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Ian Brady: Strange case of ‘Preventing lawful burial’

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There is something distinctly odd about the arrest of Moors murderer Ian Brady’s mental health advocate Jackie Powell on suspicion of “preventing the burial of a body without lawful excuse”.

No charges have been levelled yet and she has been bailed for three months. But one must wonder whether arrest and bail are appropriate at all.

Let’s start with the offence. It is a common law offence, hence not found in statute, and in the leading modern case (1973) there was a question as to whether it existed at all. In the event the Court of Appeal decided there was, indeed, an offence of “preventing the lawful and decent burial of a body without lawful excuse”. A few other cases have followed with sentences of between a year and three years.

The police and press seem to have missed out the “lawful and decent” bit – but they are crucial.

The 1973 case, R v Hunter, Atkinson and MacKinder ([1973] 3 W.L.R. 374) arose out of the death of a 17-year-old girl, Joyce King, possibly during horseplay or as a result of rape. Her body was hidden under paving stones to be found in a decomposed state by some schoolboys four months later.

It was argued that the accused had intended, not to prevent burial, but to prevent discovery of the body; and anyway there was “no such crime as conspiracy to prevent burial or conspiracy to conceal a body”. They should have been charged with disposing of a corpse with intent to prevent a coroner’s inquest.

For the Crown it was argued: “The result of deliberate concealment of the body must have been to prevent decent burial and this conspiracy is properly charged.”

Cairns LJ in his judgment concluded: “Conspiracy to prevent the burial of a corpse is not, so far as this court is aware, a charge that has ever been laid in modern times. It is, however, stated in Russell on Crime, 12th ed (1964), p.1420, that to prevent the burial of a dead body is an indictable misdemeanour and the authority cited is the unreported case of Rex v Young referred to in Rex v Lynn (1788) 2 Term Rep. 733. We see no reason to suppose that Russell is wrong in concluding that this is still an offence.”

That may be, but in effect Cairn is “creating” a new common law offence on the basis of an old textbook and centuries-old cases to serve the particular requirements of the case before him, where manslaughter charges were rejected but some retribution was required. As such it is a peculiarly ill-defined offence, having no great background of judicial consideration.

We think that in this connection burial means lawful and decent burial. Clearly a crime would not be committed if a body were cremated – Cairn LJ

Cairn expands on his “new” offence saying that it is not just the person responsible for the death who may be responsible for denying burial. “If it is a crime for the person responsible for burial to prevent it, there is no reason for regarding the act of a stranger in preventing burial as any less reprehensible.” This might be relied upon if Jackie Powell’s prosecution occurs, though to do so would seem to stretch a rather tenuous argument very thinly indeed.

Cairn continues: “We think that in this connection burial means lawful and decent burial. Clearly a crime would not be committed if a body were cremated, cremation now being authorised by the Cremation Act 1902. But if a decent burial is prevented without lawful excuse, we consider that this is an offence.”

This throws up the issue of what is a “decent” burial. Cairns implies that even if someone has been unlawfully killed or their body surreptitiously disposed of, if it is a “decent” disposal – including cremation – it may not be caught by the particular offence. Decent seems not to imply “proper religious burial” or “authorised civil burial”. It may even be that “decent” has a hygienic rather than any moral meaning in this context.

Older cases (including Rex v Lynn) involved bodysnatchers preventing burial or disinterring bodies for medical dissection. There have been few modern cases but the general sense of them is that they are linked to the people who are responsible for the deaths or have some direct responsibility towards the victims. 

The offence was used against child serial killer Robert Black in 1994. Black was convicted on three counts of preventing the lawful burial of victims whose bodies he left lying beside roads and in a river.

The Hunter case was one in which the family of the dead girl were left in doubt about whether she was alive or dead – not an issue as far as Jackie Powell is concerned. Other cases involved disposing of bodies or leaving them unburied to avoid police investigation into other matters – drug abusers with an overdose victim in one case (Parry (1986) 8 Cr. App. R. (S.) 470), a prostitute possibly inadvertently throttled by a police officer in another (Swindell (1981) 3 Cr. App. R. (S.) 255 ). As in Hunter the charge may be used for fear of other charges of unlawful killing failing.

These seem to be far from Powell’s circumstances. The body of Keith Bennett in all likelihood has been buried and has been long decomposed. Any offence will come down to a definition of “decent” that is not explicit in the cases. We do not know that the letter Powell has actually truly indicates where the body is. Brady is presumably more than capable of cruelly misleading police and the boy’s family.

