Oldham Metropolitan Borough Council and Another v Robin Makin and Others
| Jurisdiction | England & Wales |
| Judge | Sir Geoffrey Vos |
| Judgment Date | 13 October 2017 |
| Neutral Citation | [2017] EWHC 2543 (Ch) |
| Docket Number | HC-2017-002064,Case No: HC-2017-002064 |
| Court | Chancery Division |
| Date | 13 October 2017 |
In The Matter Of Ian Stewart-Brady Deceased
And The Senior Courts Act 1981
And The Public Health (Control of Disease) Act 1984
[2017] EWHC 2543 (Ch)
REDACTED VERSION
Sir Geoffrey Vos, Chancellor of the High Court
Case No: HC-2017-002064
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
The Rolls Building
The Royal Courts of Justice
7 Rolls Building, Fetter Lane,
London EC4A 1NL
Mr Nigel Giffin QC (instructed by Hill Dickinson LLP) appeared for the claimants
Mr Richard Moore (instructed by E Rex Makin and Co) appeared for the first defendant
Ms Debra Powell QC (instructed by DAC Beachcroft LLP) appeared for the second defendant
Mr Louis Browne QC (instructed by Sefton Metropolitan Borough Council) appeared for the third defendant
This note is to accompany the redacted judgment making clear that passages redacted have been removed at the judge's direction, but that the judgment will be published in an unredacted form when the judge so directs.
Hearing dates: 9 th and 10 th October 2017
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Sir Geoffrey Vos, the Chancellor of the High Court:
Introduction
This claim concerns the question of whether certain orders should be made in respect of the disposal of the body of Ian Stewart-Brady, formerly Ian Brady (the "deceased"), one of the infamous Moors murderers.
The three alternative orders sought by the claimants are (i) to appoint the Oldham Metropolitan Borough Council ("Oldham") and the Tameside Metropolitan Borough Council ("Tameside") as administrators of the deceased's estate under section 116 of the Senior Courts Act 1981 ("Section 116") for the limited purpose of arranging for the disposal by the Sefton Metropolitan Borough Council ("Sefton") of the deceased's remains, alternatively (ii) that directions be given as to the disposal of the deceased's remains, alternatively (iii) a declaration that Sefton is obliged and entitled to cause the deceased's body to be buried or cremated pursuant to section 46(1) of the Public Health (Control of Disease) Act 1984 ("Section 46").
It will make this judgment more intelligible if I set out immediately the provisions of Sections 46 and 116. Section 46(1) provides that "[i]t shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority". In this case, the relevant local authority is Sefton, which I re-joined as a party to these proceedings on the second day of the hearing in circumstances I shall shortly describe.
Section 116 provides that:-
"(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit."
As things turned out at the hearing, the claimants sought an order that [REDACTED], be appointed as individual administrators for the limited purpose mentioned in place of Oldham and/or Tameside themselves. This change arose as a result of a contention made on behalf of the first defendant that letters of administration cannot be granted to bodies corporate like Oldham and Tameside unless they are trust corporations (which they are not). In the circumstances, I will not need to deal with this technical argument, since it is common ground that I can, at least in theory, make a grant of letters of administration to [REDACTED].
In addition to dealing with those issues, I shall give my reasons in this judgment for having ordered at the outset of the hearing on Monday 9 th October 2017 that the proceedings should, subject to certain specific limitations and for limited periods, be heard in open court.
The competing positions of the parties are straightforward. The deceased died on 15 th May 2017 at Ashworth high security psychiatric Hospital in the area of Sefton, having been incarcerated for many years after he received a sentence of life imprisonment for the Moors murders in the 1960s. He appointed Mr Robin Makin, a solicitor and the first defendant ("Mr Makin"), as his executor. The claimants are concerned that Mr Makin has failed to make proper arrangements for the disposal of the remains of the deceased, now nearly 5 months after his death.
The second defendant is [REDACTED] ("X"). X has also made a cross-application for an order under the inherent jurisdiction of the court that if, within 28 days of the determination of the proceedings, the body has not been removed [REDACTED] by Mr Makin or another person so entitled, it should be permitted to arrange for its burial or cremation. X submits that the deceased's body should be lawfully and decently disposed of without further delay.
Mr Makin, as the deceased's designated executor, correctly claims that he is primarily entitled to dispose of the deceased's remains. As Hale J put the matter in Buchanan v. Milton [1999] 2 FLR 844 at pages 845–6:-
"There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration (see Dobson)".
Against that background, Mr Makin contended, until the hearing itself, that he had been attempting to dispose of the deceased's remains, but that he was justifiably "reluctant to give details to anyone as to what he is doing except as absolutely necessary". He claimed to have been hindered in that process by the other parties to these proceedings. Mr Makin submits that no injunction has been sought against him, and even if it had, there would have been no basis on the available evidence for it to be granted. The claimant authorities are [REDACTED] away from the remains of the deceased and, therefore, have no standing to apply for an order under Section 46. In any event Mr Makin argues that his previous refusal to go into details of what he is trying to do in respect of arranging the deceased's disposal and funeral is obviously reasonable in the light of the public interest in the matter. As the remainder of this judgment will show, Mr Makin relented in the course of the hearing before me, and did, through his counsel, provide some details of how he intended to dispose of the deceased's body. He gave those details in the course of parts of the hearing that I permitted to take place in private.
The issues
After a number of changes of position in the course of the hearing, it seems to me that the following issues remain for my determination:-
i) Has the duty on Sefton under Section 46 been engaged? If so, how should it be carried out?
ii) Does the court have jurisdiction to make a partial administration order under Section 116 in favour of someone other than Mr Makin? If so, should it do so on the grounds that (a) special circumstances exist, and (b) it appears to the court to be necessary or expedient to do so?
iii) If the court is to appoint an administrator, who should be appointed?
iv) Can the court give detailed directions as to the disposal of the deceased's remains either under its inherent jurisdiction or under Section 116? If so, should it do so in this case?
v) If the court can and should give detailed directions as to the disposal of the deceased's remains, what directions are appropriate?
Before dealing in more detail with these issues, I should set out, so far as relevant, the factual background.
Factual Background
As I have said, the deceased died in the borough of Sefton, Merseyside on 15 th May 2017. It appears that the deceased died leaving a will appointing Mr Makin as an executor. Mr Makin told me, through his counsel, that he had not yet applied for probate and that he did not intend to do so until after the disposal of the body, because the will would thereby become a public document. The court has not been shown a copy of the deceased's will.
On 16 th May 2017, Mr Christopher Sumner, senior coroner (the "Coroner"), opened an inquest into the deceased's death. At the hearing, the Coroner said that he had received a request to release the deceased's body, but that he wanted certain assurances before doing so "as [public] emotions were [running] high". The assurances he sought were, first, that the person who asked to take over responsibility for the funeral had a funeral director and a crematorium able and willing to deal with the matter, and secondly, that the deceased's ashes would not be scattered on Saddleworth Moor (the location of some of Mr Brady's murders), which he said would be offensive. It appears that the Merseyside Police may have expressed some...
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