R v Kelly
| Jurisdiction | England & Wales |
| Judge | THE VICE PRESIDENT |
| Judgment Date | 14 May 1998 |
| Judgment citation (vLex) | [1998] EWCA Crim J0514-16 |
| Docket Number | No: 9802238/X5-9802318/X5 |
| Court | Court of Appeal (Criminal Division) |
| Date | 14 May 1998 |
[1998] EWCA Crim J0514-16
The Vice President
(Lord Justice Rose)
Mr Justice Ognall
and
Mr Justice Sullivan
No: 9802238/X5-9802318/X5
IN THE COURT OF APPEAL CRIMINAL DIVISION
Royal Courts of Justice
The Strand
London WC2
MR T MUNYARD appeared on behalf of the Appellant KELLY
MR P THORNTON QC appeared on behalf of the Appellant LINDSAY.
MR A CAMPBELL-TIECH appeared on behalf of the Crown
Thursday 14th May 1998
On 3rd April 1998 at Southwark Crown Court, these appellants were convicted of one offence of theft. Kelly was sentenced to 9 months' imprisonment, and Lindsay to 6 months' imprisonment suspended for 2 years. They appeal against conviction by certificate of the trial judge, His Honour Judge Rivlin QC, 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."
The facts were these. Between 1992 and 1994, the appellant, Kelly, who is 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. The appellant, Lindsay, was employed by the college during that period as a junior technician. Between 1993 and 1994, Kelly, who was then in his late thirties, asked Lindsay, who was under 21, 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 intended to return the body parts, many of which Kelly buried in a field in the grounds of his family home. Part of a leg was kept in the attic of his home. The remaining parts were recovered from the basement of a flat occupied by one of Kelly's friends.
The crucial issue for the jury, when the matter was left for their consideration, was whether the appellants had acted dishonestly or whether, at the time they took the body parts, they acted in the honest belief that they had the right to do so. It was accepted, for the purposes of the hearing, that all the specimens in question antedated in age the Anatomy Act of 1984 which had come into force in early 1988. All the specimens taken had been preserved or fixed by college staff or other medical agencies. All were subject to a regular scheme of inspection, preservation, and maintenance and most of them had been the subject of further work, by prosection, whereby they had been expertly dissected so as to reveal, in highlighted form, the inner workings of the body.
There was evidence that the appellants would not have been permitted to remove body parts from the building under any circumstances. Permission could only be given by a licensed teacher of anatomy for the disposal of the specimens. It was elicited in cross-examination that some of the specimens at the college were no longer in use because of their poor condition due to age, and that other parts had, on occasions, left the college for the purposes of burial or cremation.
There was evidence that the preparation of the specimens by prosection, to which we have referred, would have involved many hours, sometimes weeks, of skilled work. There was also evidence that the type of dissection indicated that the work was that of a previous generation of anatomists, thereby throwing some light on the age of the parts.
There was evidence that parts kept in the demonstration room would be up to 20 years old, but those in the basement store would be much older. It was not possible to say whether the specimens taken by the appellants had come from the demonstration room or the basement.
There was evidence from the current inspector of anatomy to the effect that the college had full authority to be in possession of these specimens. In cross-examination, he said it was his understanding that the 1832 Anatomy Act did not apply. There was similar evidence from the inspector of anatomy at the time the parts were taken, between 1991 and 1995.
There was a good deal of material placed before the jury, in the form of a jury bundle, which is before this Court, containing letters written by various people, in 1944, on the basis of which arguments were advanced as to the belief as to whether or not the possession of the Royal College of Surgeons was lawfully well-founded. We have to say that, for our part, we find no relevance whatever in those documents to any issue which was before the jury.
Kelly was interviewed on a number of occasions by the police. He said he understood the body parts were old, but that they were extremely valuable to the college. He thought that after 4 years the college required a certificate to retain the parts, which they did not have, and he considered that he was intercepting the parts which were "on their way to the grave". Nobody, he agreed, had given him permission to remove the items. He said at first that he had buried all of them but subsequently he gave the address of a friend, to which earlier we referred, where some of the parts were stored. When he was charged with theft and dishonest handling he said he did not intend to commit either such offence.
The appellant, Lindsay, in interview, referred to the age of the anatomical specimens and to the unusual access given to Kelly to the demonstration rooms and basement store. He said that his understanding of the law was that the college was only allowed to keep specimens for a period of 3 years, after which they had to be buried. He said that Kelly had asked him to remove the items, so that castings could be made in the way which we have described and he, Lindsay, agreed to that on condition that Kelly buried the parts afterwards. Lindsay said he took the items from the anatomy store or the storage tanks which were usually in the demonstration rooms. He removed the identification labels which he threw in a bin. Kelly had paid him £400 for his services but, he said, his main interest was in having the pieces buried.
