LEGAL IDEAS FORUM

CRITICAL ANALYSIS OF THE EXCEPTION IN THE CASE OF R V. KELLY AND LINDSEY

INTRODUCTION 

The general rule is that a corpse cannot be stolen but there has been an exception to this rule which is stated in the case of R v Kelly and Lindsay, the case is about the theft of body parts used as anatomical specimens.
The first defendant had access to the Royal College of Surgeons to take drawings of anatomical specimens. And asked the second defendant i.e Lindsey to remove a number of human body parts from the college. The body parts were then taken to Kelly’s home where he made casts from them. The body parts were ultimately buried in a field near Kelly’s home.
Kelly 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. See the case of 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, Kelly contended that there was no property in human body parts and therefore they could not be stolen.  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 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.
Property has been defined by the provision of S.4 (1) of the Theft Act 1968 as:
…money and all other property, real or personal, including things in action and other intangible property.
Bringing  this offence home under the Nigeria legal system we have to start by defining what stealing/theft is all about.
Theft/stealing is literally understood as taking someone else’s property without such person’s permission. According to the provision of S.383 (1) of the Criminal Code:
A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person anything capable of being stolen, is said to steal that thing.
Also,  by the provision of S.1(1) of the Theft Act of 1968: A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
From the above, it can be seen that the mens rea for the offence of theft is dishonesty, coupled with the intention to permanently deprive the owner of the property of the use of such property.
Before a person can be convicted of the offence of stealing these ingredients must be present.
Stealing is defined as taking away something or some other person’s personal property dishonestly or wrongfully especially secretly. In other words, stealing in ordinary  parlance is defined as the wrongful taking away of the goods of another. In law, the offence of stealing has a more restricted meaning, the implication of which is that the ingredients of the offence as stipulated by law must be established beyond reasonable doubt before a conviction can  be secured. It is these ingredients that make stealing illegal and unlawful. What amounts to the ingredients of the offence of stealing is inferable from the statutory codification of the offence. Thus, Section 390 of the Criminal Code creates the offence of stealing  by providing, that:

“Any person who steals anything capable of being stolen is guilty of a felony
….This definition was elaborated upon by Section 383 (1) of the same Code
thus:
“A person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of any other person, anything capable of being stolen, is said to steal that thing”
 In Onwudiwe v. Federal Republic of Nigeria,
 the Supreme Court opined that in order to establish a charge of stealing against an accused person, the prosecution must prove the following ingredients of the offence: 
(a) that the thing stolen is capable of being stolen; (b) that the accused has the intention of permanently depriving the owner of the thing stolen;
(c)  that the accused was dishonest; and,
(d) that the accused has unlawfully appropriated the thing stolen to his own use. By the same token, in Michael Alake & Anor. v. The State, Niki Tobi JCA (of blessed memory) said of the ingredients of stealing thus:
For the offence of stealing to be proved, the thing alleged to have  been stolen must be capable of being stolen. To constitute stealing, the taking must be fraudulent and with the intention to deprive the  person his permanent ownership of the thing. In a charge of stealing, proof that the goods stolen belong to some person is an essential ingredient of the offence and it is the duty of the  prosecution to adduce that evidence”
From the foregoing, it is crystal clear that before an accused can be said to have committed the offence of stealing, certain ingredients must be established. The first is that the property in question must be capable of being stolen. A thing capable of being stolen must have ownership or possession, value, and it must be a movable property. The movable property capable of being stolen must be in existence. A person cannot steal what is not in existence. According to Niki Tobi JCA, in Onagoruwa v. The State(supra) 
This is also the reason behind section 242 of the Criminal Code which talks about Misconduct with regard to corpses this particular section tries to protect a dead body. Looking at what is happening in the society now it is important to implore this section so as to protect organs of a dead person as well as to prevent assaulting a corpse.
Section 242 provides that:
Any person who-
(1) without lawful justification or excuse, the proof of which lies on him,
(a) neglects to perform any duty imposed upon him by law, or undertaken by him, whether for reward or otherwise, touching the burial or other disposition of a human body or human remains; or
(b) improperly or indecently interferes with, or offers any indignity to any dead human body or human remains, whether buried or not,
(2) eats or receives for the purpose of eating any part of a dead human body, is guilty of a misdemeanor and is liable to imprisonment for two years
Note that the offence of stealing a corpse as we have seen in the case of R v. Kelly and Lindsey and that of Misconduct with regards to corpses under section 242 are not the same.
About the author 
Uwandu Ikedi I. Is a law student of the Law Faculty ESUT. He is a seasoned writer and researcher and has served as special adviser to the Human  rights writers Association  of Nigeria   
             08133212382
 [email protected]

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