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.
Issues
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.
Decision/Outcome
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.
Updated 20 March 2026
This article accurately states the decision in R v Kelly and Lindsay [1998] 3 All ER 741 and the legal principles it established. The case remains good law and is still the leading English authority on the application of the ‘work and skill’ exception to the no-property-in-a-corpse rule.
Students should be aware of subsequent developments in this area. The Human Tissue Act 2004, enacted following the Alder Hey and Bristol Royal Infirmary scandals, now governs the lawful storage and use of human tissue in England, Wales, and Northern Ireland, and creates a regulatory framework administered by the Human Tissue Authority. While the Act does not directly overrule Kelly, it significantly affects the broader legal context in which body parts may lawfully be held and used. The 2004 Act creates criminal offences relating to the unlawful removal, storage, and use of human tissue, which now sit alongside (rather than replacing) the common law principles affirmed in Kelly.
The question of property in the body has also been considered in subsequent civil cases, including Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37, in which the Court of Appeal held that men who had stored sperm prior to chemotherapy had sufficient property rights in it to bring a claim in bailment. This decision, while not overruling Kelly, indicates that the courts may be willing to develop property rights in human biological material beyond the ‘work and skill’ exception, at least in certain contexts. Students reading this article should consult Yearworth alongside Kelly for a complete picture of the current law.
