Scottish High Court of Justiciary Decisons

At advising on 17th November 1944,—

LORD JUSTICE-GENERAL (Normand).—This is an appeal against a conviction of stealing a large number of coffin lids and two coffins, and it is also an appeal against the sentence of three years' penal servitude.

The appellant was secretary, resident manager and registrar of the Aberdeen Crematorium. The coffins, with the lids fastened, were delivered to the crematorium, and were intended by those who sent them there to be destroyed in the furnace along with the bodies which they contained. That this was the intention of the relatives is common knowledge, and is apparent from the terms of the instructions which formed the basis of the contract between the crematorium company and the relatives. It is admitted in evidence by the appellant that he was responsible for the removal from the coffins of some 600 lids in the period of four to five years specified in the indictment; and that these coffin lids were by his authority placed and retained in a store at the crematorium, and were ultimately disposed of in various utilitarian ways. There is also evidence that the two coffins, of the theft of which the appellant was convicted, had been brought for cremation along with the bodies of young children contained in them, and had been kept by the appellant's authority for the purpose of using them at the cremation of other children. That rests upon the evidence of one of the employees and on the appellant's evidence taking on his own shoulders responsibility for what happened to those coffins. We are not at this stage concerned with the in human disrespect for the dead or the callous indifference to the feelings of the living, of which the appellant was certainly guilty. The question is solely whether he was properly convicted of the crime of the theft.

Logically, the first ground of appeal is that the coffin lids and the coffins after their delivery to the crematorium were not things which were capable of being stolen. In out law, the crime of disinterring human remains after interment is not punishable as theft, but as the crime of violation of sepulchres. But I am not able to discover any analogy between the violation of sepulchres and the appropriation of coffins or parts of coffins delivered to the crematorium along with the bodies contained in them. If one were to seek for an analogy to interment, it might be found preferably in the process of cremation within the furnace, though it may be argued that the ashes are capable of being stolen, and that it is not until the ashes are interred or disposed of in accordance with the wishes of the relatives that the crime of violation of sepulchres can take place.

The next objection was that there was no appropriation by the appellant of the coffins or of the lids. This is, in my opinion, an unstatable proposition—unstatable both in law and in fact. It is contrary to the appellant's own evidence that the coffins were completely under his jurisdiction for disposal, and that he was merely following a usual practice in removing the lids, storing them, and using them as firewood or employing them in some other "economic way," as he called it, rather than destroying them. His evidence is a plain assertion of his unlimited right of property in a thing which he knew was sent to him under contract for the purpose of destruction, and of destruction only along with the bodies, and this applies both to the coffins and to the lids. Accordingly, in my opinion, there was misappropriation of property which he knew was sent to him merely for destruction by a prescribed method. That being so, there is no doubt that there was evidence upon which the jury were entitled to find the appellant guilty of theft, and I have very great doubt whether there was any relevance in the further contention that it was necessary to establish a guilty intent by other facts and circumstances. In my opinion, the presiding judge would have been perfectly entitled to instruct the jury that the evidence about the alleged practice in other crematoria and the evidence of the appellant's belief in the alleged practice was irrelevant and that they were bound to disregard it. That was not, however, the course taken by the learned judge, and he left to the jury the question whether the felonious intent was established by other evidence, or, more correctly, whether the appellant had by other evidence established that his intent had been innocent. There was evidence led on behalf of the appellant to show that he only did what others do elsewhere, or at least that he believed that he only followed the common practice in other crematoria, and further, that he had not practised any concealment. The presiding judge took a lenient view when he instructed the jury to consider whether the appellant might have entertained an honest and reasonable belief, based on colourable grounds, that he was entitled to treat the coffins as "scrap." The presiding judge pointed out that the jury must not exculpate the appellant merely because he entertained an erroneous belief founded on some singular notions of his own, but that they must discover some evidence that he had rational and colourable grounds for believing that he was entitled to remove, retain and dispose of the coffin lids. The direction could not have been more favourable to the appellant than it was. The onus is rightly placed on him. What had to be proved by him was stated and reiterated with the most careful moderation, and I think that there is no possible objection to the direction on the ground of unfairness. If, then, the evidence put forward by the appellant to prove that he had no guilty intent is to be considered relevant, as the presiding judge directed, some further observations fall to be made. The attempt to prove that the appellant's conduct was in conformity with the practice at other crematoria entirely broken down. It was proved, for example, that the practice at a certain crematorium in England was quite contrary to that alleged. Now, the appellant's counsel has moved that further evidence should be allowed on the practice at that particular crematorium. He proposed to adduce a witness to say that her deceased husband, who had himself nothing to do with that crematorium, had told her that he believed that the practice there was the same as that which had prevailed in Aberdeen in the period founded on in the indictment. Such vague and secondary evidence would be wholly valueless to contradict the evidence of the witness who has already given evidence about that crematorium. It is also valueless as evidence in support of the appellant's alleged belief. The appellant stated in his evidence the sources from which he derived his belief. One of them was a lady whom he met at a conference, but that is not the witness whom his counsel now proposes to adduce. It is therefore irrelevant to inquire what either she or her husband thought about the matter. Then there is the complaint that the presiding judge did not deal fairly with some of the appellant's evidence. The charge refers to the evidence of Superintendent Westland and Detective-constable Nicol relating to an occasion when the appellant said, according to the note taken at the time by the police:

