achieve and to give it the benefit of the doubt at decision time.”

However, Conservative MSP Adam Tomkins, said on behalf of the Justice Committee that this was the second of two members’ bills that have come to the chamber for debate this month after having been examined by the Justice Committee.

He added: “As I explained in the debate last week on Claire Baker’s Culpable Homicide (Scotland) Bill, the Justice Committee has been unable to devote to the two bills the full and detailed consideration that they deserved.

“In part, of course, that is due to the pandemic and its impact on parliamentary business, but in greater part it is due to the quantity of Government legislation that has somewhat deluged the committee and that we are currently wading through.

“It has to be said that the problem that Mr Paterson’s bill seeks to solve does not appear to arise very often. Despite the fact that Mr Paterson told us that the problem is fairly common, the most recent year for which statistics are available suggests that only two post mortem examinations were requested by the defence—only two in an entire year.

“That does not lessen the very real anguish that a family might have to endure in any particular case in which the body of the deceased cannot be released. However, it does suggest that the number of occasions on which the problem arises is very small.

“Submissions from the Faculty of Advocates and others suggest that, when there is a problem, it is caused by a shortage of available forensic pathologists. If that is the problem, legislating for a maximum period of time within which the defence can request a post mortem examination, as the bill does, is not going to solve it.”

The Law Society of Scotland has said that “a reasonable amount of time should be allowed to ascertain how the protocol is working … in practice”  before the Parliament legislates on the matter.

Mr Tomkins said: “It is important that the body of a deceased relative is released to the grieving family in a timely fashion, keeping delays to a minimum. Secondly, the number of times when that fails to occur are few and far between; nonetheless, each delay will cause considerable pain and distress for the family involved.

“Although the committee had some sympathy with the policy intentions that underpin the bill, we noted a range of issues that were raised with the member in charge of the bill.  Taking all of that into account, the Justice Committee was unable to make a recommendation to the Parliament on the general principles of the bill.”

Cabinet Secretary for Justice Humza Yousaf, left,  said: “It is right to acknowledge, at the beginning, the importance and sensitivity of the issue that the bill addresses. The experiences of Paige Doherty’s family that Gil Paterson has so clearly set out are unimaginably awful. Again, I can only express my condolences to her family and all the families who have been affected.

“Paige’s case is not the only one of this kind about which we have heard in the Parliament. In the past, some families have experienced the distress of losing a loved one in appalling circumstances that have been made worse by having to wait for the body to be released. They were right to expect that something should have been done to stop that from happening, and something has been done. That was acknowledged by Gil Paterson and reiterated by the convener of the Justice Committee, from whom we have just heard.

“In consultation with the Faculty of Advocates, the Law Society of Scotland and forensic pathologists, the Crown Office has agreed to and published its forensic pathologist consultation protocol. That gives defence agents increased confidence in the initial examination and therefore crucially avoids multiple post mortem examinations without compromising the integrity of the justice process.

“The protocol has been extremely successful. Gil Paterson indicates that between December 2018 and December 2019, only two defence post mortems were requested. The most recent information given to me by the Crown Office is that there have been no defence post mortems since July 2019. In almost 100 homicide cases reported, there has been not a single defence post mortem.

“As the bill consultation concluded in early April 2019, the success of the protocol, which was published in October 2018, could not yet, in fairness, have become apparent. Circumstances have moved on and the issue has progressed.”

Humza Yousaf added: “The bill was introduced in a period of unprecedented difficulty, so scrutiny was never going to be straightforward. The committee was unable to make a recommendation and, somewhat unusually, turned to the Government for a view.

“Given the inability of the committee to scrutinise the bill fully or make a recommendation, the lack of oral evidence taken and my concern that the bill would, inadvertently of course, make the situation worse for victims, I cannot in good conscience support it progressing.

I know that that will be of great disappointment to Gil Paterson, but I hope that he and everybody will understand that all of us have only the victims and their families at the forefront of our minds.

“The Government’s position remains that there are significant fundamental policy problems with the bill. The most concerning of those is the 14-day limit. I will not go into that in detail, because I have only a little bit of time in which to conclude my remarks. However, at best, the 14-day time limit would, I think, force defence agents to speculatively request a post mortem. At best, that would create scheduling problems for premises and pathologists.

“However, at worst, if an examination went ahead, it might delay the release of a body, all because of an artificial statutory deadline. Some members have said that it might be possible to address such issues by amending the bill, but I do not think that it could be amended sufficiently to improve on the current situation, in which there is no limit on defence post mortems.”

Gil Paterson’s final plea to take his bill forward was rejected and received no support from his colleagues on the SNP benches.

He said: “The bill is a simple measure, but it would bring significant benefit to families who lose loved ones in murder cases. I believe that we can assist them in their time of desperate need by putting in place a time limit that begins as soon as the defence is in receipt of the findings of a first post mortem report.

“It is worth noting that Scotland is unique in its approach to post mortems. I have researched the subject and have been unable to find any other legal jurisdiction in any country in the world that automatically allows a second post mortem to be held on demand by the defence.

“Most allow a second examination only after application has been made to a judge or a coroner and after good reasons have been provided.

“The Crown Office and the Cabinet Secretary for Justice have raised objections to the bill, but I suggest that, if they consider that I have got those aspects wrong, they have not clearly understood my bill. Apart from my own, no evidence on the matter has been presented to the Justice Committee. For that reason alone, I urge members to support my bill, as that would allow the committee to take further evidence on and fully consider the concerns that have been raised by the Crown Office.

Some members have mentioned the Crown Office protocol, which I welcome. It is good, but on its own it is not enough. My bill would not alter or limit the protocol in any way; its purpose is to complement it and make it more effective. Without the bill’s provisions being in place, the defence could still delay for as long as it liked in deciding on a second post mortem. There is nothing that the Crown Office, operating through the protocol, or the courts or the Government could do to force it not to do so, simply because allowing a second post mortem to take place on demand and without limitation is currently the law of Scotland.

“I do not want any repeat of what happened in 2016 to families whose children—one of them only 15 years of age—had been brutally murdered. Those families were then caused further distress by the imperfections of our uncaring post mortem system.”

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