Kelly & Anor, R v

Factual and Procedural Background

On 3rd April 1998, at Southwark Crown Court, two appellants, referred to as Appellant Kelly and Appellant Lindsay, were convicted of theft relating to human body parts taken from the Royal College of Surgeons. Kelly, an artist with privileged access to anatomical specimens for drawing purposes, enlisted Lindsay, a junior technician at the college, to remove approximately 35 to 40 human body parts including heads, limbs, and torsos. These parts had been preserved and prepared by skilled medical staff for educational and scientific purposes. The body parts were taken without permission and many were buried or stored in various locations by Kelly. The central issue for the jury was whether the appellants acted dishonestly or under an honest belief of right to the body parts. Both appellants appealed their convictions on legal grounds certified by the trial judge, particularly focusing on whether preserved human body parts could constitute property capable of being stolen, and whether the Royal College of Surgeons had lawful possession of those parts at the time of removal.

Legal Issues Presented

1. Whether preserved human body parts can be considered property under the Theft Act 1968, thereby capable of being stolen, despite the traditional common law rule that there is no property in a corpse.
2. Whether the Royal College of Surgeons had lawful possession or control of the body parts at the time they were taken.
3. Whether the trial judge’s direction to the jury that the college was in lawful possession of the specimens was a prejudicial misdirection affecting the safety of the convictions.
4. Whether the prosecution for theft in these circumstances amounted to retrospective legislation contrary to the European Convention on Human Rights.

Arguments of the Parties

Appellants' Arguments

• The common law rule that there is no property in a corpse applies to body parts, which therefore cannot be stolen.
• There is no exception to this rule for preserved body parts, and the case law relied upon (R v Doodeward and Spence) is distinguishable or not applicable.
• The body parts were not lawfully possessed by the Royal College of Surgeons because they had been retained beyond the statutory period set out in the Anatomy Act 1832, rendering possession unlawful.
• The trial judge’s direction that the college was in lawful possession was prejudicial as it undermined the appellants’ defence based on honest belief.
• The prosecution for theft was effectively retrospective legislation violating the appellants’ rights under the European Convention on Human Rights.
• The jury’s verdict was unsafe due to these legal errors and misdirections.

Prosecution's Arguments

• A corpse or parts thereof constitute property under section 4 of the Theft Act 1968, regardless of the holder’s status or intention.
• The common law concerning rights over corpses relates to possession and control, which is addressed separately under section 5 of the Theft Act; it does not exclude corpses from the definition of property.
• The Theft Act does not exclude corpses or body parts from being property capable of theft.
• The Royal College of Surgeons had factual possession and control sufficient to constitute possession under the Theft Act, irrespective of statutory time limits.
• The trial judge’s directions were appropriate and did not prejudice the defence.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v Doodeward and Spence (1908) 6 CLR 406	Establishes an exception to the common law rule that corpses are not property: preserved or skillfully treated human body parts may acquire attributes making them property.	The court accepted this exception applied, holding preserved body parts were capable of being property and thus theft.
Dobson v North Tyneside Health Authority [1996] 4 All ER 474	Considered the status of human tissue as property; did not dissent from the Doodeward exception.	The court regarded the Doodeward exception as applicable and not contradicted by Dobson.
R v Turner (No 2) [1971] 2 All ER 441	Clarified that possession or control under the Theft Act does not require lawful possession; factual possession suffices.	The court applied this principle to hold the college’s possession was sufficient under the Theft Act.
R v Sharp 1857 Dears & Bell 160	Common law rule that there is no property in a corpse.	The court acknowledged this principle but held it subject to exceptions where skill or preservation transforms the corpse or parts into property.
R v Ollerenshaw (23rd April 1998)	Guidance on sentencing for short custodial sentences and consideration of prison overcrowding.	Applied to reduce sentences of the appellants considering their roles and circumstances.

Court's Reasoning and Analysis

The court examined the traditional common law rule that there is no property in a corpse, recognizing its long-standing status. However, it accepted the exception established in R v Doodeward and Spence, which holds that human body parts that have undergone skilled preservation or dissection for scientific or educational purposes acquire attributes that differentiate them from mere corpses, thereby becoming property capable of being stolen under the Theft Act 1968.

The court further analysed the issue of possession under section 5(1) of the Theft Act, concluding that factual possession and control by the Royal College of Surgeons were sufficient, irrespective of statutory time limits or the lawfulness of possession under the Anatomy Act 1832. The court rejected the appellants' argument that possession must be lawful to constitute property belonging to another.

Regarding the trial judge's direction that the college was in lawful possession, the court found that the lawfulness of possession was not a necessary issue for the jury and that the direction did not prejudice the appellants' defence of honest belief. The court also dismissed the claim that the prosecution constituted retrospective legislation violating the European Convention on Human Rights, noting that the convention was not part of English law at the time and that elucidation of common law does not amount to retrospective legislation.

In sentencing, the court acknowledged the unique nature of the offence and the good character of the appellants, particularly Lindsay’s youth and susceptibility to influence. The court found the offence serious enough to cross the custody threshold but reduced the sentences to reflect the circumstances and mitigating factors.

Holding and Implications

The court DISMISSED the appeals against conviction, affirming that preserved human body parts can constitute property under the Theft Act 1968 and that the Royal College of Surgeons had possession sufficient to support theft charges. The court also found no misdirection prejudicial to the appellants in the trial judge's instructions.

The court ALLOWED the appeals against sentence, substituting shorter custodial terms: a 3-month immediate sentence for Appellant Kelly and a 2-month sentence suspended for 2 years for Appellant Lindsay, reflecting their differing roles and circumstances.

The decision confirms the legal principle that skillfully preserved human body parts may be treated as property for theft offences, marking an important clarification of the Theft Act’s application to such materials. No new precedent was established beyond affirming the existing exception from R v Doodeward and Spence. The ruling also clarifies that factual possession suffices under section 5(1) of the Theft Act, regardless of statutory possession limitations.