"The usual procedure is that when a cremation takes place the coffin lid is removed, and that coffin lid is held here and used as firewood or is thereafter employed from the economical point of view of not destroying the lid. This is a general practice throughout the whole crematorium movement, and the same lids can be found at Working and other crematoria, as it is the general practice not to destroy the lids."

When the appellant was questioned about that statement, his evidence was that at Aberdeen the lids were removed from the coffins before the coffins were put into the furnace. He was asked why it was done in Aberdeen, and his reply was:

"It was done in Aberdeen because when I started it was my belief that such was the case throughout the country. I had previously been sent to other crematoria to see a cremation being carried out. I have visited, for instance, Edinburgh crematorium, Glasgow crematorium and others, and when I was asked to witness the act of cremation I looked through the peep-hole of the furnace door, and there I saw the body in the coffin. Now, it has become plain to me that what has probably happened in each of these cases was that the lid had been removed but placed at the side of the coffin."

The appellant thus admitted that he had no real foundation for any belief that the coffin lids were removed and not burned along with the coffins at other crematoria, and the presiding judge made this comment on the allegation that what was done at Aberdeen was only what was done elsewhere:

"Well, the first observation to be made about that explanation is that it is not true, and that it is not now maintained to be true, because Dewar in the witness-box, as you will remember, conceded that his ideas of the practice must have been wrong and rested upon an insufficient basis."

Now, that is an exact and fair account of the effect Dewar's own evidence about his statement to the police. Then, a little lower down in his charge:

"You will consider, ladies and gentlemen, as bearing upon the case as a whole, not only the fact that the explanation offered by Dewar was false, and is now admitted to be false…"

That direction to the jury was criticised by the appellant's counsel, who said that the use of the word "false" was unfair and misleading. The presiding judge had already explained in detail exactly what the evidence was, and he had given commentary on it which, as I have already held, was unexceptionable. Further, he left to the jury to consider on the whole evidence the question whether the practice had been established and whether there was any reasonable belief entertained by the appellant in the existence of such a practice. Accordingly, no injustice was done to the appellant. The word "false," if it had been isolated from this context, and if it had not been qualified by what procedes and what follows, might have been misleading, but, properly read in its context, I find that it could not have had any misleading effect upon the minds of the jury. Then it was said that the learned judge had not done justice to the openness, the absence of the concealment with which the appellant had carried out the practices which he admitted. The passage in the charge is this:

"There was finally the evidence to which the Solicitor-General, I thought, quite justly referred, of the expression used by Dewar to the National Fire Service official who came two nights—I think the expression was used only on one night—to remove coffin lids for the purpose of using them in manufacturing the radio cabinets."

