* The authors would like to thank Margot Brazier, Andrew Sanders, Sally Sheldon, the participants at the 2013 Society of legal Scholars Conference and the anonymous reviewers for their helpful and insightful comments. All errors remain our own.

1. S Laville ‘Tetra Pak heir Hans Kristian Rausing admits preventing wife's burial’ The Guardian 1 August 2012. See also R v Rausing Sentencing Remarks; available at https://www.judiciary.gov.uk/judgments/rausing-sentencing-remarks-01082012/ (accessed 28 September 2015).

2. A freedom of information request submitted by the authors to the Crown Prosecution Service revealed that the number of convictions for the offence has been increasing: 2010–2011, one convicted; 2011–2012, four convicted, one acquitted; 2012–2013, one convicted; 2013–2014, 14 convicted, one acquitted. These figures represent the numbers charged and reaching first hearing in magistrates’ courts. FOI request number: 4512.

3. ‘Amanda Hutton jailed for Hamzah Khan killing’ BBC News 4 October 2013; available at http://www.bbc.co.uk/news/uk-england-24401112 (accessed 28 September 2015).

4. See generally Brazier, M and McGuinness, S ‘Respecting the living means respecting the dead too’ (2008) 28(2) Oxford J Legal Stud 297 Google Scholar.

5. For further discussion, see: Husak, D Overcriminalization (Oxford: Oxford University Press, 2008); Duff, A et al (eds) The Boundaries of the Criminal Law (Oxford: Oxford University Press, 2010)Google Scholar. See also Ashworth, A and Zedner, L ‘Defending the criminal law: reflections on the changing character of crime, procedure and sanctions’ (2008) 2 Crim Law & Phil 21 Google Scholar.

6. [1974] 1 QB 95, [1973] 3 All ER 286, CA.

7. Ibid, at 98.

8. Ibid, at 95.

9. Ibid, at 97.

10. JWC Turner Russell on Crime (London: Sweet and Maxwell, 12th edn, 1964; first published 1819) p 1420 Google Scholar. See Hunter, MacKinder and Atkinson (hereinafter Hunter), above n 6, at 98.

11. 2 T R 732, 394, 100 ER 394, 734.

12. Hunter, above n 6, at 98.

13. Ibid.

14. Since Young pre-dates Lynn, which was reported in 1788.

15. Hunter, above n 6. This arguable act of judicial law making by the Court of Appeal has been criticised in Smith, A ‘Judicial law making in the criminal law’ (1984) 100 Law Q Rev 46 Google Scholar.

16. Hunter, above n 6, at 98.

17. See the guidelines at CPS ‘Public justice offences incorporating the charging standard’; available at http://www.cps.gov.uk/legal/p_to_r/public_justice_offences_incorporating_the_charging_standard/ (accessed 28 September 2015).

18. 3 Cr App R (S) 255.

19. Ibid, at 256. The second of these charges was dropped by the prosecution.

20. Under this reasoning, Swindell should have also been found guilty of obstructing the coroner. The reasons that the jury choose not to do so remain with them and, in any event, would not necessarily be instructive regarding what the legal test actually is.

21. R v Parry and McLean (1986) 8 Cr App R (S) 470.

22. Ibid, at 471.

23. 12 Cr App R (S) 76.

24. She received a 12-month custodial sentence.

25. 2 Cr App R (S) 36.

26. Ibid [Mr Justice Latham].

27. Ibid.

28. 2 Cr App R (S) 119.

29. Ibid, at 121.

30. Ibid, at 123.

31. CPS ‘Hans Rausing admits preventing lawful burial’ 1 August 2012; available at http://www.cps.gov.uk/news/latest_news/hans_rausing_admits_preventing_lawful_burial/ (accessed 28 September 2015).

