In this guest post Barbara Rich discusses  the judgment of the English High Court on the disposal of the body and funeral ceremony of Ian Stewart-Brady in Oldham Metropolitan Borough Council v Robin Makin [2017] EWHC 2543 (Ch); [2017] WLR(D) 670

 

Reginald (“Reggie”) Kray, the survivor of the notorious twin brother criminals who flourished in the East End of London in the mid-20th century, died on 1 October 2000, just after the turn of the millennium. Ten days later, on 11 October 2000, he was buried beside his brother in Chingford Mount Cemetery in north-east London. The BBC reported that he had planned his own funeral, and that out of about 2,500 mourners who gathered in the East End of London, around 200 people watched the burial at the graveside itself. The men responsible for security wore red armbands and badges bearing the initials RKF (Reg Kray’s Funeral).

Yet the Guardian described this as “a shadow of the send-offs afforded to his mother and brothers before him”, each of which had drawn tens of thousands to line the route from the undertakers to the church. An article headed Criminal Funerals: Big and Small by Duncan Campbell in the Guardian in April 2013 surveyed this and other traditional funerals of famous criminals of the 20th and early 21st centuries, commenting that:

“The tone for these was set in the 1980s, in the wake of the Godfather films and the burial of Don Vito Corleone: the limos, the flowers, the dark suits, the dark glasses”

Many of the trappings of the Kray funerals were those of the traditional East End send-off: an extensive cortege of shiny black limousines heaped with floral tributes spelling out affectionate names and sentiments in huge block letters, something that anyone who has lived in inner London in the last fifty years is likely to have seen. Duncan Campbell’s article also describes the 1992 funeral — on which he reported at the time — of a notorious and virtually life-long shoplifter, Shirley Pitts. A floral tribute spelled out the words “Gone Shopping” (her chosen euphemism for her shoplifting activities) and a floral replica of a Harrods bag (Harrods having been one of the main targets of her “shopping”) stood nearby.

In 2011 Richard Littlejohn wrote in the Daily Mail, under the headline Crims ain’t what they used to be of the funeral of Mark Duggan, who he described as “the Tottenham ‘gangsta’” and whose death in a police shooting in disputed circumstances led to protests that sparked rioting in London and other cities in 2011, that it was “a very British occasion, in the finest gangster tradition . . . . almost as elaborate and reverential as a full state funeral”.

Ian Brady

Nearly seventeen years after the last Kray funeral, the death on 15 May 2017 and prospective funeral of another notorious criminal of the mid-20th century, the Moors murderer Ian Stewart-Brady (formerly and better known and here referred to as Ian Brady), has led to litigation in the High Court about the funeral ceremony and disposal of Brady’s body. The Daily Mail’s lavishly indulgent tone towards the public spectacle made of the obsequies of the “finest gangster tradition” contrasts sharply with the abhorrence expressed about what were rumoured to be Brady’s own funeral wishes – in the opening words of its article of 13 October 2017: “’Uniquely evil’ Ian Brady has been denied his last request for music at his cremation.”

As the article explained, the High Court directed that Ian Brady should not have the funeral which he had allegedly planned for himself, and which would have included playing the fifth movement of Berlioz’s Symphonie Fantastique, a depiction in music of a witches’ Sabbath (or in the capitalised words of another Daily Mail article, a “satanic orgy”) at the musician’s funeral. The judge who decided the case, the Chancellor of the High Court, Sir Geoffrey Vos, said he had

“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.”

This was not the only issue of public concern in the prospective arrangements — the local authorities did not wish to have Brady’s ashes scattered anywhere associated with his life and crimes. Tameside’s evidence included the statement that:

“[d]espite these murders happening over 50 years ago, the horror and revulsion has not subsided for the people of Tameside, particularly as one of the children who was murdered was never found and given the burial his mother wished for”

On 13 October 2017, a redacted version of the judgment in Oldham Metropolitan Borough Council v Makin [2017] EWHC 2543 (Ch) was published. An unredacted version will be published no earlier than seven days after the final disposal of Ian Brady’s body in accordance with the directions of the Court. What is clear from the redacted judgment is that the Court appointed an individual, who is for the time being anonymous, to act as the administrator of Ian Brady’s estate in place of the solicitor Robin Makin, who was appointed as executor in Ian Brady’s will. This appointment is not a complete replacement of Robin Makin as Ian Brady’s executor, but only for the limited purpose of dealing with the disposal of Ian Brady’s body in accordance with the court’s directions. The full extent of these directions is redacted but it is to be clear that there is to be no music and no ceremony at the disposal of the body.

