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R v Kelly and Lindsay [1998] 3 All E.R. 741

Theft of body parts used as anatomical specimens

Facts

The first defendant (K) had access to the Royal College of Surgeons to take drawings of anatomical specimens. The second defendant (L) worked at the college. K asked L to remove a number of human body parts from the college. The body parts were then taken to K’s home where K made casts from them. The body parts were ultimately buried in a field near K’s home.

Issue

K was found guilty of theft. The trial judge found an exception to the principle established in common law that a corpse, or parts of a corpse, were not capable of being property (R v Sharp (1857) Dears & Bell 160). The trial judge held that there was property in a corpse or parts of a corpse when they have been preserved for medical or scientific examination or for the benefit of medical science. On appeal, K contended that there was no property in human body parts and therefore they could not be stolen.

Held

The Court of Appeal dismissed the appeal. The exception expressed to the longstanding common law rule regarding property in a corpse as relied upon by the trial judge and first expressed in the Australian case of Doodeward v Spence 6 C.L.R. 406 was valid. When a person applies lawful skill to a human body or part thereof which is in his lawful possession it acquires usefulness which distinguishes it from an interred corpse and that person therefore acquires a right to retain possession of it. Parts of a corpse are therefore capable of being property within the meaning of section 4 of the Theft Act 1968.


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