Supplementary memorandum by the General
Medical Council
Thank you for your e-mail in which you seek
further clarification of the question asked by Lord Wade about
the legal status and ownership of bodies.
As this is a question of law, it is not appropriate
for the GMC to respond formally on this point. You asked whether,
if this were the case, we could direct you to a source for such
information. The questions relating to ownership and rights over
a body are dealt with both in common and statute law. The Human
Tissue Act, and other legislation, deals with what may be done
by a person in lawful possession of a body. I am sure that the
Human Tissue Authority will be able to explain that issue more
fully.
The common law addresses the question whether
there is property in a body. The Sub-Committee may find the judgment
of the Court of Appeal in the case of Anthony-Noel Kelly, Niel
Lindsay, R v. [1998] EWCA Crim 1578 (14 May 1998) helpful
as a starting point. The case considers the "no property"
in a corpse rule and the circumstances in which this rule may
not apply. In the course of their judgment the Appeal Court said:
We return to the first question, that is to say
whether or not a corpse or part of a corpse is property. We accept
that, however questionable the historical origins of the principle,
it has now been the common law for 150 years at least that neither
a corpse, nor parts of a corpse, are in themselves and without
more capable of being property protected by rights (see, for example,
Earl J, delivering the judgment of a powerful Court of Crown Cases
Reserved in the R v Sharp 1857 Dears & Bell 160, at
page 163, where he said:
"Our law recognises no property
in a corpse, and the protection of the grave at common law as
contradistinguished from ecclesiastic protection to consecrated
ground depends on this form of indictment."
He was there referring to an indictment which
charged not theft of a corpse but removal of a corpse from a grave.
If that principle is now to be changed, in our
view, it must be by Parliament, because it has been express or
implicit in all the subsequent authorities and writings to which
we have been referred that a corpse or part of it cannot be stolen.
We recommend, however, that the Committee obtains
formal legal advice on this issue, as the GMC is not able to provide
any analysis of this case or of any subsequent judgments on the
same issue.
4 April 2008
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