Kelly & Anor, R v [1998] EWCA Crim 1578 (14 May 1998)

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ANTHONY-NOEL KELLY NIEL LINDSAY, R v. [1998] EWCA Crim 1578 (14th May, 1998)

THE VICE PRESIDENT: 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 accepted that when he was first questioned by the police, he had lied by saying that he had taken all the parts. That was in order to keep Kelly out of it, and indeed, Kelly himself had said that Lindsay was to say, if asked, that he, Kelly, had taken the parts. He said, in cross-examination, that he felt justified in his actions because he believed the college were keeping the parts illegally.

In the course of his summing-up, the learned judge directed the jury that the college was in lawful possession of the parts at the time they were taken. That gives rise to a third complaint, additionally to the two other matters to which summarily we have already referred, on the basis of which it is said that this Court should find the convictions of these appellants to be unsafe.

On behalf of the appellant, Lindsay, in submissions adopted by counsel on behalf of Kelly, Mr Thornton QC submits, as we have indicated, that the jury's verdict was unsafe, first, because the body parts were not property and therefore could not be stolen, secondly, because they did not belong to the Royal College of Surgeons because they were not lawfully in their possession, and thirdly, because the judge's direction that the college was in lawful possession was a prejudicial misdirection of the jury.

In support of those submissions, Mr Thornton advanced eight propositions. First, that the common law rule applies to corpses to be buried but not yet buried. Such, he submits, are not property. Secondly there has been, until this case, no prosecution for theft of a body or body parts, although there do exist in other Acts, in particular the Anatomy Act of 1832, certain statutory offences, in relation to corpses and parts of corpses, which are - it is perhaps worth noting in passing - susceptible to a maximum sentence of imprisonment of 3 months. Thirdly, the common law rule extends to parts of bodies as well as to the entire corpse. Fourthly, the body parts in the present case were not property, they were intended by their donors for burial, and the resolution of that matter, clearly one of fact, was one which could only be favourable to the defence. Fifthly, there is no exception to the general common law rule.

For this part of his submission, it was pertinent for him to take the court, as he did, to do Doodeward and Spence , to which we have already referred. The first of the two majority judgments in that Australian case was given by Griffith CJ at page 413 of the report. He said this:

"It is idle to contend in these days that the possession of a mummy, or of a prepared skeleton, or of a skull, or other parts of a human body, is necessarily unlawful; if it is, the many valuable collections of anatomical and pathological specimens or preparations formed and maintained by scientific bodies, were formed and are maintained in violation of the law.

In my opinion there is no law forbidding the mere possession of a human body, whether born alive or dead, for purposes other than immediate burial. A fortiori such possession is not unlawful if the body possesses attributes of such a nature that its preservation may afford valuable or interesting information or instruction."

"...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 a right 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, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances."

Higgins J gave a dissenting judgment at page 417. He referred at page 422, to the transformation of a corpse into a mummy, by the skill of an embalmer turning it into something different. He went on at page 423 to say that such traffic as there is in skulls and bones is clandestine. If they come from dissecting rooms, they come in violation of the law. He went on to say that no dead body could be used for dissection except under very stringent conditions and when the dissection was over the body must be decently interred. He said this, which is much relied upon by the appellants in this Court:

"...I rather think that sundry contraventions of the strict law as to dead bodies are winked at in the interests of medical science, and also for the practical reasons that no one can identify the bones or parts, and that no one is interested in putting the law in motion."

Mr Thornton draws attention to the fact that that authority, which related to a two headed still born fetus preserved as a curio, arose from a claim in detinue and he relies, as we have said, on the dissenting judgment of Higgins J. The facts of that case, he says, are plainly distinguishable from the present, because the nature of the object there in dispute rendered it something wholly different from a corpse or part of a corpse.

He submitted that there cannot be property for the purposes of the Theft Act, unless there is a permanent right to possession vested in the person from whom the property is taken. He submitted that the decision of the English Court of Appeal in Dobson v North Tyneside Health Authority [1996] 4 All ER 474, does not lend succom to the Doodeward exception. He submitted that no amount of skill expended on a body part can affect its ownership; at the highest, it might affect possessory rights.

His sixth submission was that the body parts in question did not belong to anybody. He further submitted, in his seventh submission, that the Royal College of Surgeons, albeit in control and factual possession, were not in lawful possession because of the expiry of the 2 year period under the 1832 Anatomy Act, and he drew attention to certain sections in that Act.