The decision of the High Court in Ian Brady’s case is not only newsworthy because of his notoriety, but is legally important. It is principally based on section 116 of the Senior Courts Act 1981, which gives the High Court power to appoint as administrator of the estate of a person who has died someone other than the executor appointed in a will, or the administrator(s) entitled in order of priority to apply for probate on intestacy. Section 116 states:

“(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.”

There is nothing new in Ian Brady’s case in the use of this power for this purpose, although it is the first in which the “uniquely evil” character of the person who has died has been one of the “special circumstances”. Section 116 was first applied in the context of a funeral dispute eighteen years ago, in Buchanan v Milton  [1999] 2 FLR 844, a decision of the current President of the Supreme Court, Lady Hale, when she was a High Court judge.

The decision in Ian Brady’s case also invokes the inherent jurisdiction — that flexible judicial friend — of the High Court. This was the basis for the first legally important aspect of the case. It went further than any previous English decision in a dispute about disposal of a body or about the form and content of an accompanying ceremony, in making specific directions about these, rather than in deciding who out of a number of contending individuals should be responsible for making the decisions. There had been two recent English cases: Anstey v Mundle [2016] EWHC 1073 (Ch) and In re JS (A Child) (Disposal of Body: Prospective Orders) [2017] 4 WLR 1 in which the judges had doubted whether the inherent jurisdiction could extend to directing where or how a person’s body could be disposed of, but these doubts were brushed aside by the judge in Ian Brady’s case with an emphatic assertion that: “The court does have an inherent jurisdiction to direct how the body of a deceased person should be disposed of”.

Secondly, the High Court’s decision takes account of public feelings about Ian Brady and his crimes, and indeed places this public interest firmly above the wishes expressed by Ian Brady in his lifetime. The judge said he had not ignored Ian Brady’s wishes, but that the public interest — made up not only of people with understandable sensitivities as family members of victims of the Moors murders, but also “the public generally” — must prevail.

“In my judgment …. the overwhelming factor in this case is the public interest. The deceased’s wishes are relevant, but they do not outweigh the need to avoid justified public indignation and actual unrest. The claimants were right to bring these proceedings when they genuinely feared that the deceased’s body might be disposed of in such a way as to give legitimate offence to the families of the victims of the deceased and to the public generally.”

Public interest

In some discussions I have had about the Ian Brady decision, people have questioned whether there is a genuine public interest in anyone other than the families of his victims knowing about the details of the disposal of his body and funeral ceremony. But there is always an element of public interest in the disposal of the body of a person who has died. The judgment of Chief Justice Sian Elias in the New Zealand Supreme Court case of Takamore v Clarke [2012] NZSC 116 begins:

“There is important public interest in the disposal of human remains. That is not only for reasons of public health and decency. The public interest is also engaged because in all societies and in all cultures the disposal of the dead is of great significance to the living and to the religious and cultural traditions to which the deceased and those who care about the deceased belong. Conflict about the disposal and treatment of the dead is inevitably distressing for all because it stirs deep feelings. Proper disposal of bodies engages the human rights to dignity, privacy and family.”

In English law, there is an ultimate public duty under section 46(1) of the Public Health (Control of Disease) Act 1984 for local authorities to make arrangements for burial or cremation of someone who has died or been found dead in their area, where it appears that no-one else is doing so. In Ian Brady’s case, despite the participation of three separate local authorities, the Court said that this duty (which was that of Sefton Metropolitan Borough Council) had not yet arisen, so it is not directly relevant to the decision that was made. Earlier similar cases in England have only involved conflicting private interests between individuals closely connected with the person who has died. Although two of the previous cases are judicial review cases which had a public element, one (Burrows v HM Coroner for Preston [2008] EWHC 1387 QB) was in essence a private family dispute with a bearing on the decision of a coroner in releasing a body, and the other (R (on the application of Ghai) v Newcastle City Council [2010] EWCA Civ 59) was not a family dispute, but a question of whether a (still living) person’s wishes for an orthodox Hindu funeral could be accommodated after his death in accordance with the law.

As none of the previous private family dispute cases involved ‘monsters’ or criminal associations in any sense at all, Ian Brady’s case is the first to consider “justified public indignation” caused by the form of ceremony or manner of disposal as an aspect of public interest to be weighed up in the decision. The judge referred to the Victorian law, repealed in 1965, which required executed criminals to be buried in prison grounds and rejected the argument that he was being asked to “reintroduce [it] by the back door”. He said that the local authority claimants “were right to seek to ensure that there is a lawful and decent disposal of the deceased’s body without causing justified public indignation or unrest”.

