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This is a repository copy of A grave offence: corpse desecration and the criminal law. 

White Rose Research Online URL for this paper: http://eprints.whiterose.ac.uk/110192/ Version: Accepted Version Article: Jones, SI orcid.org/0000-0003-2940-4431 (2017) A grave offence: corpse desecration and the criminal law. Legal Studies, 37 (4). pp. 599-620. ISSN 0261-3875 https://doi.org/10.1111/lest.12163 © 2017 The Society of Legal Scholars. This is the peer reviewed version of the following article: Jones, I. (2017) A grave offence: corpse desecration and the criminal law. Legal Studies, which has been published in final form at https://doi.org/10.1111/lest.12163. This article may be used for non-commercial purposes in accordance with Wiley Terms and Conditions for Self-Archiving. eprints@whiterose.ac.uk https://eprints.whiterose.ac.uk/ Reuse Items deposited in White Rose Research Onl

https://eprints.whiterose.ac.uk/110192/3/A%20Grave%20Offence%20Legal%20Studies%20Final.pdf

 A Grave Offence: Corpse Desecration and the Criminal Law* In January 2003, the body of a deceased Muslim woman, Habiba Mohammed, was found covered in rashers of bacon whilst it lay in a hospital morgue.1 In response, Sarah Joseph of the British Council of Muslims said that, ‘This was not only a Muslim but a human being. The desecration of any body will be condemned by everyone, there is not a sane person who would not be offended by this.’2 The sentiment represented by the notion of desecration here is that what was done was a serious and impermissible violation. Desecration can be understood more generally as treating sacred things and places with gross disrespect. In the context of human corpses, whilst individuals may be influenced by personal religious or spiritual beliefs, this ‘sacredness’ can be areligious. This is because the corpse is universally viewed as an important symbol of the previously living person. Corpses are also vital, yet painful, reminders of the vulnerability of human life. Subsequently, whether we adhere to religious, cultural or personal practices, many people have strong views about the treatment of the dead. These are often specifically directed at how the body is treated prior to disposal.3 It is predictable therefore that we have a strong emotional response * With thanks to Muireann Quigley, Iain Brassington, Heather Conway, David Parkinson and the anonymous reviewers for their comments on this article. I am also grateful to the many colleagues who have helped me to develop the ideas that eventually resulted in this article. They include Andrew Sanders, Rosie Harding and David Gurnham. Finally thanks to Stephen White who assisted me greatly in understanding the bizarre state of the common law. All errors remain my own.

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 1 See L Moss ‘Muslim woman's body found in hospital morgue covered with bacon’ (The Independent, 18th April 2003) accessed 20 October 2015. 2 ‘Horror at desecration of woman’s body’ (The Guardian, 18th April 2003) accessed 20 October 2015. 3 See M Brazier and S McGuinness, ‘Respecting the Living Means Respecting the Dead Too’ (2008) 28(2) Oxford Journal of Legal Studies 297.

when we hear that something unpleasant has happened to a corpse, especially where it is that of a loved-one. Whatever our personal beliefs, we have in common the feeling that it is a serious wrong to behave with disrespect towards human remains. Given our shared interest in the treatment of corpses, it might be expected that criminal law would be equipped to deal with violations of norms regarding the treatment of the dead. In the case of Mrs Mohammed’s body, police reportedly told the family that the acts involved could not be ‘tied’ to any particular crime.4 During the 2003 Parliamentary session when discussing the proposed criminalisation of the sexual penetration of a corpse, Lord Lucas raised this case noting that ‘There are many ways in which one can mutilate and dishonour a corpse…Why do we need a separate offence for something that is probably extremely rare, particularly given the fairly rare opportunities in our current society to commit that sort of offence?’5 Lord Falconer (then Lord Chancellor) could only respond that, ‘Existing legislation covers exhuming a dead body without lawful authority, but there is no other protection for the body of the person once he or she is dead.’6 It should not then be surprising that in Mrs Mohammed’s case, whilst two morgue workers were arrested on suspicion of causing a public nuisance, no prosecutions followed.7 Examination of existing common and statutory law reveals that whilst these guard against other types of mistreatment of the dead, they are inadequate to deal with private acts of corpse desecration. Where corpse desecration has potentially been penalised, this has been 4 H Muir, ‘Family to sue over hospital desecration’ 

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(The Guardian, 6th April 2004) accessed 20 October 2015. 5 HL Deb 19 May 2003: c576. 6 HL Deb 19 May 2003: c576. 7 ‘Two questioned over over desecrated body’ (The Guardian, 2nd June 2003) accessed 20 October 2014.

