Some issues raised in the recent judgment
On 13 October, the High Court handed down the judgment Oldham Metropolitan Borough Council & Ors v Robin Makin & Ors  EWHC Case No: HC-2017-002064 (Ch) concerning the arrangements for the disposal of the body of Ian Stewart-Brady, formerly Ian Brady (the “deceased”), one of the infamous Moors murderers. We posted some initial comments based upon the Court’s judgment and the Summary which it produced “to assist in understanding the Court’s decision”.
In view of the necessary confidentiality of the information concerning the arrangements for the disposal of Brady’s body, parts of the published judgment had been redacted. However after the cremation and disposal of the ashes at sea, on 3 November 2017 the High Court released the unredacted version of the judgment, Oldham Metropolitan Borough Council & Ors v Robin Makin & Ors  EWHC 2543 (Ch), paragraph 88 of which includes the Court’s directions as to the disposal of Brady’s body. The judgment raises a number of issues relating to the law of burial which are of more general application, and these are considered below.
The updated version of our post Scattering Ian Brady’s ashes summarized the initial coroner’s hearing on 16 May 2017 following the death of Ian Brady (a.k.a. Ian Stewart-Brady). Whilst media headlines at the time focussed on the disposal of Brady’s ashes, Senior Coroner Christopher Sumner requested assurances on three issues, further to a request to release his body:
- the person who asked to take over responsibility for that funeral has a funeral director willing to deal with the funeral;
- he has a crematorium willing and able to cremate Mr Stewart-Brady’s body; and
- when Mr Stewart-Brady is cremated his ashes will not be scattered on Saddleworth Moor.
The sequence of events between the coroner’s hearing and the High Court judgment is summarized in paragraphs 7 to 10 of the judgment and the facts of the case in paragraphs 13 to 39.
High Court hearing
Sir Geoffrey Vos, Chancellor of the High Court, prefaced his ruling with the comments [sections originally redacted in square parentheses]:
“. It will make this judgment more intelligible if I set out immediately the provisions of [Section 46 Public Health (Control of Disease) Act 1984 and section 116 Senior Courts Act 1981]. Section 46(1) provides that:
“[i]t shall be the duty of a local authority to cause to be buried or cremated the body of any person who has died or been found dead in their area, in any case where it appears to the authority that no suitable arrangements for the disposal of the body have been or are being made otherwise than by the authority”. In this case, the relevant local authority is Sefton [Sefton Metropolitan Borough Council], which I re-joined as a party to these proceedings on the second day of the hearing in circumstances I shall shortly describe.
“. Section 116 provides that:-
“(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit.”
“. As things turned out at the hearing, the claimants sought an order that [Ms Carolyn Wilkins OBE (“Ms Wilkins”), chief executive of Oldham and/or Ms Sandra Stewart (“Ms Stewart”), executive director for governance, resources and pensions of Tameside], be appointed as individual administrators for the limited purpose mentioned in place of Oldham and/or Tameside themselves. This change arose as a result of a contention made on behalf of the first defendant that letters of administration cannot be granted to bodies corporate like Oldham and Tameside unless they are trust corporations (which they are not). In the circumstances, I will not need to deal with this technical argument, since it is common ground that I can, at least in theory, make a grant of letters of administration to [Ms Wilkins and/or Ms Stewart].
The headline points from the judgment include:
- probate had not been sought; Brady’s solicitor did not intend to do so until after the disposal of the body, because the will would thereby become a public document. The court has not been shown a copy of the deceased’s will .
- “the executor’s duty is actually, in modern times at least, to provide a ‘decent disposal, rather than any kind of funeral”, .
- “…the public interest demanded that these proceedings were heard in public. We operate these courts openly. We do not operate a system of secret justice in which any litigant can demand for his own reasons that his case is determined away from the sterilising glare of the public eye”, .
- Only a small part of the hearing was in private and only small sections of the judgment have been redacted [Summary].
- In this case, S116 Senior Courts Act 1981 trumped the quasi-hierarchy of rights for the disposal of a body, [72 to 76];
- “The deceased’s wishes are relevant, but they do not outweigh the need to avoid justified public indignation and actual unrest”, .
Concluding his judgment, Sir Geoffrey Vos said [emphasis added]:
“. In these circumstances and for the reasons I have given, I do not think that Mr Makin can be entrusted with the ashes for disposal…
“. I have, therefore, determined that in the extremely unusual circumstances of this case, I should direct precisely how the deceased’s body is to be disposed of. I shall even need to decide whether music can be played during the cremation.