Funeral disputes prior to Ian Brady’s case

The previous cases, some of which are referred to or discussed in Ian Brady’s case, arose from conflicts between the personal beliefs and values of private individuals. These were conflicts both about the manner of disposal and form of ceremony, and about whose wishes should prevail when a conflict arose. These cases not only record the development of the law, but contain stories which are eloquent both of the lives of the individuals whose deaths gave rise to them, and of social and cultural concerns and posthumous practices of the times at which they were decided. The earliest, Williams v Williams 20 ChD 659 in 1882, precedes but looks ahead to the legalisation of cremation in England. One of the most recent, In re JS (A Child) (Disposal of Body: Prospective Orders) [2017] 4 WLR 1, contemplates the possibility of effective cryonic preservation — the freezing of a dead body in the hope that resuscitation and a cure for terminal disease may be possible in the distant future.

The ashes in the Wedgwood vase

The foundation of the modern English law is Williams v Williams  (1882) 20 Ch D 659, which decided that the executors appointed in a will have the right to possession of the body of someone who has died and the duty to dispose of it. The 19th century judge approached the issue as purely one of property rights, and the decision gave no weight at all to the wishes — which were both highly distinctive and consistent with beliefs and values which had been important to him in his lifetime — which the deceased, Henry Crookenden, had expressed for himself.

Henry Crookenden was an advocate for cremation at a time when it was not yet legal in England. His will instructed his executors to deliver his body to a friend, Eliza Williams, to be dealt with in accordance with private instructions he had given her. These instructions were that he should be cremated and his ashes placed in a Wedgwood vase which he had also given her. On his death in December 1875, the executors did not deliver the body to Eliza Williams, despite her protests, but agreed that his family could arrange for his burial. Eliza Williams later exhumed his body and had it cremated in Italy and claimed the costs of this from the executors. The court refused to order this, principally because the direction to deliver the body to her was legally void, as “a man cannot by his will dispose of his dead body”, but also because there was an element of deceit in the way in which Eliza Williams had obtained the licence to exhume, despite the judge acknowledging “the best of motives” on her part.

Academics and judges have questioned the strength of the reasoning in Williams v Williams but it remains the basis of the rule that gives the primary right and duty of decision-making to an executor or to an administrator on intestacy in order of priority of entitlement.

The “tragedy of a ‘stolen’ son” (Sydney Morning Herald 20 June 1999)

Buchanan v Milton [1999] 2 FLR 844 is not the first 20th century case, but as mentioned above, was the first English decision on disputed disposal of the dead to be based on s. 116 of the Senior Courts Act 1981. The applicant, Cheryl Buchanan, was the birth mother of Dayne Childs, who died in a road accident in England in the summer of 1998, at the age of 26. The respondent, Hollie Milton, was Dayne’s daughter, just a year old when her father died, and represented by her mother, Kirsten Milton, and her grandmother, Annette Childs, who was Dayne’s adoptive mother. Dayne had proposed marriage to Kirsten shortly before he died. Dayne’s birth mother was of Australian Aborigine origin and had given Dayne up for adoption at birth. His adoptive parents were English citizens living in Australia at the time, but returned to live in England with Dayne from the late 1970s onwards. As Hale J described it:

“The family came back to this country when Dayne was about six and he grew up here, going to school here, playing sports here, forming a rap-band called Citizen’s Arrest, and later another one. He moved into his own flat when he was 19 but stayed in the area and in close touch with the rest of his family. He worked as a journalist with a local publisher. He was tall, dark and handsome. His image was, as his brother put it, “very cool”. He was popular with women. He was aware of his Aboriginal origins but he was a fully integrated member of the Childs family and shared their grief at the death of Mr. Childs in, I believe, 1996.”

Dayne’s awareness of his Aboriginal origins came from contact made with him by his birth mother following a change in Queensland law permitting her to obtain identifying information about him. He visited Australia and spent time with members of his birth family in 1996. Hale J said it was an important part of the history in the case that Dayne had been described in the Australian media as one of the “stolen generation” of Aboriginal children, explained by a professor of anthropology who gave expert evidence for the respondents, as follows:

“The phrase ‘the stolen generations’ refers to indigenous Australian children taken from their families by compulsion, duress or undue influence. Compulsion can be ‘legal, such as where a court orders a child to be removed for neglect; duress and undue influence may occur where the family didn’t have any real choice because of the pressure put on them by people or circumstances to induce the surrender of their children.’”