He drew the Court's attention to the case of R v Turner (No 2) [1971] 2 All ER 441. In that case, the owner of a car, having taken it to a garage to be repaired, removed it a few hours later without telling the garage proprietor. The learned judge directed the jury, in terms which the Court of Appeal held were proper, that, in order to find the owner guilty of theft, it was essential to prove that he had acted dishonestly and, in weighing his evidence, it was immaterial that he had no basis in law for his belief that he had claim of right to the car. Lord Parker CJ giving the judgment of the Court, the other members of which were Lord Justice Widgery and Mr Justice Budge said this at page 443A:

"...the sole question was whether Mr Brown had possession or control. This court is quite satisfied that there is no ground whatever for qualifying the words 'possession or control', in any way. It is sufficient if it is found that the person from whom the property is taken, or to use the words of the Act, appropriated, was at the time in fact in possession or control. At the trial there was a long argument whether that possession or control must be lawful, it being said that by reason of the fact that this car was subject to a hire-purchase agreement, Mr Brown could never even as against the appellant obtain lawful possession or control. As I have said, this court is quite satisfied that the judge was quite correct in telling the jury that they need not bother about lien, and that they need not bother about hire-purchase agreements. The only question was: was Mr Brown in fact in possession or control."

Mr Thornton submits that that case has not only been criticised by Professor Sir John Smith QC in an article to which he drew our attention, but it is to be understood as limited to the facts of the particular case and should not be regarded as any authority, for present purposes, as to the construction of section 5(1) of the Theft Act.

"I direct you that the college was in lawful possession of all of these specimens. In that case the law is that they must be treated as their property. But of course that does not mean that you should ignore the points made by the defence. Far from it. The defendants are, nevertheless, entitled to say, if it is true: 'Well, whatever the position may have been, we honestly believed, perhaps mistakenly, but we honestly believed that the parts had been abandoned or didn't belong to anyone,' and the defence are entitled to ask you to consider that."

It is to be noted that in Volume 2 of the summing-up, at its inception, the learned judge in the course of directing the jury as to the ingredients of the offences which they must find proved before they could convict, devoted a number of pages to a direction as to dishonesty. In particular, he said this, at page 10E:

"...in deciding whether the defendants were acting honestly, you are, of course, entitled to take into account everything that they have said to you, about believing these body parts did not belong to anybody; they had been abandoned, and in Lindsay's case, that nobody at the Royal College of Surgeons would have minded if they had known what was going on; if they honestly and genuinely believed these things, even if that honest belief may have been mistaken, that would plainly be evidence that they were not acting dishonestly."

Mr Munyard, on behalf of Kelly, as we have indicated, adopts the submissions made by Mr Thornton. He took us in further detail to the dissenting judgment of Higgins J, in the Doodeward case. He submitted that in Dobson, Peter Gibson LJ was, in the course of his judgment, saying merely that if the Doodeward exception was arguable, it was not arguable on the facts of that case and therefore no support was given to the Doodeward exception by the Court of Appeal's decision. As to Turner (No 2), he submits that the issue of whether possession was lawful did not arise in that case and, in consequence, the observations of the Lord Chief Justice should not afford any assistance to this Court.

He also referred to a passage in the summing-up, Volume 2, page 8H, in relation to distinguishing dishonesty from motive and the possibility that they could be interrelated. He made a further submission that the learned judge did not, as Mr Munyard submits he should have done, repeat his directions with regard to the burden of proof when, at a later stage in his summing-up, he was rehearsing the material matters so far as prosecution and defence were concerned. He submits that that too is a reason for regarding his client's conviction as being unsafe.

His final submission was that the prosecution for the offence of theft was effectively the implementation of retrospective legislation, contrary to the European Convention on Human Rights, and that such a prosecution therefore gave rise to a breach of the appellant's rights under the convention. It is sufficient to say, in relation to that last submission, first, that the convention is not presently part of English law; secondly, that elucidation of the common law cannot, as it seems to us, give rise to retrospective legislation; and thirdly that, to the knowledge of one member of this Court, an argument along these lines was rejected, at first instance and not renewed on appeal to this Court. In an unreported case tried at the Winchester Crown Court in 1992, following the House of Lords decision in R [1992] 1 AC 599, that a husband could be guilty of raping his wife. Accordingly, we do not accept this submission.

It is convenient to deal with the other subsidiary submissions which Mr Munyard makes. So far as the burden of proof is concerned, that was fully and clearly set out by the learned judge at the beginning of his summing-up, as one would expect. We see no reason whatever why subsequently he should have returned to that subject when dealing with the facts of the case. We see nothing in his directions on that matter which could render the verdicts unsafe.

