On coffins and the law of theft

It is worth thinking about the impact that particular objects have had on the development of the law. An excellent example of this is the strange case of coffins and the law of theft, where there are two significant Scottish cases, both of which raise the question of when ownership in property ends, or of what the possessor might do with an object in his possession.

The first is the case of Dewar from 1944 (1945 JC 5). In this case the manager of a crematorium in Aberdeen was prosecuted for the theft of 1044 coffin lids and six coffins. His practice was to remove the lids from coffins before bodies were burnt. The lids were then put to a variety of different uses. Some were passed to funeral parlours, and were re-used; others were passed to the National Fire Service where fire crews made them into a variety of objects including desks and wireless cabinets; others had been turned into objects such as rabbit hutches; and others still were given to his employees for use as firewood. The trial must have been an extraordinary event as, according to the press report here many of the lids and others objects seized by the police were placed in the courtroom. Feelings ran high in Aberdeen, and as a result the trial was moved to Edinburgh. (Interestingly it appears that the trial was before a jury of seven, rather than the usual 15 - perhaps because of the war).

Dewar's defence was essentially that he was only following the common practice in crematoria - which was to remove lids before burning. He also argued that it was normal to recycle bits of coffins, and that this could in fact save money for poor people. There was no evidence that he had made any money out of the practice. And when we further consider that this took place towards the end of the second world war, when wood was in short supply, it might also be regarded as a way of making scarce resources go further. Legally, he argued that there was no crime here: the coffins had been effectively abandoned by their owners, as they were passed to him (and some it appears were never really owned, but merely 'rented').

Unfortunately for Dewar these arguments got short shrift from the court. He was found guilty and sentenced to three year's penal servitude. He appealed against the conviction, and it is the judgment of the Appeal Court that settled the law in this area. The Appeal Court held unanimously that the coffins (and their lids) had been sent to him under contract for the purpose of destruction together with the bodies, and so that to depart from this purpose was a misappropriation of property which might amount to theft. They further held that if Dewar held an honest belief on reasonable grounds that the practice was followed in other places then the jury might have acquitted, but that the evidence was unclear as to whether this really was the practice in other crematoria.

The second case is that of Herron v. Diack and Newlands from 1972 (1973 SLT Sh. Ct. 27). Though mainly regarded as notable now for Sheriff Irvine Smith's judgment, the case nonetheless raises an important legal issues. The facts were that Mr Harry B Groom, an American author, had an expressed a wish to be buried in Scottish waters. On his death, the funeral parlour in New York contacted the Glasgow undertaker, where Diack and Newlands worked, to arrange for the burial at sea. The body was duly delivered in a large and expensive steel coffin, at which point Diack directed that the body be removed from this casket and placed in an inexpensive chipboard coffin with iron bars tied to its legs. Three days later the funeral party set out into the Firth of Clyde where a series of ever more unfortunate events took place.

On first being committed to the sea, the coffin did not sink immediately, but came back to the surface with, in the words of a crew member, 'white plastic stuff hanging out'. Some moments later, as the coffin sank, the lid reappeared. This was recovered from the water and the nameplate removed. The nameplate was thrown back in while, in an unconscious echo of Dewar, the lid was given to the crew with the suggestion that it might make a good coffee table. The following day both body and coffin were netted by a fishing boat trawling for prawns - and the unscrupulous captain decided that the best thing to do was to throw both back. Then, five days later, a second fishing boat snared the body again, and this time decided that it would be best to return the body to shore - where the police duly became involved, and the body returned to the original funeral parlour. After a further abortive attempt to use a cheaper coffin - abandoned when the press got hold of the story - the body was eventually returned to the orginal steel coffin and finally received a proper burial at sea.

Diack and Newlands were charged with the theft of the original steel coffin. In their defence it was contended that Diack believed that the original coffin was not appropriate to burial at sea, that he believed he had a right to make such arrangements as they sought fit, and that there was accordingly no evidence of a fraudulent intention. He also maintained that as manager everything was done on his instruction and that Newlands was therefore not guilty of any crime. As in the earlier case of Dewar these arguments were rejected - with the exception of the last, as the case against Newlands was found not proven.

So the place of the coffin in the development of the law of theft is clear. The legal issues are perhaps less so. It appears that in both cases the court was open to the possibility that the accused might be acquitted if it could be shown that this was in fact the practice of the profession - which raises intriguing possibilities. This might have been likely in Dewar, where there is now historical evidence building up to suggest that this practice was not unusual towards the end of the second world war. More conceptually it does perhaps raise questions of who owns the coffin - certainly not the corpse - when it is possessed by funeral parlour. Both courts seem to have relied heavily on contract and not following directions, though this might make the facts look more like fraud than theft. But in the end it is hard to avoid the feeling that that the outcomes were shaped by social beliefs about the wrongness of desecrating corpses, and in a country with a rich history of grave robbing (think Burke and Hare), this was an argument that would always win out.

[Papers from Dewar are now held by the University of Aberdeen Library (MS 3217), and might well be worth a visit]