Following Dayne’s death, a dispute arose as to whether his body should be cremated and his ashes buried next to those of his adoptive father in England, as his adoptive family and Hollie’s mother wished, or whether his birth family’s wishes, as expressed by his mother in her own words below, should prevail:

“… cremation is not acceptable within aboriginal culture. Aboriginal people are not cremated because we believe that the spirit is interrupted … we need [the Childs family] to make a decision urgently to allow us to return [Dayne] to his birth place. In traditional Aboriginal culture it is essential that a child’s birth place is also the place where they are laid to rest … this is not about anybody’s rights, except [Dayne’s] birth right, which is for him to come home.”

Despite some willingness to compromise, the two families were ultimately unable to agree. Dayne’s mother asked the Court to appoint her as administrator under s. 116 of the Senior Courts Act 1981, passing over the respondents who were entitled to take a grant on behalf of Hollie, as a child, on Dayne’s intestacy. In Hale J’s words, the legal proceedings “caused uncontrolled grief to everyone concerned”.

Hale J accepted that the “very unusual circumstances” of Dayne’s adoption (as perceived by his birth family) and his Aboriginal heritage and the burial practices associated with it, among other things, were “special circumstances” within the meaning of s116. But she did not agree that it was either necessary or expedient as a consequence to appoint Dayne’s birth mother as administrator of his estate. She considered the views of Dayne’s birth family, and of his adoptive family, the interests of Hollie, and the wishes of Dayne himself.

Unsurprisingly, for he had been a young man in good health, there was no direct evidence of any views Dayne had formed or expressed in his lifetime about how he wished his body to be dealt with after his death. Hale J rejected the suggestion that he “would have wished” his remains to be returned to Australia. She said:

“Such evidence as there is suggests that he was interested but troubled by what he encountered in Australia and was far from ready to embrace the culture and beliefs offered to him there.”

Reading the judgment as a whole shows that the evidence of the other factors the judge identified, and on which she could draw firmer conclusions, were more influential on her clear decision that it was not expedient to override the respondents’ right to administration of the estate on behalf of Hollie.

Dayne was buried in Norwich shortly after the judgment was given.

Human rights and the wishes of the dead

Burrows v HM Coroner for Preston [2008] EWHC 1387 (QB)

The question posed in this case, which followed the suicide of a troubled teenage boy, Liam McManus, in a young offenders’ institution, is set out in the opening paragraph of the judgment:

“Who has the right to make the funeral arrangements: the natural parents of a young man on the one hand, or a person who has brought him up for a considerable period of his life on the other? The common law provides a bright line rule, although the issue which has arisen in this case is whether that bright line has been blurred through the lens of statute and the European Convention of Human Rights.”

The dispute was between Liam’s uncle, who had largely brought him up with his own family, and who was described as his “psychological parent” by the judge, and Liam’s mother, who was a long-standing heroin addict. Liam, who had self-harmed before his death, had said that if he died he wished to be cremated, but his mother wished him to be buried with other family members.

Cranston J referred to the jurisprudence of the European Court of Human Rights — specifically two cases in which, although the court had found the public authorities in Germany and Sweden respectively to have been justified in refusing certain burial arrangements, it was accepted that Article 8 rights to respect for private and family life were engaged. The judge went on to say (at paragraph 20)

“One thing is clear, that in as much as our domestic law says that the views of a deceased person can be ignored it is no longer good law. That rule of common law can be traced back to Williams v Williams, where it was said that directions given by a deceased as to the disposal of his body were not enforceable as a matter of law. It is quite clear from the jurisprudence of the European Courts of Human Rights that the views of a deceased person as to funeral arrangements and the disposal of his or her body must be taken into account. However, this aspect of Strasbourg jurisprudence is easily accommodated within domestic law: in this type of case a person’s wishes can be regarded as a special circumstance in terms of Section 116 of the Act. Otherwise, the jurisprudence of the European Court of Human Rights does not cast doubt on the domestic law. [The order of priority for applying for letters of administration on intestacy set out in the Non-Contentious Probate rules] can still apply. Special circumstances may displace the order of priority set out there although a high test has to be satisfied, whether it is necessary or expedient to do so.

…

Where, as here, there is a conflict in terms of the engagement of family life under Article 8.1, the Court is required to focus intensely on the comparative importance of the different rights being claimed, and to balance those competing rights so as to minimise the interference with each to the least possible extent. This becomes relevant to the order to be made in this case, which seeks to accommodate both Mr Burrows and Mrs McManus.”