under the guise of some other offence, with the result that the wrongdoing has been inaccurately labelled. Appropriate labelling is important both for its communicative value and in ensuring that only those who are truly culpable being brought within the reach of the law.8 We will see that in other jurisdictions there is consistent recognition of the need to use the criminal law as tool to regulate and punish disrespectful acts done to dead bodies. That these laws elsewhere are invoked serves to underline the unfortunate reality that such acts do occur. I argue that the dead are sufficiently important for the criminal law to play a formal role in regulating their treatment. The clear social and cultural importance of the how the dead are dealt with means that it is crucial that this issue is properly tackled. This article therefore addresses this gap in the criminal law of England and Wales. I suggest that it is a moral wrong to act intentionally or (subjectively) recklessly with disrespect towards deceased bodies. This moral element means that we ought not to behave in such a way, but is insufficient alone to justify the use of criminal sanctions. It is my contention that the conditions for criminalisation are met when we appreciate the harm that that such acts can cause to the still living. By borrowing from the legal examples found in other jurisdictions it is possible to develop a model for criminal liability which is centred on the wrong done to the deceased body as an important symbol of a now deceased person whilst also ensuring that only those who are morally culpable are brought within the ambit of the criminal law. My goal here is not to present a detailed theoretical account of the interests of the dead or the boundaries of the criminal law. That would be a different and much larger task. 

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Instead these 8 A Simester and A von Hirsch, ‘Crimes, Harms and Wrongs’ (2011, Oxford: Hart) p19.

arguments contribute to the important issue of whether corpse desecration should be criminal and, if so, when. 1. Corpse desecration and the current criminal law There is a vast quantity of law which deals with the allocation of responsibilities when someone dies.9 A further body of law creates duties aimed at preventing health and safety hazards10 and yet another deals with burial and the disturbance of human remains.11 However, these do not deal with the mistreatment of the deceased body itself. The law capable to applying to such circumstances is primarily constituted of antiquated and vague common law offences, supplemented by statutory provisions dealing with very narrow circumstances (such as organ donation, medical research and coronial jurisdiction). Outlining these provisions makes clear that existing law is inadequate to deal with corpse desecration. Together with my argument for criminalisation in section 2 below, this establishes the need for legislative action. a) Common Law Offences The common law in England and Wales has developed over centuries, responding to situations as they arose. For our purposes, three key offences exist. These are public nuisance, outraging public decency and the prevention of a lawful and decent burial. There is an overlap between the first two of these, outraging public decency being a form of general 

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 9 See H Conway, ‘The Law and the Dead’ (Oxford: Routledge, 2016). 10 Health Protection (Local Authority Powers) Regulations 2010 SI 2010/657 9(6), 10(6), S3(1) Births and Deaths Registration Act 1953, Registration of Births and Deaths Regulations 1987 and Interpretation Act 1978 s17(2)(a). 11 See J Herring, ‘Crimes Against the Dead’, in Brooke-Gorden et al (Eds) Death Rites and Rights (Oxford: Hart, 2007) 219-221. See also Stephen White, Drawn and hung - or decently quartered. The Times (London, England), Tuesday, August 12, 1997, 33.

public nuisance. In the more narrow sense, the offence of public nuisance (or ‘common nuisance’) is understood to turn on the notion of behaviour which causes some injury to the public.12 In its modern incarnation, it is primarily invoked to deal with offences which ‘affect the safety or amenity of an area’13, that is, those actions which endanger the life or health of the public.14 It is easy to see why this offence would be a poor fit for any instance of private corpse desecration. The offence of ‘outraging public decency’ seems to fit better. However, the word public is key to the offence. In R v Hamilton15 it was established that, to make out the offence, two elements need to be proven. First that the act be of such a lewd character as to outrage public decency in the sense that it is liable to shock and disgust. Second is the requirement that the act take place in public, such that it was capable to being seen by two or more persons who were actually present (even if they did not in fact witness it). Had those who placed the bacon on Mrs Mohammed’s body then gone on to display the body in a public space, it is conceivable that they could have been held accountable for outraging public decency. This was the case in R v Gibson16, where the display of a sculpture of a human head adorning freeze-dried human foetus earrings was held to fall foul of the offence. The Law Commission have suggested that the requirement of two people actually being present should be removed 

