Hansard

I begin, first and foremost, by paying tribute to Gil Paterson for his dedication to the issue over several years, and for his hard work in introducing the bill that is before us. I know that he has engaged with successive justice secretaries, the many interested parties and the Parliament’s non-Government bills unit to get to this point.

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.

The bill was introduced in a period of unprecedented difficulty, so scrutiny was never going to be straightforward; the convener of the Justice Committee has just reflected on that. 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 to stage 2. 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.

I did not benefit from the evidence from interested parties that would usually form a key part of stage 1 scrutiny of the bill. Although the bill is undoubtedly well intentioned, it is unlikely to lead to fewer or quicker defence post mortems. In fact, it is difficult to achieve fewer than none at all, as is currently the case. Conversely, my concern is that by requiring defence agents to put up or shut up, as it were, it is very likely to encourage them to put up. The bill is likely to compel defence agents to meet the requirements of their professional responsibilities by instructing their own examination. Indeed, the timetable allows them little other choice. There is a real risk that the bill would thus lead to more defence post mortems, rather than fewer. I am also concerned about the possible implications of the requirements to make applications to the court. That may require the disclosure of details of investigations that are being undertaken. In some cases, the next of kin may also be the accused or be under suspicion.

The 14-day time limit is the issue that gives me the most concern. The bill states that that would run from the notification of the cause of death, which Mr Paterson reiterated. However, the mere cause of death tells defence agents very little; only with the production of the draft full post mortem report can they make an informed decision on whether to require their own examination. The Crown indicates that the production of such a draft takes, on average, 14 days, which leaves no time to make a decision.

There are further drafting problems, but the overriding consideration is that any imposition of a time limit—whether that is 14 days or longer—is much more likely to do harm than good. Thanks to the success of the protocol, we are in an enviable position on post mortems.

I ask the Parliament to recognise the significant progress made with the development of the protocol. In addition, given the lack of scrutiny of the bill at stage 1 and the Scottish Government’s policy concerns, we simply cannot support the bill progressing to stage 2.