The judge concluded that the order of priority of administration of Liam’s estate should be displaced in favour of his uncle, who would make funeral arrangements in accordance with Liam’s wishes.

A few years later, in Ibuna v Arroyo [2012] EWHC 428 (Ch), a dispute between the partner and the first wife of a Philippines congressman who had died in London, Peter Smith J expressed disagreement with the view that there could be a post-mortem application of human rights “in relation to a body as if it has some independent right to be heard” and preference for the Buchanan v Milton approach, which he paraphrased as: “In disposing of the body the executor is entitled to have regard to the expression [of wishes] made by the deceased but is not bound by them.”

In fact, as I read Burrows, it does not give the deceased “some independent right to be heard”, but a clear rationale within an existing legal framework for giving weight to wishes expressed by someone when living about how their body is to be disposed of after their death. This is entirely consistent with influential thinking in a different line of cases about the extent to which a living person has an interest in what happens after their death.

The interests of a living person in posthumous events

On 9 December 1992, the Court of Appeal gave judgment in the case of Tony Bland, the “cheerful teenager from Keighley”, who was crushed in the crowd of spectators at Hillsborough in 1989 and who had been in a persistent vegetative state of consciousness ever since. The courts — ultimately the House of Lords which was then the court of final appeal in the UK — had to decide whether it would be lawful to withdraw his clinical life support, resulting in his inevitable death. In the Court of Appeal, Lord Justice Hoffmann spoke of

“the fallacy . . . that we have no interests except in those things of which we have conscious experience. But this does not accord with most people’s intuitive feelings about their lives and deaths. At least a part of the reason why we honour the wishes of the dead about the distribution of their property is that we think it would wrong them not to do so, despite the fact that we believe that they will never know that their will has been ignored. Most people would like an honourable and dignified death and we think it wrong to dishonour their deaths, even when they are unconscious that this is happening. We pay respect to their dead bodies and to their memory because we think it an offence against the dead themselves if we do not.” (Airedale NHS Trust v Bland  [1993] AC 789 at 829)

This eloquent rationalisation of the weight to be given to the wishes of the living after their death was echoed in some of the first judgments under the Mental Capacity Act 2005 on making wills for adults who lack mental capacity. In  Re M: ITW v Z [2009] EWCOP 2525  (sub nom In re M (Statutory Will) (Practice Note)  [2011] 1 WLR 344) Munby J referred to what Lord Justice Hoffmann had said in Bland and said [38]:

“We have an interest in how our bodies are disposed of after death, whether by burial, cremation or donation for medical research. We have … an interest in how we will be remembered, whether on a tombstone or through the medium of a will or in any other way.”

These decisions are best interests decisions taken by a court on behalf of a person who lacks mental capacity to make the decision, now in a statutory structured decision-making process, weighing up all relevant considerations, including the person’s past and present wishes and feelings, beliefs and values. Modern decisions about disposal of bodies and form and content of funerals show an increasing similarity to the intellectual process of best interests decision-making — indeed Hale J in Buchanan v Milton acknowledged that “balancing a set of interests in a neutral but structured way” was “more comfortable territory” for her as a judge of the Family Division. The parallel approach is even clearer when the decisions about disposal of bodies and form and content of funerals are framed as an exercise of the court’s inherent jurisdiction rather than being rooted in the primary right of the executor or person(s) entitled to administration of an intestate estate to possession of the body.

The inherent jurisdiction of the court

Re JS (Disposal of Body) was a decision about a 14 year old girl with incurable cancer, whose parents were estranged and who disagreed as to what should happen to her body after her death. JS, the girl herself, had learned something about cryonic preservation and expressed a wish that her body should be preserved in this way. Her mother supported her wishes, but her father, with whom she had not had contact for some time, initially opposed them. JS had written:

“I have been asked to explain why I want this unusual thing done. I’m only 14 years old and I don’t want to die, but I know I am going to. I think being cryo-preserved gives me a chance to be cured and woken up, even in hundreds of years’ time. I don’t want to be buried underground. I want to live and live longer and I think that in the future they might find a cure for my cancer and wake me up. I want to have this chance. This is my wish.”

