R v Kelly ; R v Lindsay
| Jurisdiction | England & Wales |
| Judgment Date | 14 May 1998 |
| Date | 14 May 1998 |
| Court | Court of Appeal (Criminal Division) |
Court of Appeal, Criminal Division
Before Lord Justice Rose, Mr Justice Ognall and Mr Justice Sullivan
Crime - theft - process turns parts of corpse into property
The common law rule that there was no property in a corpse or part thereof was confirmed subject to the exception that if a corpse or part thereof had undergone a process of skill with the object of preserving it, for example, for the purpose of medical or scientific examination, it thereby acquired a usefulness or value and was capable of becoming property and of being stolen.
The Court of Appeal, Criminal Division, so held dismissing the appeals of Anthony Noel Kelly and Niel Lindsay against their convictions on April 3, 1998 at Southwark Crown Court (Judge Rivlin, QC and a jury) for theft.
Mr Andrew Campbell-Tiech for the prosecution; Mr Peter Thornton, QC, assigned by the Registrar of Criminal Appeal, for Lindsay; Mr Terry Munyard, assigned by the Registrar of Criminal Appeals, for Kelly.
LORD JUSTICE ROSE said that the appellants had been found guilty of the theft of approximately 35 human body parts from the Royal College of Surgeons between June 1, 1991 and November 30, 1994.
The trial judge followed an Australian authority Doodeward v SpenceUNK ([1908] 6 CLR 406) and ruled as a matter of law that there was property in a human body or part thereof when it was altered in some way with the object of preserving it for the purposes of medical or scientific examination.
The appellants submitted that body parts were not property and could not be stolen, that the Royal College of Surgeons was not lawfully in possession of body parts, and that consequently the jury were misdirected as to the issue of dishonesty.
Mr Thornton advanced the following propositions; the common law rule that there was no property in a corpse applied to corpses to be buried but not yet buried, that there had been no prosecutions for the theft of a corpse or part thereof, that the common law rule applied to parts of a corpse as well as an entire corpse, that the body parts in the present case were not property and were intended by their donors for burial, that Doodeward v Spence provided no exception to the general common law rule that there was no property in a corpse or part thereof as it was concerned with a two-headed foetus and not a corpse and with detinue and not theft, that the body parts in question belonged to nobody, and that the...
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