Simpson's Forensic Medicine, 14th Edition

Jason Payne-James, Richard Martin Jones, Jason Payne-James, Richard Martin Jones

• Editore: CRC Press
• Anno: 2019
• ISBN:
  9781498704380
• Edizione: 14
• Argomento: Medicine
• Categoria: Medical Theory, Practice & Reference

Prestigious and authoritative, this fully updated fourteenth edition of Simpson's Forensic Medicine remains a classic; one of the world's leading introductory texts in the field of forensic medicine. It presents all that the generalist or student needs to know about the interface between medicine and the law.

1

Principles of forensic practice

▪Introduction

▪Legal systems

▪Doctors and other healthcare professionals and the law

▪Evidence for courts

▪Healthcare professionals as witnesses in court

▪Bibliography and information sources

▪Further general resources

Introduction

Different countries have different legal systems, which broadly divide into two areas of law – criminal and civil. The various systems have generally evolved over many years or centuries and are influenced by a wide variety of factors including culture, religion and politics. By and large, the rule of law has been established over many hundreds of years and is generally accepted because it is for the mutual benefit of the population – it is the framework that prevents anarchy. Although there are some common rules (e.g., concerning murder) that are to be found in every country, there are also considerable variations from country to country in many of the other codes or rules. The laws of a country are usually established by an elected political institution, the population accepts those laws and they are enforced by the imposition of penalties (such as fines, prison sentences, or community service) on those who are found guilty of breaking them.

Those working within the medical, healthcare and scientific professions are bound by the same general laws as the population as a whole, but they may also be bound by additional laws, rules, standards or regulations specific to their area of practice. Standards of practice may be described to which all should aspire, although deviation from best practice may be allowable depending on the nature of the standard. Each profession may, in addition to standard-setting bodies, also have its own regulatory body, which may also have the ability to sanction inappropriate professional behaviour, irrespective of whether laws have been broken. The training, qualification and registration of doctors, scientists and related professions is of great relevance at the current time, in light of the recognised need to ensure that evidence, both medical and scientific, that is placed before the court, is established and recognised. In the United Kingdom, the independent Forensic Science Regulator is tasked with establishing and enforcing quality standards for forensic science used in the investigation and prosecution of crime. Fraudulent professional and ‘hired guns’ risk undermining their own professions, in addition to causing miscarriages of justice where the innocent may be convicted and the guilty acquitted. It is crucial that medical and scientific professionals understand that the evidence they provide in any case, is only one part of the overall body of evidence and that, in contrast to how broadcast media represent us, the solving of crimes is generally the result of meticulous painstaking and often tedious effort as part of a multiprofessional team. The final arbiter of how that evidence is interpreted in the context of the case is the role of the judge (and in relevant jurisdictions, the jury).

The great diversity of the legal systems around the world poses a number of problems for authors when providing details or examples of the law in a book such as this. Laws on the same aspect often differ widely from country to country, and some medical procedures (e.g., abortion) that are routine practice (subject to appropriate legal controls) in some countries are considered to be a crime in others. Within the United Kingdom, England & Wales has its own legal system, and Scotland and Northern Ireland have their own legal traditions which, although distinct from that of England & Wales, share many values. There are also smaller jurisdictions with their own individual variations in the Isle of Man and the Channel Islands. Overarching this is European legislation and with it the possibility of final appeals to the European Court, although the nature of this may change dependent on the outcome of negotiations of the United Kingdom in leaving Europe. That body of law will however, still remain. Other bodies (e.g., the International Criminal Court) may also influence regional issues and particular types of cases, such as war crimes.

Where relevant, this book will utilise the England & Wales legal system for most examples, making reference to other legal systems if necessary. However, it is down to the individual professional who is working in, or exposed to, forensic matters to be aware of those current laws, statutes, codes and regulations that not only apply generally but also specifically to their own area of practice and in their own jurisdiction.

Legal systems

Laws are rules that govern orderly behaviour in a collective society and the system referred to as ‘the Law’ is an expression of the formal institutionalisation of the promulgation, adjudication and enforcement of rules. There are many national variations but the basic pattern is often similar. The exact structure is frequently developed from, and thus determined by, the political system, culture and religious attitudes of the country in question. In England & Wales, the principal sources of these laws are Parliament and the decisions of judges in courts of law. Criminal courts generally deal predominantly with disputes between the State and individual, and the civil courts with disputes between individuals. Most jurisdictions will have a range of other legal bodies that are part of these systems or part of the overall justice system (e.g., employment tribunals, asylum tribunals, mental health review tribunals and other specialist dispute panels) and such bodies may deal with conflicts that arise between citizens and administrative bodies, or make judgements in other disputes. All such courts, tribunals or bodies may, at some stage, require input from medical and scientific professionals.

In England & Wales, decisions made by judges in the courts have evolved over time and this body of decisions is referred to as ‘common law’ or ‘case law’. The ‘doctrine of precedent’ ensures that principles determined in one court will normally be binding on judges in inferior courts. The Supreme Court of the United Kingdom is the highest court in all matters under English and Welsh law, Northern Irish law and Scottish civil law. It is the court of last resort and highest appeal court in the United Kingdom; however, the High Court of Justiciary remains the highest court for criminal cases in Scotland. The Constitutional Reform Act 2005 established (amongst other functions) a Supreme Court which assumed the judicial functions of the House of Lords, which were previously undertaken by the Lords of Appeal in Ordinary (commonly called Law Lords). The ‘long title’ of the Act further detailed the changes it enacted – ‘An Act to make provision for modifying the office of Lord Chancellor, and to make provision relating to the functions of that office; to establish a Supreme Court of the United Kingdom, and to abolish the appellate jurisdiction of the House of Lords; to make provision about the jurisdiction of the Judicial Committee of the Privy Council and the judicial functions of the President of the Council; to make other provisions about the judiciary, their appointment and discipline; and for connected purposes’. Along with the concept of Parliamentary Sovereignty is that the judiciary (the judges) are independent of state control, although the courts will still be bound by statutory law. This separation is one that is frequently and increasingly tested by politicians and the media in particular.

Criminal law

Criminal law is that law which addresses the relationship between the state and the individual and as such is probably the area in which medical and scientific knowledge requiring expertise within a legal setting (forensic medicine and forensic science) is most commonly required. Criminal trials involve offences that are ‘against the public interest’; these include offences against the person (e.g., murder, assault, grievous bodily harm, rape), property (e.g., burglary, theft, robbery), and public safety and security of the state (terrorism). In these matters, the state acts as the voice or the agent of the people. In continental Europe, a form of law derived from the Napoleonic era applies. Napoleonic law is an ‘inquisitorial’ system and both the prosecution and the defence have to make their cases to the court, which then chooses which is the more credible. Evidence is often taken in written form as depositions, sometimes referred to as ‘documentary evidence’. The Anglo-Saxon model applies in England & Wales and in many of the countries that it has influenced in the past. This system is termed the ‘adversarial’ system. If an act is ...