As she was a child, JS was unable to make a will appointing an executor to give effect to her wishes after her death. Each of her parents had an equal prospective right to take a grant of letters of administration on her intestacy. If there was to be any possibility of giving effect to her wishes, there would be no time for litigation to decide the question after her death. As the judge, now Peter Jackson LJ, explained, the case was not about whether or not JS’s body should be cryonically preserved, but about whether the court could or should make any order before her death to resolve the dispute between her parents that hung over the arrangements to be made after her death. He made a number of orders, including a prospective order both under s116 and the inherent jurisdiction of the court appointing JS’s mother as the sole administrator of JS’s estate with the right to make arrangements for the disposal of her body. He had no difficulty in accepting that there were “special circumstances” within the meaning of s116, but was more concerned about whether or not he could make a prospective order before JS’s death. He made an explicit connection between JS’s welfare in her lifetime and the decision as to what was to happen after her death. He also took note of a decision in New Zealand: Re JSB (A Child)  [2009] NZHC 2054; [2010] 2 NZLR 236 (HC) which had upheld a jurisdiction to make a decision about appropriate funeral arrangements for a brain-damaged child during the child’s lifetime. That decision was based on the existence of an inherent jurisdiction and acknowledgment of a concept of best interests subsisting after death [55] – [56]:

“applying to a continuum, from the beginning of life until after its end . . The existence of the continuum favours this Court’s ability to do such things as are necessary to protect the interests of the living child, after death.

Viewed as a continuum, the inherent jurisdiction covers the very situation that has arisen in this case. Provided that there is justification for the view that an order is required, while JSB is alive, to protect his best interests after death, I hold that the inherent jurisdiction can be used to make such an order.”

Peter Jackson J said that he would not conceptualise the matter in the same way, because there was no exact equivalent provision in English law to the statutory roots of the inherent jurisdiction of the High Court of New Zealand. But it is possible that the approach of the New Zealand Supreme Court to the same inherent jurisdiction in Takamore v Clarke [2012] NZSC 116 will be more influential in England in the future.

Takamore v Clarke has echoes of Buchanan v Milton in being a conflict between the funeral practices of an indigenous people in Australasia and those of people of European origin. James Takamore was buried by members of his indigenous family without the consent of his long-standing partner and executor, who brought a claim for recovery of his body and was successful in the High Court, Court of Appeal and the Supreme Court, although with significant differences in reasoning between the majority and the minority in the Supreme Court. The Chief Justice, who was in the minority, did not accept the common law rule that an executor has the right to decide on the disposal of the body, nor did she base her decision on a clear expression of wishes by the deceased, although she described it as “unacceptable to say that the views of the deceased are views that can be ignored”. Her decision that James Takamore’s partner should decide about the final disposal of his body was “consistent with the choices he made in life, which were to put [her and their children] first.”

Although the majority of the Supreme Court disagreed with the Chief Justice’s analysis of the existence or otherwise of the executor’s right of decision-making, it came to a substantially identical decision that “Mr Takamore’s life choices, in living … with his partner and children, carry greatest weight and, ultimately, are determinative.”

In Ian Brady’s case, Vos C referred to Takamore, which he described as “persuasive” and said that he thought that all of the judges agreed with the Chief Justice that “where there is a dispute as to burial, either party has standing to bring the dispute to the High Court for resolution”.

Some conclusions

The decision in Ian Brady’s case reflects an expansive view of the inherent jurisdiction over administration of estates of the High Court in England. It also illustrates the extent to which the court will intervene to prevent fulfillment of wishes formulated and expressed by a person in their lifetime, if they are outweighed by an identifiable public interest. This is at striking variance with the extent to which the law, as it has developed through cases about people whose lives were far removed from those of the “uniquely evil” Ian Brady, has increasingly recognised and given weight to a deceased person’s lifetime wishes and feelings about how their body is to be disposed of and with what ceremony.

The decision raises interesting and potentially difficult questions for the future. The difference between public acceptance of and attendance at the spectacle of funerals such as the Krays’, and public revulsion from the prospective funeral of Ian Brady probably reflects both the different nature of their respective crimes and victims of those crimes, and deeper changes in culture and attitude towards posthumous reputation. In 2012 Jimmy Savile’s family requested the removal of his headstone from a Scarborough cemetery “out of respect to public opinion” following the widespread broadcasting of allegations of crimes during his lifetime. His estate has been involved in post-death litigation arising from the alleged evils of his lifetime. In 2013 Massachusetts residents protested outside a funeral director’s office against the local burial of the Boston Marathon bomber, Tamerlan Tsarnaev, who was killed in a shoot-out with police whilst evading arrest. He was eventually buried without ceremony in an unmarked grave in the state of Virginia.

It is foreseeable that the arguments raised in discussions such as this articleabout Tamerlan Tsarnaev’s case will be articulated in litigation in the future. The courts may well have to weigh up the wishes expressed by the person who has died and the rights of family members, even of “heinous criminals”, to make funeral arrangements in accordance with their own wishes and practices, against the interests both of individuals with a connection to the victims of their crimes and of the more general public, asserting a right not to be affronted by the manner of disposal of the body or the ceremony which accompanies it.