Mr Campbell-Tiech, on behalf of the prosecution, advanced before this Court a submission which was not made to the learned trial judge, namely, that a corpse and parts of a corpse are property within section 4 of the Theft Act; a thing is either property or not. The status of the holder of the thing is irrelevant to determination of whether it is property or not, as is equally irrelevant the intention of the holder of the thing. Section 4 deals with property. Section 5 deals with rights over property. There is no overlap between the two sections. The common law in relation to corpses and parts of corpses deals with rights over things, and that is the province of section 5, not section 4. The common law doctrine as to who has the right to possession or control is irrelevant to whether a thing is property. Parts of a corpse have all the properties of a thing; the common law relates to rights not things. In the Theft Act, Parliament did not declare that a corpse was not property and could not be stolen. As a matter of statutory construction, a corpse or part of a corpse is within the definition of property in section 4.

We have sought summarily to rehearse Mr Campbell- Tiech's argument lest this matter proceed further. But, as we indicated to him and other counsel in the case, bearing in mind that the submission was not made before the learned trial judge, bearing in mind the way in which the matter proceeded before him and bearing in mind the terms of his certificate to this Court, Mr Campbell-Tiech's submission is not one which we shall regard as being in any way determinative of this appeal. We merely comment that the draftsmen of the Theft Act must presumably have been well aware of the state of the common law for the last 150 years or more, and they do not appear to have made any exception in the Theft Act by reference to it.

We return to the first question, that is to say whether or not a corpse or part of a corpse is property. We accept that, however questionable the historical origins of the principle, it has now been the common law for 150 years at least that neither a corpse, nor parts of a corpse, are in themselves and without more capable of being property protected by rights (see, for example, Earl J, delivering the judgment of a powerful Court of Crown Cases Reserved in the R v Sharp 1857 Dears & Bell 160, at page 163, where he said:

If that principle is now to be changed, in our view, it must be by Parliament, because it has been express or implicit in all the subsequent authorities and writings to which we have been referred that a corpse or part of it cannot be stolen.

To address the point as it was addressed before the trial judge and to which his certificate relates, in our judgment, parts of a corpse are capable of being property within section 4 of the Theft Act, if they have acquired different attributes by virtue of the application of skill, such as dissection or preservation techniques, for exhibition or teaching purposes: see Doodeward and Spence , in the judgment of Griffith CJ to which we have already referred and Dobson v North Tyneside Health Authority where, at page 479, this proposition is not dissented from and appears, in the judgment of this Court, to have been accepted by Peter Gibson LJ; otherwise, his analysis of the facts of Dobson, which appears at that page in the judgment, would have been, as it seems to us, otiose. Accordingly the trial judge was correct to rule as he did.

Furthermore, the common law does not stand still. It may be that if, on some future occasion, the question arises, the courts will hold that human body parts are capable of being property for the purposes of section 4, even without the acquisition of different attributes, if they have a use or significance beyond their mere existence. This may be so if, for example, they are intended for use in an organ transplant operation, for the extraction of DNA or, for that matter, as an exhibit in a trial. It is to be noted that in Dobson, there was no legal or other requirement for the brain, which was then the subject of litigation, to be preserved (see the judgment of Peter Gibson LJ at page 479 G).

So far as the question of possession by the Royal College of Surgeons is concerned, in our judgment the learned judge was correct to rule that the college had possession, sufficiently for the purposes of and within section 5(1) of the Theft Act 1968. We are unable to accept that possession, for the purposes of that section, is in any way dependent on the period of possession, i.e. whether it is for a limited time, or an indefinite time. In our judgment, the evidence, so far as it was material, before the jury, was to the effect that factually, the parts were in the custody of the Royal College of Surgeons. They were, as it seems to us, in their control and possession within the meaning of section 5(1).

That conclusion is, as it seems to us, reinforced by the judgment of the Court of Appeal in Turner No 2. We do not accept that the passage in Lord Parker's judgment which we have read is to be regarded as limited to the facts of that particular case. In expressing the view that no other word such as 'lawful' was to be read into section 5(1), by reference to possession, that Court was construing section 5 entirely consonantly with the construction which we now place upon it for the purposes of this appeal.

