Oblique intent

Why the name? Well criminal law afficionados will recognise the phrase 'oblique intent' as referring to a problem of mens rea:can a person who intends to do x (such as setting fire to a building to scare the occupants) also be said to have an intention to kill if one of the occupants dies? This is a problem that has consumed an inordinate amount of time in the appeal courts and in the legal journals, and can be taken to represent a certain kind of approach to legal theory. My approach is intended to be more oblique to this mainstream approach, and thus to raise different kinds of questions and issues. Hence the name.

Friday, 7 September 2012

On preventing the lawful burial of a body

Criminal offences are like buses. Sometimes they are not used at all, and then several come along at once. And this has been the case this summer with use of the highly unusual charge of 'preventing the lawful and decent burial of a body' in two very high profile cases.

Hans Kristian Rausing
The first is the case of Hans Kristian Rausing, heir to the Tetrapak fortune, who pleaded guilty to the offence and admitted to having kept the body of his dead wife for two months in his Chelsea mansion. Then later in the summer, Jackie Powell, the mental health advocate of the so-called 'Moors murderer' Ian Brady was arrested on suspicion of having committed the same offence. However, the facts in the two cases are quite different, and it is worth looking at these because it suggests that the justification for the offence is confused at best.

In the first case, Rausing admitted to drug use and mental health problems stretching back over a period of some years. On his account, his failure to report the death of his wife (who suffered from similar problems) was due to an unwillingness to face up to the reality that his wife had died. The use of the offence seems to have been a way of ensuring thta he undertook some sort of treatment - he was given a suspended prison sentence and ordered to undertake a drug rehabilitation programme. This may already be troubling, given the existence of civil procedures which might have accomplished the same end, but the use of the the charge against Jackie Powell, is even more worrying.

Police searching Saddleworth Moor 
The facts here are that Brady and his accomplice Myra Hindley were convicted of the murder of five young children in the 1960s. However, they never revealed where the body of one of the victims was buried, and in spiite of regular police searches of the moorland where it is believed to be hidden, it has never been discovered. In this case, then, Brady allegedly revealed the location of the body to Powell, soemthing that was disclosed by Powell during the filing of a TV documentary, though she is claiming privilege and refuses to disclose the location to the police. While this is arguably preventing the lawful burial of the body, what appears to be happening here then is that the threat of the charge is being used to try and force Powell to disclose the location.

Grave robbers at work
The offence itself is an unusual one and, as is pointed out here, is rarely used. It is a common law offence which was apparently revived in the 1970s after years of desuetude, that seems to have been used where those under a duty to provide a burial, such as gaolers or workhouse masters evaded that duty. Its recent usage appears to be in cases where individuals have sought to conceal the body of someone who has died as a result of some sort of accident or misadventure. It is not immediately obvious why this should be a criminal offence. One justification might be the risk that a decomposing corpse might pose to public health - and this seems to underpin some statutory offences in this area, such as those relating to cremation, or simply the common law offence of leaving a corpse unburied. It seems that something hangs on the concealment - a failure to bring the death to the proper notice of the authorities, but absent concerns over health, this might be dealt with as an administrative offence under s.36 of the Births and Deaths Registration Act 1953. In certain circumstances this could also be charged as obstruction of coroners, where the concealment is to prevent the discovery of a body or to prevent a coroner from carrying out an inquest. This can be justified on the grounds that this would prevent other alleged crimes from coming to light, but this does not appear to be the situation in either of the cases here.

However, as pointed out here, the inclusion in the crime definition of 'lawful and decent' burial, also points to more fundamental beliefs about bodies and their disposal - and, historically at least, the need to give a body a proper Christian burial and to prevent grave robbers passing bodies to hospitals. What is important then is not the fact of burial, but that it should be both lawful and decent, or perhaps more broadly that the corpse should be treated with proper respect. If this is accepted, then it appears that there might be room for an offence of this kind which can be justified on grounds distinct from public health, breach of an adminstrative duty or the concealment of another crime. However, it is not clear either that this should be a serious offence, nor that its use would be appropriate in either of the two cases discussed above.


  1. Great start and very interesting reading. There was also a recent case in Newport where a 37 year old woman was given an "inderteminate" sentence under the mental health act. The court documents do not show her mental state was ever up for discussion and the judges summary was about as damning as it could be.

    In light of recent allegations surrounding the "very special philanthropist" Hans K Rausing it could be argued that "preventing a coroner from conducting an inquest" becomes relevant.

    Obviously that is met with a loud cry of "paranoid conspiracy theorist" and it's a brave man who continues this line...then again they do make it easy as even the barest of details would gift the greenest of briefs an open goal. I'm also sure the CPS feel they are "owed one" from the persistently offensive stealth crooks that are the Rausings.

    In the case of Eva Rausing we have Hans, driving about town, scoring and obviously of sound mind enough that in fifty seven days he had not drawn any suspicion. He was of sound enough mind to be reading a book during his hearing and also now appears to be Clearminded enough to order food, go shopping and converse with jornalists via text and phone. He is sound enough to know a conspiracy when he sees one and YET his plea relied solely upon him having "some kind of breakdown" from which, and his raging addiction, he was given two years to recover at a top London hotel...sorry bail hostel/rehab.

    In common law (used when it suits the usually corporate/criminal court) "Actus non facit reum nisi mens sit rea"

    "the act does not make a person guilty unless the mind is also guilty" is this what Hans called "bit of a breakdown" ?

    I am certain the charge against Jackie Powell was little more than a knee jerk and am convinced must have been brought about by an over zealous advocate who read about the Rausing case in his local paper.

    PS: I am not sure the typeface does the body text justice. In fact I know it doesn't. That aside thanks for a very interesting read and I look forward to more.

    Frank Hargreaves

  2. Thanks for the link to my piece on this. I make the point that this is a "peculiarly ill-defined offence, having no great background of judicial consideration", one which there was even judicial doubt about its existence. It has in a sense been disinterred from obscure historical cases as a handy way of dealing with modern problems eg drug-buddies who hide their friends' bodies after overdoses, or Rausing's case or in Jackie Powell's case where apparently no other charge was possible but something was needed in order to get her to cough up Brady's letter. My piece http://alrich.wordpress.com/2012/08/17/ian-brady-strange-case-of-preventing-lawful-burial/ looks at the main historic cases for anyone interested.
    PS: I like your site – but agree with previous correspondent. The typeface is quite difficult to read! Alrich