A submission was made to the learned judge on behalf of the defence at the close of the prosecution. The first part of that submission was that parts of bodies were not in law capable of being property, and therefore could not be stolen. The judge ruled, in favour of the Crown, that the specimens were property, because of an exception to the common law rule, in the terms of the certificate which he has given for the purposes of the appeal to this Court, the basis of that exception being a decision of the High Court of Australia in R v Doodeward and Spence 1908 6 CLR 406.
The further submission was made that the specimens were not in the lawful possession of the college at the time they were taken, and therefore could not have been stolen. It was, however, accepted that the college was physically in possession of the specimens, but the submission was made at that time that that possession was governed by the provisions of the Anatomy Act 1832 and, in consequence, the college's possession was unlawful because the specimens had been retained beyond the period of 2 years, referred to in that Act by way of amendment, before burial. The learned judge rejected that submission on the basis that possession and control in the accepted terms of those words for the purposes of the Theft Act, was not in issue. He found that there was certainly no evidence before the court to support the suggestion that the college's possession and control was unlawful. To those submissions, which have been repeated in this Court, we shall in a moment return in a little more detail.
The judge having ruled in favour of the Crown, the appellant, Kelly, gave evidence about his work as an artist and his interest in things both living and dead. He described becoming friends with Lindsay and said that he had not sought permission either to remove the pieces from the college's possession, or to do any casting or moulding work in relation to those specimens. He said he had not sought that permission lest it be refused. He said that he may well have convinced his co-accused that the plans for removal and use of these parts were highly important. He had not however wanted to get Lindsay into trouble, and Lindsay had said he would remove them provided he, Kelly, buried them. He accepted that, prior to his arrest, he had concocted and recorded in his diary two stories as to how he had come into possession of the body parts. He said he made up the stories because he had taken the parts without permission. The £400 which he had paid to Lindsay was what he called "a compensating gesture", not payment for the parts.
Lindsay described taking the specimens. He said that he had never thought that it was wrong to supply them to Kelly. Some of them were in a very bad state. He did not think that he would have been given permission to remove them had he asked. All the parts were from the basement store and, he said, were no longer used for teaching purposes. He said he did not believe that he was doing wrong, or acting dishonestly. He...
To continue reading
Request your trial
-
Richard Holdich V. Lothian Health Board
...and labour have been applied to alter the quality of the thing [Dobson v North Tyneside Health Authority [1997] 2 WLR 596 and Reg v Kelly [1999] QB 621] applying Doodeward v Spence (1908) 6 CLR 406]. Legislative policy is generally consistent with the no-property principle. The Human Tissue......
-
R v Michael Edwin Reynolds
...He pleaded guilty, accepting that what he did went far beyond lawful chastisement. In this regard we were referred to the following cases, Kelly [1998] 2 Cr App R (S) 368, O'Gorman 1999 2 Cr App R (S) 280 and Sujan Ali [2002] 2 Cr App R (S) 542. From these cases it appears that a sentencing......
- Yearworth and Others v North Bristol NHS Trust
-
L v The Human Fertilisation & Embryology Authority and Another
...support of that the Claimant relied on s. 44 of the Human Tissue Act 2004, paragraph 17–39 of Clerk and Lindsell (19 th edn), R v Kelly [1999] 1 QB 621, in particular at 630–631 and Re Organ Retention Group Litigation [2005] QB 506, in particular at para 155 I do not accept that submission......
-
Table of Cases
...Embryology Authority ex parte Blood [1999] Fam 151, [1997] 2 WLR 806, [1997] 2 All ER 687, [1997] 2 FLR 742 139 R v Kelly; R v Lindsay [1999] QB 621, [1999] 2 WLR 384, [1998] 3 All ER 741, CA 134 R v Sharpe (1857) 21 JP 86, 3 Jur NS 192, 7 Cox CC 214 134 R v St George, Hanover Square, Overs......
-
Table of Cases
...2010 BCCA 105 ..................................................................................... 96 R v Kelly, [1998] EWCA Crim 1578, [1999] QB 621 ............................................ 12 R v Lowden (1981), 15 Alta LR (2d) 250, 27 AR 91 at 101 (CA) ........................ 183 R ......
-
Cases
...p Hillier (1998)162JP783187R vHoweand Son [1999] 2 All ER249427R vHowells(1998) 162 JP 731 222R v Jones (1999) 163 JP 97 339R v Kelly (1998) 3 All ER 741 25R v Kelly(Edward)[1999] 2 WLR1100446RvKennedy.(1999) 1 Cr App R 54 229R vKnightsbridgeCC,ex pFoot(1999) RTR21 180RvL[1999] 1 WLR 117 33......
-
Cases
...p Hillier (1998)162JP783187R vHoweand Son [1999] 2 All ER249427R vHowells(1998) 162 JP 731 222R v Jones (1999) 163 JP 97 339R v Kelly (1998) 3 All ER 741 25R v Kelly(Edward)[1999] 2 WLR1100446RvKennedy.(1999) 1 Cr App R 54 229R vKnightsbridgeCC,ex pFoot(1999) RTR21 180RvL[1999] 1 WLR 117 33......