On turning to the recorded evidence, I find that the appellant, when handing over the coffin lids, used the expression "Hush-hush." What could be more reasonable than to direct the jury that they might properly consider such an expression when they were deciding whether there was criminal intent?

[His Lordship then discussed a minor objection to the Judge's charge, and continued]—I have now dealt with all the arguments put before us in justification of this appeal, and I move your Lordships to dismiss the appeal.

LORD MONCRIEFF .—I am very definitely of the same opinion, and as your Lordship has done, I dismiss from my attention, when considering whether this conviction in regard to these transactions with coffin lids should stand, all consideration of the cynical disregard of the observance of an ordinary reverence which has been alleged against the appellant and of the outrages he is alleged to have practised upon the public demand for a proper veneration in carrying out the burial of the dead. In considering whether the conviction should stand, I think we must regard the subject of appropriation in this case as of no more moment or value than might attach to some discarded articles of household furniture. It is as so regarding the matter accordingly that I turn first to the principal defence.

That defence is that, be the subject of appropriation what it may, there has been in this case no crime. This first defence was first supported upon an argument in terms of which it was maintained that a body delivered at a crematorium in a coffin for the purposes of cremation becomes on arrival at the crematorium, or at some antecedent stage of the process which was not exactly specified, as remote from human guardianship and as insusceptible of claims of property as is a body which had finally and conclusively been interred. Founding upon the undisputed proposition of out law which affirms that a body, once it has been interred, can no longer be protected by the law against theft, but requires protection under a wholly different chapter of the law, it was said that at some stage—some antecedent stage of the process of cremation—a similar withdrawal of protection against theft befell a body which had been consigned to a trading limited company for the purpose of destruction by fire. In my view, a body that has been consigned for burial ceases to be subject to theft only when interment is complete; and if the doctrine is now to be applied in the case of body consigned for cremation, I think that the proper parallel would be that theft should be regarded as having ceased to be practicable once the body has been enclosed in the furnace. It is when a step has conclusively been taken to set agoing the process of dissolution of the bodies of the dead that the law ceases to protect the body from acts of theft. At that stage such acts are not to be anticipated. It is clear, on the other hand, that there is no stage in the history of a body at which it is more subject to be misappropriated or mishandled than in the privacy of the antechamber which leads to the furnace of a crematorium; and I think that, if the parallel is to be made exact, that is a stage in the operation which most nearly corresponds with the arrival at the cemetery of a body destined to be interred. I therefore do not hesitate to reject this defence as so maintained.

But the same defence was urged upon a further and separate argument. It was said that, in the transactions with these coffins, there had been no completed act of appropriation, and, in any event, no act of fraudulent appropriation. When maintaining this argument, learned counsel for the appellant sought to divide the handling of these coffin lids into two separate chapters. He asked us to consider what would have been the legal consequences of the act of the appellant had that act been confined to the removal of the coffin lids in order to expedite the process of cremation—to the opening of the coffin without any subsequent storing of the lid. I may say incidentally that I question whether, even for the purpose of expediting the process in the interest of the appellant or of the limited company, such an act would have been a permissible act as part of any proper reverent treatment of the bodies of the dead. But with that we are not concerned. Had the act stopped at that stage, I think there would have been force in the argument that a theft had not been completed. But the act did not stop at that stage. In the case of an uncounted number of these coffins, the lids were not only withdrawn from the coffins in order, as is now suggested, that there might be more rapid combustion, but were subsequently removed to a store and eventually parcelled out for the various lucrative uses of them which have been detailed in the evidence. These lids remaining, as I have affirmed, a subject of property at the time when they were removed from the coffins, I can conceive of no more conclusive evidence of the completion of an act appropriation; and, unless this appropriation in the course of dealing with the property of another has been shown to have been other than a fraudulent appropriation, of an unmistakeable act of theft. The property had been placed in the hands of the crematorium authorities under a direction that it should be destroyed by fire. The point was taken that in one of the printed statements which are in use to be filled up; by applicants for cremation what they in terms dedicate to destruction is described only as "the remains." It was suggested that that dedication did not attach also to the coffin. I recall this argument only to reject it.