UPDATE — 5 & 7 NOVEMBER 2017

Publication of the unredacted judgment — its contents

On Friday 3 November 2017, the news that Ian Brady’s funeral had taken place the previous week, on 25 October, was widely reported, and the unredacted judgment in Oldham Metropolitan Borough Council v Makin [2017] EWHC 2543 (Ch) was published. All that the unredacted judgment adds to the redacted version published on 13 October is the identity of the administrator appointed by the Court to superintend the funeral arrangements and disposal of Ian Brady’s body, the identity of the second defendant to the application, and the details of the arrangements themselves.

The appointed administrator is Ms Sandra Stewart, executive director for governance, resources and pensions of Tameside Metropolitan Borough Council (“Tameside”), the second claimant in the case. Tameside was involved , as was Oldham, because there were public concerns that Ian Brady’s ashes might be scattered within its area, an area which was also closely connected with the murders committed by Ian Brady in his lifetime. Tameside had asked Robin Makin for an assurance that Ian Brady’s ashes would not be scattered in its area. Robin Makin’s position was that neither Oldham nor Tameside were entitled to know what his intentions and plans were.

The second defendant to the application was Royal Liverpool & Broadgreen University Hospital NHS Trust. This NHS Trust had actual possession of Ian Brady’s body in its mortuary, and had done so since his death in May 2017, and had brought its own application for permission to arrange for its disposal if it was not removed by Mr Makin or anyone else with authority to do so.

The details of the arrangements for which Ms Stewart were to be responsible, as set out in the court’s order were:

i) Ian Brady’s body was to be cremated by Sefton at Southport municipal crematorium no later than Friday 27 October 2017

ii) The cremation was to take place in a spare cremator out of normal crematorium hours. Although this did not form part of the court’s order, newspapers reported that the cremator was professionally cleaned after being used to cremate Ian Brady’s body

iii) No music was to be played during the cremation and there was to be no ceremony before during or after the cremation

iv) There were to be no flowers present and no photography undertaken before during or after the cremation

v) The only persons permitted to attend the cremation were to be Mr Makin, Ms Stewart, and the Senior Registrar of Bereavement Services of Tameside, in addition to crematorium staff and police

vi) Ian Brady’s ashes were to be entrusted to Ms Stewart for disposal at sea as soon as reasonably possible after the cremation, and in any event within 7 days of it

vii) The only persons present at the disposal of the ashes were to be Ms Stewart, the Senior Registrar of Bereavement Services of Tameside, in addition to necessary staff and police.

News coverage of the cremation and disposal of the ashes

Once made public, the details of the cremation and disposal of Ian Brady’s ashes received extensive coverage in the media, accompanied by many photographs of him and of his tragic victims, and interviews with some members of the victims’ surviving families. They had been told in advance of the arrangements, and gave reporters a more detailed explanation of the weighted, biodegradable urn which was used to ensure that the ashes sank to the sea floor, and that the urn disintegrated shortly after immersion. One family member was reported in the Daily Mail as saying “If I had my way, I would just flush his ashes down the toilet”. Many other members of the public have made similar comments.

Tabloid headlines immediately after Ian Brady’s death called for him to “Burn in Hell”. Some commentators on the news expressed unhappiness at what they perceive as equivalent treatment to a burial at sea, traditionally regarded as an honourable disposal of the remains of sailors and those who die at sea. But there is considerable difference between the traditional ceremony of a burial at sea of a draped coffin, and the unceremonious casting-off in the small hours of the night in an unknown location of a disposable urn of anonymous ashes.

But another family member praised Tameside for taking legal action to ensure Ian Brady’s last wishes were not put into effect, saying:

“I honestly think he should not have had any wishes, I don’t think he had any rights at all to expect anything when he died. This was the only way to really put the families at ease and the public as well.”

This is not quite how the court decided the case, but it reflects the essence of the decision.

The MP for Southport, Damien Moore, was a dissenting voice. On 3 November he published an article on his website in which he criticised the decision to cremate Ian Brady’s body in Southport, saying:

“I find the decision to secretly cremate Ian Brady’s body in Southport completely inappropriate and disrespectful. I am beyond astounded by this distasteful decision.

I have written to the Justice Secretary to outline my thoughts on this decision and request a thorough explanation as to why this has been allowed to happen without any forewarning or consideration for families who unknowingly used the crematorium on the same day.”