There remains the submission as to the judge's direction that the college was in lawful possession of the parts. It is implicit in what we have already said that the lawfulness of the possession was not a matter for necessary enquiry in the trial. There was, as we have said, evidence before the jury as to the fact of possession of these parts, coming from the inspectors of anatomy. Their views as to the law, as we have already indicated, seem to us to be a matter of no relevance or materiality in relation to any issue which the jury had to determine. It follows that it was not necessary for the judge to direct the jury that the college was in lawful possession rather than merely in possession. The question which arises is whether that direction was of a nature to undermine and prejudice the defence of the appellants. We, in the light of the other passages in the summing-up in relation to dishonesty which we have already cited, are wholly unpersuaded that that is a tenable view.

Applications for leave to appeal against sentence were referred to the Full Court, in the case of Kelly by the Single Judge and, in the case of Lindsay, by the Registrar. We grant both applicants leave to appeal against sentence.

Both appellants are of hitherto good character. Lindsay at the time of the offence, which, it is to be noted, was committed some 4 or more years ago, was under 21 years of age. The offence in his case gave rise to a breach of trust. The learned judge accepted, that he was motivated not by malice or greed, although he received the not insignificant sum of £400 for doing that which he did. But we accept that financial reward was not his prime reason for doing what he did. His activity was motivated by reasons, however misguided, as to how he thought his employers ought to have been behaving. It is of particular significance in his case that his involvement in these matters came about because he was persuaded to act as he did by a man who was not only considerably older, but who had a considerable force of personality.

So far as Kelly is concerned, as we have said, he too was a man of good character. We are prepared to accept that he had no direct financial motive for doing what he did, and that he was primarily motivated by what he regarded as artistic reasons.

The first question which arises is whether the circumstances of the case render the offence so serious that only a custodial sentence can be justified, that is, does the offence cross the custody threshold in section 1(2)(a) of the Criminal Justice Act 1991? In our judgment, it does. The theft of a substantial number of body parts, albeit comparatively old body parts is, as it seems to us, something which most members of the general public would view with repugnance. It is, furthermore, an activity which might have a dissuading effect on the mind of someone who was contemplating donating his body for scientific research.

The next question is the length of sentence which the criminality of the particular defendant properly should attract. In the case of R v Ollerenshaw (23rd April 1998) appears this passage at page 6A of the approved transcript of the Court's judgment:

"When a court is considering imposing a comparatively short period of custody, that is of about 12 months or less, it should generally ask itself, particularly where the defendant has not previously been sentenced to custody, whether an even shorter period might be equally effective in protecting the interests of the public, and punishing and deterring the criminal. For example, there will be cases where, for these purposes, 6 months may be just as effective as 9, or 2 months may be just as effective as 4. Such an approach is no less valid, in the light of today's prison overcrowding, than it was at the time of

Taking into account the differing roles played by these two appellants, we are of the view that, in the case of Lindsay, a sentence of imprisonment of 2 months would be appropriate, and in the case of Kelly, who has served already 6 weeks, a sentence of 3 months' imprisonment would be appropriate.

So far as Kelly is concerned, we are not able to find that there are exceptional circumstances which would justify the suspension of his sentence. It is true that this was a prosecution which was the first of its kind, but that alone, in our judgment, is not capable of giving rise to exceptional circumstances within the meaning of section 22(2) of the Powers of Criminal Courts Act 1973, as amended by section 5 of the Criminal Justice Act 1991.

So far as Lindsay is concerned, however, because of his age at the time and because his involvement in these matters was due to the pressures brought upon him by the older man, we are with some hesitation, prepared to accept the learned judge's finding, that there were exceptional circumstances in his case, justifying the suspension of the sentence of imprisonment upon him. Accordingly the appeals against sentence in relation to both appellants will be allowed. In relation to Lindsay, the sentence of 6 months will be quashed. There will be substituted for it a sentence of 2 months' imprisonment suspended for 2 years. In the case of Kelly, the sentence of 9 months immediate imprisonment imposed by the learned judge will be quashed and there will be substituted for it a sentence of 3 months immediate imprisonment.

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	England and Wales Court of Appeal (Criminal Division) Decisions
You are here: BAILII >> Databases >> England and Wales Court of Appeal (Criminal Division) Decisions >> Kelly & Anor, R v [1998] EWCA Crim 1578 (14 May 1998) URL: http://www.bailii.org/ew/cases/EWCA/Crim/1998/1578.html Cite as: [1999] QB 621, [1999] 2 WLR 384, (2000) 51 BMLR 142, [1998] EWCA Crim 1578, [1998] 3 All ER 741

England and Wales Court of Appeal (Criminal Division) Decisions

ANTHONY-NOEL KELLY NIEL LINDSAY, R v. [1998] EWCA Crim 1578 (14th May, 1998)