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 ( 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