Perhaps this reflects what some of his constituents have been saying to him. Others who have commented publicly have taken the reasonable and phlegmatic view that the cremation had to take place somewhere, and pointed out the various “non-contamination” stipulations in the court’s order. Some of these conditions were originally proposed by Sefton MBC itself in correspondence, as described in the judgment, and the local authority was a party to the hearing, and could fairly be said to be representing the interests of the local public. Perhaps the Conservative MP’s astonishment has its roots in local politics and some desire to be seen to criticise the Labour-controlled local authority.

But more seriously, I think it is wrong for an MP to ask a Minister for a “thorough explanation” of the published reasoned decision of an independent judge. A legislator should have more respect for the constitutional separation of powers between the government’s executive and the judiciary. And making and responding to such a request is a complete waste of time on which there must be many other pressures.

Public interest revisited

Robin Makin argued unsuccessfully that the hearing in October 2017 which led to the court’s order should have been in private, not in public. The judge was emphatic that (although some of the details were discussed in private during the hearing and redacted on first publication of the judgment):

“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. It is true that the public is interested in the deceased because of his serious crimes, but that did not make it any the less important the the issues before this court were determined in public.” [63]

This is a plain acknowledgement that “what interests the public” is Ian Brady’s crimes, and much of the media coverage reflects this, with very detailed accounts of the suffering of his victims. The courts often draw a line between “what interests the public” and what is genuinely in the public interest from a legal point of view. In this case and its coverage, the line has been blurred. The true “public interest” in the decision itself was the judge’s conclusion that avoiding “legitimate offence” to the families of the victims and the public generally should outweigh any wishes Ian Brady had expressed for himself. But the “interest of the public” in his serious crimes has given him posthumous publicity. It has made a public spectacle of indignation that even such a serious criminal should be entitled to the same “lawful and decent disposal” of his remains as anyone else, rather than being subjected to some antiquated posthumous punishment or indignity. It is as if, for some people, the public spectacle of execution of criminals has been replaced by a public spectacle of outrage that such executions no longer take place. Indeed, in the aftermath of the Boston Marathon bombing in 2013, on the day of the hunt for and death of Tamerlan Tsarnaev, Donald Trump called for a “public execution for all to see” of the bombers.

A final conclusion

A civilised system of law is not one in which the human remains even of an “uniquely evil” criminal are subject to posthumous punishment. The threshold of “lawful and decent disposal” is as universal as death itself. But a civilised system of law is also one which recognises that people have interests that extend beyond their own conscious life, and seeks to respect wishes that they have expressed about what should happen to their remains, unless there is a compelling reason not do so. In another funeral case recently reported in the news, (that of an Edinburgh couple held in a mortuary for 15 years whilst their son proposed to build a private mausoleum for them in his garden), the Court of Session in Scotland in The City of Edinburgh Council v Marcel [2017] CSOH 15 had no difficulty in finding that the local authority’s statutory duty — which was identical to that of the English local authority in Ian Brady’s case — of arranging burial or cremation if no suitable arrangements were otherwise being made, had arisen, but the judge recognised the importance of such wishes even in complying with the statutory duty, saying [11]:

“I should add that it would be helpful, although I cannot compel it, if the City of Edinburgh Council, in carrying out their statutory duty, would give due consideration to any realistic requests made by the defender and his family as to the arrangements for disposal of his parent’s bodies. It is appropriate that the families’ wishes in this regard, if they have any, are considered. It is important that the City of Edinburgh Council undertake their statutory duties sensitively and with respect, as I am sure they will do.”

It’s difficult not to feel something for the courage of Henry Crookenden, the advocate of cremation, and for that of the 14-year old girl known only as JS, who wished to be cryonically preserved. Both expressed unconventional and untested wishes for the posthumous treatment of their bodies. Henry Crookenden’s wishes were simply irrelevant to a court in 1882, but JS’s wishes were taken intensely seriously by a court in 2016.

It seems just in this context that Ian Brady’s wishes should have been considered, but outweighed by public interest, and the disposal of his remains completed with no more than the minimum that “lawful and decent” requires — no Wedgwood vase but a biodegradable urn, unceremoniously and irretrievably immersed in the Atlantic Ocean.

 

This post was originally published on Barbara’s Medium account on 30 October 2017, and was updated 5 November 2017 following publication of the unredacted judgment and media reports of the funeral and 7 November to note the response to judgment of the MP for Southport.

Image of Funeral cortege for Reg Kray 11 October 2000 (John Fleming) reproduced with thanks.