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 12 See R v Rimmington [2006] 1 AC 459 (HL), especially ‘the requirement of common injury’ at 45. 13 Law Commission, ‘Public Nuisance and Outraging Public Decency’, (Consultation Paper No 193, 2010) para 1.12. A list of the kinds of acts resulting in prosecutions in recent years for causing a public nuisance can be found in Law Commission, ‘Simplification of the Criminal Law: Public Nuisance and Outraging Public Decency’, (Law Com No 358, 2015). 14 There is some debate regarding what the requirement of ‘publicness’ actually entails. In their recent report, the Law Commission suggested that the current legal position is that a nuisance is public if it either i) affects a class of the public, such as the inhabitants of a neighbourhood or ii) infringes rights belonging to the neighbourhood, such as those to use the public highway. See Law Commission, Simplifying the Criminal Law, ibid, para 2.11 15 [2007] EWCA Crim 2062 16 Gibson, Sylveire [1991] 1 All ER 439

from any codified version of the offence. Instead, they posited that the conduct should have to be in a place ‘which is accessible to or within view of the public’.17 This requirement, although potentially less onerous for the prosecution, would not assist in cases where there is no potential for the public to access the corpse. Next, we find the offence of ‘preventing a lawful and decent burial’. This offence, dealing with the disposal of human remains, also hinges on decency. However, there is less clarity regarding what ‘decency’ means in this context. 18 The offence appears to be satisfied each time something is done which delays disposal. Liability is not, therefore, contingent on any disrespect to the deceased person and would not apply when a body is awaiting release in a morgue. In some more recent cases, primarily those where there has been a homicide, there may be some kind of mistreatment of the corpse. The offence, therefore, seems to be increasingly used to punish corpse desecration. For example, in Attorney General Reference (No.90 of 2005) a husband who, after killing his wife, over the course of some days chopped up the body and froze it, was sentenced more severely for preventing burial than for her manslaughter. As Herring has noted, it was not the prevention of burial but the desecration of the body which motivated this balance in the penalties applied.19 Thus whilst the offence is sufficiently vague as to catch many cases of corpse desecration i.e. those where the acts cause or are part of acts which cause delay to disposal, this is incidental to the offence.

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 The 17 Law Commission, 2015, 2015, above n 14 para 4.11. 18 I Jones and M Quigley, ‘Preventing Lawful and Decent Burial: Resurrecting Dead Offences’ (2016) 36(2) Legal Studies 354. 19 Herring, above n 11, 220. Similar facts were found in the recent case of Stefano Bizzi. Bizzi stripped the flesh from the dismembered body and attempted to dissolve it in acid.19 In addition to murder Bizzi was convicted of obstructing the coroner. See ‘Stefano Bizzi guilty of PC Gordon Semple’s Murder’ (BBC News, 14th November 2016) Accessed 19th December 2016. Details of the coronial offence and its overlap with preventing burial can be found in Jones and Quigley, Ibid.

artificial extension of offences such as this is undesirable, as the label does not fit the wrong.20 Finally, the strange case of Emyr Owen and a potential offence created by it. In 1984, Owen pleaded guilty to three charges of ‘mutilating a corpse’. He admitted various sexually sadistic acts which caused physical damage to three corpses. His reasons for doing so remain unclear. The authority for using this offence remains opaque, it does not seem to have existed before this case nor have been invoked since. Owen was not initially charged with this offence, rather the original proceedings were brought for ‘criminal damage to a corpse’ and public nuisance.21 It can be assumed that the need to alter those charges was effected upon the realisation that there is no property in a corpse and no public aspect to Owen’s conduct, but at what late stage this took place is unclear. However, the Crown Court indictment sheet was altered in pen to replace charges of ‘affronting common decency’ with ‘mutilating a corpse’. It is understood that there was an unsuccessful motion to quash the indictment, after which Owen pleaded guilty.22 Had he been able to challenge the conviction, it would have surely been found that the offence was unknown to law.23 Should it exist, the ambit and elements of this offence are unknown; for current purposes it should be treated as a legal error. There is little doubt however that the acts perpetrated by Owen are of the type that ought to be captured by some kind of corpse desecration offence.

 20 G Williams, ‘Convictions and Fair Labelling’ (1983) 42 Cambridge Law Journal 85. 21 As detailed in the legal aid order for his representation and the schedule on the ‘Certificate to be Sent to the Crown Court for Committal to Trial’. 22 See S White, ‘An End to DIY Cremation?’ (1993) 33(2) Medicine, Science and the Law 151. 23 This argument has also been made by JR Spencer, ‘Criminal Liability for Desecration of a Corpse’ (2004) 6 Archbold News 

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This is a repository copy of A grave offence: corpse desecration and the criminal law. https://eprints.whiterose.ac.uk/110192/3/A%20Grave%20Offence%20Legal%20Studies%20Final.pdf.  click here for the whole article.