It follows that the police, until they find any remains, do not know that a prima facie offence has occurred. Powell would seem to be on bail for something that may well not even have happened.

A charitable view might be that the police are giving Powell an excuse to breach confidentiality by handing over the letter. A less charitable view is that the police needed an offence to allow them to search her home and office – and any offence would do.

Note: In a little reported decision the Crown Prosecution Service has announced that it is not to pursue the charge against Jackie Powell. The CPS explained the decision thus:

“The only offence that might have been committed by Ms Powell was preventing a lawful and decent burial. It is possible to prosecute a person for preventing a lawful burial through a failure to act, but there must be sufficient evidence to prove that the suspect either prevented the burial or intended to do so when they chose not to act.
“After careful consideration, we have decided that Ms Powell should not be charged, as it cannot be established that she knew the contents of the letter referred to, that the letter in question existed or what information it might have contained. The only evidence of the letter’s existence was in comments given by Ms Powell to an interviewer and she stated only that she believed it may contain information about Keith Bennett.
“Even if it could be proved that this letter existed, there is no evidence to suggest that Ms Powell ever knew the nature of its contents and there is insufficient evidence to prove that she genuinely believed it contained the information in question. As such, it could not be established in court that Ms Powell either prevented Keith Bennett’s burial or intended to do so.”

Useful article on this issue: Preventing the lawful burial of a body, Michael Hirst, Crim. L.R. 96

About alrich

Journalist and blogger on legal and financial/economics issues

3 responses »

  1. There is no ‘confidentiality to be ‘breached ‘Jackie Powell is a private citizen, not a professional adviser, she has no duties under a client /advisor relationship with Brady.

  2. The very notion of a duty to bury is nonsensical.

    Statute law states that bodies can be dealt with by burial, cremation or any other means. In addition to cremation, we have long been aware of so-called “sea burials”. Now promession and resomation are on the horizon.

    The anachronistic notion of a duty to bury, also conceals the fact that bodies can be preserved, for artistic, religious or any other reason. That is proven by the number of bodies which have been preserved. Environmental Heath Officers get very twitchy, believing they have an obligation to intervene, when no funeral arrangements have been made. They then fail to understand the context of law and the fact that the Public Health (Control of Disease) Act 1984 refers to preservation.

    When anyone dies, their body is not legally regarded as property. It is simply a question of who can take immediate “control” over immediate events, (usually the executor of an adult’s Will or otherwise the nearest relative or civil partner) and/or take “lawful possession” of the body. However, it has been established that a body can be transformed into property, by the act of preservation and other techniques. This was reflected in a decision of the Plymouth coroner, who decided that a preserved body was the property of the Estate of a local artist who had died – off the top of my head the name was something like Robert Lenkovich.

    There are two real crimes:-
    (1) abandoning or neglecting a body, i.e. failing to do something with it, ranging from destruction to preservation;
    (2) with the exception of legitimate investigations into the cause of death, doing anything with a body, without the necessary permission of the person with the greatest right to decide its fate.

    John Bradfield
    Social worker and adviser on bereavement law.

    No legal references given above as I’ve typed this straight off the top of my head whilst in a public library and without access to my records …

  3. John Bradfield – again.

    Cairns LJ said, “burial means lawful and decent” not or decent.

    Thus this point is inconsistent:- “Cairns implies that even if someone has been unlawfully killed or their body surreptitiously disposed of, if it is a “decent” disposal – including cremation – it may not be caught by the particular offence”.

    It would inevitably be caught, because the burial or cremation would be unauthorised and therefore unlawful.

    Even if such a burial or cremation could be regarded in law as “decent”, one or the other would be unlawful if the proper documentation had not been issued in advance.

    For a bizarre example of an act which is “decent” and “proper” but also criminal (I did say bizarre) see the case of the builder found guilty of illegal exhumations, (R -v- Jacobson, 1880, 14 CCC 522-529).

    Regarding Jackie Powell, my guess is that she became a mental health advocate for Brady long after the distressing and outrageous murders. Assuming that all victims were buried, Jackie Powell could not be responsible for preventing their burials, if she was not involved before the burials took place. The CPS would need to prove that she was involved beforehand, in order to “prevent”. That means the CPS would need to prove that one or more victims had not been buried.

    It seems to me plainly obvious, that it should be an unambiguous crime to do anything with the body of a murder victim, unless authorised by a coroner. Raising additional questions about decency and being proper look not only pointlessly convoluted but unwitting attempts by the courts to offer escape routes for the most serious criminals. Escape routes must be blocked off and not left open or opened up.


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