32. R v Rausing Sentencing Remarks, above n 1.

33. Parry and McLean, above n 21.

34. Ibid, at 471.

35. See ‘Geoffrey Sturdey: three plead guilty to burial charges’ BBC News 28 November 2013; available at http://www.bbc.co.uk/news/uk-wales-mid-wales-25135633 (accessed 28 September 2015).

36. See http://www.thelawpages.com/court-cases/Christopher-John-Blackburn-8015-1.law (accessed 28 September 2015).

37. Newport woman “ignored housemate's body for taxi account” BBC News 11 October 2011; available at http://www.bbc.co.uk/news/uk-wales-15258738 (accessed 28 September 2015).

38. ‘haun Cummings murder: Thomas Dunkley guilty of killing ex-boxer’ BBC News 9 May 2013; available at http://www.bbc.co.uk/news/uk-england-leicestershire-22437507 (accessed 28 September 2015).

39. Ibid.

40. While beyond the scope of this paper, research considering cases where there was a decision not to prosecute could provide a more complete picture of the significance of moral judgements regarding lifestyle in the use of this offence.

41. Hunter, above n 6, at 98.

42. For example, in 1887 there were ‘more than a hundred and twenty public Acts of Parliament relating in whole or in part to matters connected with the burial of the dead’. J Brooke Little The Law of Burial (London: Butterworth, 3rd edn, 1902) p ix.

43. Ecclesiastical law took precedence in some areas, such as determining the appropriate mode of burial of the deceased, whether they could be buried on consecrated ground and whether they could be moved once buried.

44. 2 QB 248, 114 ER 97.

45. Public Record Office: ASSI 2/42: Assizes: Oxford Circuit: Crown Minute Books has this indictment, PRO: ASSI 5/211: Assizes: Oxford Circuit: Indictment Files the other (for concealing a birth), quoted in S White ‘The law relating to dealing with dead bodies’ (2000) 4 Med L Int'l 145 at 152.

46. R v Price (1884) 12 QBD 247.

47. 2 T R 732, 394, 100 ER 394.

48. Ibid, at 395.

49. Dow & Ry NP 13, 171 ER 900.

50. Ibid.

51. 169 ER 959; Dears & Bell 160.

52. Matthews, P ‘Property and the body: history and context’ in Stern, K and Walsh, P (eds) Property Rights in the Human Body (Occasional Papers 2, Kings College London, 1897) p 28 Google Scholar.

53. (1866) LQ 1 QB 475, (1867) LR 3 QB 67.

54. Ibid, at 77.

55. 14 Cox CC 522.

56. Ibid (digest) [emphasis added].

57. Price, above n 46, at 253.

58. See the statistics provided by the Cremation Society of Great Britain; available at http://www.cremation.org.uk/ (accessed 28 September 2015).

59. Price, above n 46, at 247.

60. Hunter, above n 6, at 98.

61. Basevi, W The Burial of the Dead (London: Routledge, 1920) pp 1–2.Google Scholar

62. Tomasini, F ‘Is post-mortem harm possible? Understanding death, harm and grief” (2009) 23(8) Bioethics 441 at 444 Google ScholarPubMed.

63. See eg Foster and Dodd, above n 53; Jacobson, above n 55.

64. Construed separately from the question of how they came to be a corpse in the first place.

65. We thank one of the anonymous reviewers for this general point.

66. See eg Callahan, J ‘On harming the dead’ (1987) 97 Ethics 341 CrossRefGoogle Scholar; Feinberg, J The Moral Limits of the Criminal Law: Harm to Others (Oxford: Oxford University Press, 1987) ch 2Google Scholar; Fischer, J ‘Harming and benefiting the dead’ (2001) 25(7) Death Stud 557 Google Scholar; and Stacey Taylor, J Death, Posthumous Harm, and Bioethics (London: Routledge, 2012)CrossRefGoogle Scholar.