“. For the reasons I have already given, I am entirely satisfied that it would be dangerous and inappropriate to allow Mr Makin to dispose of the deceased’s ashes. It is unfortunate that Sefton is no longer able to arrange their disposal, but instead [Ms Stewart] has said that she will do so, and I am satisfied that that is the best proposal available.
“. As to the playing of the fifth movement of the Symphony during the cremation, I need only quote the description of that movement from Wikipedia for it to be seen how inappropriate it would be…
“. I have no difficulty in understanding how legitimate offence would be caused to the families of the deceased’s victims once it became known that this movement had been played at his cremation. I decline to permit it. It was not suggested by Mr Makin that the deceased had requested any other music to be played or any other ceremony to be performed, and in those circumstances, I propose to direct that there be no music and no ceremony.
“. I will therefore direct under Section 116 that [Ms Stewart] shall be appointed as administrator of the estate of the deceased for the limited purpose of disposing of the body of the deceased in the following manner. I also direct under the inherent jurisdiction of the court and under Section 116 that [Ms Stewart] as administrator shall be responsible for ensuring that the body of the deceased is disposed of in the following manner: [
i) The deceased’s body shall be cremated by Sefton at Southport municipal crematorium no later than Friday 27th October 2017 (the “cremation”).
ii) The cremation shall take place in a spare cremator out of normal crematorium hours.
iii) No music shall be played during the cremation and there shall be no ceremony before during or after the cremation.
iv) There shall be no flowers present and no photography undertaken before during or after the cremation.
v) The only persons permitted to attend the cremation shall be Mr Makin, Ms Stewart, and the Senior Registrar of Bereavement Services of Tameside, in addition to crematorium staff and police.
vi) The ashes of the deceased (the “ashes”) will be entrusted to Ms Stewart for disposal at sea as soon as reasonably possible after the cremation, and in any event within 7 days thereof.
vii) The only persons present at the disposal of the ashes are to be Ms Stewart, the Senior Registrar of Bereavement Services of Tameside, in addition to necessary staff and police.]
Whilst not a “landmark” ruling associated with the development of the law in this area, the judgment of the Court of Appeal was nevertheless unusual in its use of existing provisions within the Senior Courts Act 1981 to direct precisely how the deceased’s body was to be disposed of, including whether music could be played during the cremation. In so doing, Sir Geoffrey Vos placed the court at the head of the quasi-hierarchy of rights relating to the treatment of a body prior to its final disposal, discussed in our earlier post. Incidentally, by specifying only one piece of music for his cremation, Brady was (posthumously) hoisted with his own petard, since the judge ruled that no alternative was then possible.
Again, the distinction in the executor’s duty between providing a “decent disposal” rather than “any kind of funeral” is not new, but it is nevertheless a welcome restatement of this requirement. A similar approach is evident in the 1983 Code of Canon Law, which under Canon 1184 §1 certain categories of person must be deprived of ecclesiastical funerals, unless they gave some signs of repentance before death. Furthermore, under Canon 1185, such persons are also denied a funeral Mass.
On the technical issue of burial at sea, in England this is regulated by the Marine Management Organization (MMO) whose web site identifies three locations at which it is permitted: off The Needles, Isle of Wight; between Hastings and Newhaven; off Tynemouth, North Tyneside. However, the site indicates that it is possible to propose a new site when an application is made; in these cases is necessary to supply coordinates and evidence to demonstrate that the site is suitable for burials at sea. Presumably this was the case with Brady’s remains.
The MMO further states that a licence or permission is not required to scatter ashes at sea following a cremation. Brady’s remains were not scattered broadcast but placed in a weighted biodegradable urn, said to be of Himalayan salt which was designed to dissolve in water within a short time. These is no indication of whether a licence was required for this procedure.
It has been reported that Myra Hindley, the other Moors Murderer who was said in her later years to be a devout Roman Catholic, had requested Albinoni’s Adagio for Strings to be played at her funeral and for a Mass for the repose of her soul to be offered. However, no details were released other than the service at the crematorium was service was conducted by a Catholic priest Father Michael Teader; her ashes were said to be handed to a representative from the prison service for disposal at a private location in accordance with her family’s wishes.
In What the debate about Ian Brady’s body tells us about rights after death, Imogen Jones, Associate Professor in Law, University of Leeds, gives a broader consideration of the issues raised in the judgment. The issue of respecting the wishes of the deceased is also of relevance in relation to the current issue of organ donation, and will be covered in a future post.