In their final presentment of this argument, learned counsel had the courage to maintain that, esto an act of appropriation had been completed and the subject appropriated had been the property of another, still there was nothing to indicate that the appropriation was fraudulent. As to this, I am content to agree with what your Lordship has said, that the mere facts as so established are themselves sufficient to furnish conclusive evidence of a completed act of theft. Indeed, I question whether contrary evidence, if tendered, would have fallen to be admitted as relevant. in any case, there is no such evidence before us, and we have merely to draw the inferences which are open to be drawn from the facts to which I have referred.

The concluding argument which was maintained by counsel for the appellant was again an argument which did not fail in courage. It was argued that, whether the act would or would not itself be theft in ordinary circumstances, it could not in this case be regarded as theft seeing that the appellant had professed that, when he committed it, he had done so in the belief that such acts were regularly committed according to the general practice of others in similar circumstances. The appellant does not now profess to labour under

that belief; but even had he still professed it and put it forward now as his belief, I should with your Lordship be most emphatically of opinion that any such evidence is in the highest degree irrelevant. If the evidence is analysed it amounts to this. One who has committed a theft claims to be entitled to say that his theft is not to be regarded as a theft and is not criminal because it is in constant repetition by others. I should myself have thought that no instance of an act or practice of theft more urgently demanded to be restrained by penalty. Again, I recall this evidence only to reject the argument which was founded on it.

Finally, it was said that there was no evidence of financial gain on the part of the appellant, and further that there was no evidence of concealment of his act. I think that, in the absence of contrary evidence and whatever may appear to be the probabilities, we must proceed upon the view that no financial gain was made. The circumstances is no doubt an unusual one, but in view of the other evidence does not in my opinion exclude theft. As regards the openness of the process, I think that this was pressed beyond where it was supported by the evidence. It is true that in the case of one cremation, a single relative was present who made no protest when the coffin lid was removed. It is true that the medical officer of health was present on other occasions and made no protest; but such limited evidence, in my opinion; falls very far short of establishing a public communication and establishes only an incidental communication of what was done. Individuals may be supposed to vary in their reaction to what offends them, and also as regards the knowledge of the world which would give them confidence and perhaps lead them to make a protest. I do not regard the medical officer of health as representative of mourners, nor can I take a single mourner as representing the many others who might have found themselves outraged. It was inevitable that the practice of the crematorium should be within the knowledge of the working staff; and I cannot regard such knowledge as relevant to prove the suggested non-concealment.

I agree with your Lordship as to all you have said as regards the charge of the presiding judge, and also as to what you have said with regard to the tender of further evidence. For the reasons I have given, and assenting to the reasons given by your Lordship, I agree that the appeal must be refused.

LORD RUSSELL .—I concur.

LORD JUSTICE-GENERAL (Normand).—We have now to deal with the appeal against sentence. The Lord Justice-Clerk sentenced the appellant to three years' penal servitude. It was represented to us that that was an excessive sentence, and out attention is called to sentences which have been passed upon persons convicted for the first time of theft. No doubt, if this were an ordinary case of theft, the sentence of three years' penal servitude would be a severe and unusual sentence. But it is far from an ordinary or a usual case of theft. I do not suppose that a case has come into these Courts which contained details so horrifying, so outrageous to public felling, so repugnant to ordinary decency as this case has been. The Court is not only entitled to, but it must in justice, take into account such aggravating circumstances as have been proved in the present case. I think the sentence is justly merited, and I hope it will deter other persons in the like position from repeating such acts as have been established in the present instance. I therefore move your Lordships to dismiss the appeal against sentences.

LORD MONCRIEFF .—I entirely agree with your Lordship.

LORD RUSSELL .—I agree.