67. See Offences Against the Person Act 1861, s 47.

68. R v Ireland [1998] AC 147 (HL), which confirmed the need for there to be an assault and therefore an apprehension of immediate force. See Ashworth, A and Horder, J Principles of Criminal Law (Oxford: Oxford University Press, 7th edn, 2013) p 74.CrossRefGoogle Scholar

69. See R v Chan Fook (1994) 99 Cr App R 147, in which the House of Lords was clear in upholding a line of authorities that ABH does not extend to ‘mere emotions such as fear, distress or panic, nor does it include, as such, states of mind that are not themselves evidence of some identifiable clinical condition’ (per Hobhouse LJ at 152). Although with the increasing involvement of the criminal law in social media interactions, there is a trend towards the criminalisation of acts that cause distress (see Malicious Communications Act 1988, s1). This is in addition to the Public Order Act 1986, ss 4A and 5. This, we suggest, is concerning.

70. Gallagher, S ‘Protecting the dead: exhumation and the Ministry of Justice’ [2008] 5 WJCLI Google Scholar.

71. Above n 53, at 69.

72. Health Protection (Local Authority Powers) Regulations 2010 SI 2010/657, paras 9(6), 10(6).

73. Births and Deaths Registration Act 1953, s 3(1).

74. See Registration of Births and Deaths Regulations 1987 and Interpretation Act 1978 s 17(2)(a).

75. For example, the recent Law Commission report, which looked at the offence of outraging public decency, currently states that the act ‘must be of such a character that it outrages minimum standards of public decency as judged by the jury in contemporary society’. Law Commission Simplification of Criminal Law: Public Nuisance and Outraging Public Decency (London: Law Commission, 2015) para 2.36. The Commission suggest that this ought to be changed to ‘to an extent sufficient to outrage minimum standards of public decency as judged by the jury or other tribunal of fact in contemporary society’ (para 3.118). The Commission view both the current test (and presumably their proposed new one) as constituting an objective rather than a subjective standard (paras 2.41, 3.131). The reason for this is because the question is whether the behaviour was objectively likely to outrage the jury rather than whether any person is actually outraged or offended. However, since the jury is composed of individuals, ‘objective’ tests take on subjective realities, which – as noted in the main text – are likely to change over time.

76. See eg R v Gibson and Sylveire [1991] 1 All ER 439; R v Hamilton [2007] EWCA Crim 2026. The 2015 Law Commission report suggested that the common law offences of public nuisance and outraging public decency should be replaced with statutory offences which require proof of basic intent (see ch 4 of the report).

77. Hamilton, ibid, at 21.

78. Also evident, for example, in offences such as obscenity.

79. Feinberg, J The Moral Limits of the Criminal Law: Offense to Others (Oxford: Oxford University Press, 1987) pp 60–64 Google Scholar.

80. HLA Hart Law , Liberty and Morality (Stanford, CA: Stanford University Press, 1963) p 47 Google Scholar.

81. Feinberg finds this ‘wherever an offended state [ie a disliked mental state] is produced in another without justification or excuse’. See Feinberg , above n 79, pp 1–2.

82. This is a partial reading of Feinberg. Strictly, he does not limit offence to public only, but he does rely on the application of mediating principles to achieve this. These are split into two groups. First, the seriousness of the offence is judged by reference to its magnitude, the ease with which the offence can be avoided and whether the risk of being offended is voluntarily assumed (with abnormal susceptibility discounting seriousness). Secondly, the reasonableness of the conduct is evaluated by considering the importance of the act to the actor, the social utility of the behaviour, the availability of alternative times/places to carry out the behaviour, the extent to which the behaviour is motivated by spite or vengefulness and the nature of the locality (ie whether the offensive conduct is widely known to be present there). Ibid, pp 7–10.

83. Ibid, p 69.

84. Ibid.

85. Albeit Feinberg says that ‘rights would be more economically protected by injunctive orders or civil actions than by the criminal law’: ibid, p 70.

