Case in point | My kingdom for a hearse

Richard Easton considers who owns the body of a certain medieval king, and asks who does in fact own dead bodies

Richard III's corpse has suffered much. The royal cadaver was triumphantly displayed naked after Henry VII's victory at Bosworth Field in 1485, was then neglected by the friars of Leicester and eventually underwent the indignity of being buried beneath what would become a municipal car park. Now Richard III's freshly exhumed body is to be fought over by the Ministry of Justice, the University of Leicester and the king's distant relatives. Who should decide where the king is buried? Do rights to family life cover long-dead relations? And who owns dead bodies anyway?

In 2012, the Minister for Justice licensed the University of Leicester's exhumation of what was believed to be Richard III's skeleton. Disinterring a body without such a licence is a summary offence. The Richard III licence stipulates that his body be deposited at Leicester's Jewry Wall Museum or reinterred in the city's St Martin's Cathedral - where the University intends to bury Richard - or any other burial ground before September 2014.

Enter the Plantagenet Alliance, a group made up of relatives of Richard III, who claim that the Secretary of State violated article 8 by ignoring their wish for York Minister to be the king's final resting place.

The Plantagenet Alliance's quixotic claim has, however, a very recent Court of Appeal precedent. In R (Rudewicz) v The Secretary of State for Justice [2012] EWCA Civ 499, Elzbieta Rudewicz argued that licensing the re-burial of her distant relative, venerated Polish priest Father Jarezbowski, would, inter alia, violate her rights to family life. Father Jarezbowski's exhumation had been permitted to reunite him with his religious brethren at his order's new home. Ms Rudewicz insisted that Father Jarezbowski's exhumation ran contrary to her wishes as his nearest relative for the body to remain in its original grave.

The Court of Appeal when dismissing Ms Rudewicz's application struggled to see how article 8 was engaged by the burial of a distant relative. She was seven when Father Jazerbowski died in 1964 and had never actually met him.

Where might Rudewicz leave the Plantagenet Alliance? Ms Rudewicz was at least alive at the time of Father Jarzebowski's death whereas Richard III's relatives were born centuries after his demise. If the Court of Appeal doubted whether article 8 applied in Ms Rudewicz's case because she was not a close relation and had no personal relationship with the priest what will be made of a similar claim by seventeenth-generation nephews of a fifteenth-century king?

The Richard III case does, however, give us pause for thought. Can we make certain where our bones will lie? Unhappily, specifying a particular place for, or manner of, burial in a will does not bind one's executors: Williams v Williams (1882) 20 Ch. D. 659. Your wish to be buried in a chosen plot ought to be considered and, were that wish to be opposed during your lifetime, Article 8 might be engaged: X v Germany, Appl. No 8741/79 at 138. However, "there is no room further for any application of any human rights concepts to protect the right of the body to speak from death as it were": per Smith J in Ibuna v Arroyo [2012] EWHC 428 at [50]. Articles 8 and 9 might, though, protect surviving (close) relatives' decisions as to when and how to dispose of your body (Girard v France, Appl. No 22590/04; R (on the Application of Ghai) v Newcastle City Council [2009] EWHC 978).

But does anyone own your carcass? Can you bequeath yourself? No. There is, as a general rule, no property in a corpse just as the law mind-bendingly denies that you own yourself when living: R v Bentham [2005] UKHL 18. The no-property rule can be traced to Hayne's Case (1614) 12 Co Rep 113, although a clearer authority came with Handyside's Case (1749) 2 East PC 652 in which an action for trover against a doctor's retention of conjoined twins' corpses failed for want of property in the tiny cadavers. 18th and 19th-century grave robbers, for instance, were not indicted for theft of corpses but were instead charged with stealing cerements.

There is, however, an exception to the no-property rule. Work on a deceased's body parts and you might be able to assert ownership of them. Authority for this work-and-skill exception derives from the High Court of Australia in the grim Doodeward v Spence (1908) 6 CLR 406, where a two-headed stillborn child, preserved as a macabre curio, was exhibited by Doodeward until police seized the item. Ordering the body's return to Doodeward, Griffiths CJ held that a person may lay claim to a body or body part that has, through his labour, "acquired some attributes differentiating it from a mere corpse awaiting burial" (ibid. at 414). Doodeward was recognised in England in R v Kelly [1999] QB 621, where 40 human body parts preserved by the Royal College of Surgeons were held to be 'property' under the Theft Act 1968. Might Leicester University, through work and skill, own all or part of Richard III?

The Plantagenet Alliance's potential litigation is, perhaps, an eccentric reminder of the cryptic law of the dead. For now, Richard III must cry from beyond the grave: "A hearse, a hearse, my kingdom for a hearse."

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