Law Report: 4 June 1998 - Parts of a corpse were capable of being 'prop erty'

Regina v Kelly and another; Court of Appeal (Criminal Division) (Lord Justice Rose, Vice President, Mr Justice Ognall and Mr Justice Sullivan) 14 May 1998

PARTS of a corpse are capable of being property within section 4 of the Theft Act 1968, if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.

The Court of Appeal dismissed the appeals of Anthony-Noel Kelly and Niel Lindsay against their convictions on 3 April 1998 at Southwark Crown Court of theft.

Kelly, who was an artist, had privileged access to the premises of the Royal College of Surgeons in order to draw anatomical specimens held on display and used for training surgeons. Lindsay was employed by the college as a junior technician. Between 1993 and 1994 Kelly asked Lindsay to remove a number of human body parts from the college.

Some 35 to 40 such parts, including three human heads, part of a brain, six arms or parts of an arm, ten legs or feet, and part of three human torsos were removed and taken to Kelly's home. He made casts of the parts, some of which were exhibited in an art gallery.

Neither appellant had intended to return the body parts, many of which Kelly had buried in a field in the grounds of his family home. The remaining parts had been recovered from the basement of a flat occupied by one of Kelly's friends.

Terry Munyard (Registrar of Criminal Appeals) for Kelly; Peter Thornton QC (Stephens Innocent) for Lindsay; Andrew Campbell-Tiech (Crown Prosecution Service) for the Crown.

Lord Justice Rose VP said that the appellants appealed against their convictions by certificate of the trial judge in the following terms:

Whether the trial judge was correct in ruling as a matter of law that there is an exception to the traditional common law rule that "there is no property in a corpse", namely, that once a human body or body part has undergone a process of skill by a person authorised to perform it, with the object of preserving for the purpose of medical or scientific examination or for the benefit of medical science, it becomes something quite different from an interred corpse. It thereby acquires a usefulness or value. It is capable of becoming property in the usual way, and can be stolen.

However questionable the historical origins of the principle, it had been the common law for at least 150 years that neither a corpse, nor parts of a corpse, were in themselves and without more capable of being property protected by rights: see R v Sharp (1857) Dears & Bell 160

However, in the judgment of Chief Justice Griffith in the Australian case of Doodeward v Spence (1908) CLR 406:

A human body or a portion of a human body is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such rights may be acquired, but I entertain no doubt that when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it . . .

Parts of a corpse were, therefore, capable of being property within section 4 of the Theft Act 1968, if they had acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes.

Furthermore, the common law did not stand still. It might be that if the question arose on some future occasion, the courts would hold that human body parts were capable of being property even without the acquisition of different attributes, if they had a use or significance beyond their mere existence. That might be so if, for example, they were intended for use in organ transplantation, for the extraction of DNA or, for that matter as an exhibit in a trial.