86. Simester, AP and von Hirsh, A Crimes, Harms and Wrongs (Oxford: Hart Publishing, 2011) p 97 Google Scholar.

87. See eg the elements of the offence of ‘Outraging Public Decency’, discussed above.

88. We thank Sally Sheldon and the anonymous reviewer for this point.

89. It is more developed in certain civil law jurisdictions, such as Germany.

90. See Beyleveld, D and Brownsword, R Human Dignity in Bioethics and Biolaw (Oxford: Oxford University Press, 2001) ch 11Google Scholar. While it is common for there to be disagreement over the meaning and content of concepts, especially those which carry both legal and ethical baggage, there is little consensus in the academic literature on dignity. On the different dignity ‘camps’, see Ashcroft, RE ‘Making sense of dignity’ (2005) 31 J Med Ethics 679 at 679 CrossRefGoogle ScholarPubMed.

91. MacKinder did not appeal his conviction for theft.

92. Williams, G Textbook on Criminal Law (London: Stevens and Sons, 1978) p 5 Google Scholar.

93. Swindell, above n 18, at 256.

94. Ibid.

95. Hirst, M ‘Preventing a lawful burial’ (1996) Crim L Rev 96 at 101–103 Google Scholar.

96. The presence of this sort of lesser offence can also be found elsewhere, with a similar potential for unjustified usage. Sally Sheldon, in relation to the concealment of a birth, an offence under s 60 of the Offences Against the Person Act 1861, says that ‘offering the possibility of prosecution for the lesser offence of concealment of birth when a more serious offence (unlawful procurement of miscarriage or murder of a newborn child) is suspected but cannot be proven’. See ‘The decriminalisation of abortion: an argument for modernisation’ Oxford J Legal Stud, forthcoming.

97. There are a variety of circumstances in which a death may be reported to the coroner. See Ministry of Justice Guide to Coroners and Inquests and Charter for Coroner Services (London: Ministry of Justice, 2012) s 5Google Scholar.

98. Coroners and Justice Act 2009, s 2.

99. Ibid, s 2.2.

100. Hunter, above n 6, at 96.

101. Swindell, above n 18, at 256.

102. R v Purcy (1933) 24 Cr App R 40.

103. (1993) 14 Cr App R (S) 115.

104. [2004] 1 Cr App R (S) 40.

105. [1998] 1 Cr App R (S) 385.

106. Ibid, at 388.

107. Ibid, at 389.

108. Ibid.

109. The relevant elements came into force on 30 April 2014.

110. See s 4, which is subject to s 14.

111. As outlined in the key authority of Purcy, above n 102. This duty was also emphasised to us in an email exchange with Mark Paul, Area Legal Advisor, CPS West Midlands.

112. See eg R v Williams (1991) 92 Cr App R 158.

113. See CPS, above n 17.

114. 1 Cr App R (S) 341.

115. Other cases following Doyle but with a charge of preventing a lawful and decent burial include R v Sullivan [2003] Cr App R (S), where the body of a man who had died from a drug overdose was kept in the boot of a car for four months, and R v Munday [2003] Cr App R (S) 23, where the defendant helped a friend bury an acquaintance who had died from a drug overdose. In both cases, custodial sentences (three and a half and two and a half years, respectively) were given.

116. CPS, above n 17. One might also draw attention to the principle that where two offences overlap and one exists in statute, prosecutors ought to prefer this charge. See Lord Bingham in R v Rimmington and R v Goldstein (2005) UKHL 63 at para 30. We are grateful to one of the anonymous reviewers for this point. However, this does not assist in guiding prosecutorial agencies who are faced with a choice between various overlapping common law offences.

117. For example, it may be appropriate to charge ABH where there is not sufficient evidence of GBH, sexual assault instead of rape and so on.

118. While the CPS charging guidelines only mention the offence of disposing a body with the intent to prevent an inquest, their guidance on coroners clearly notes that ‘disposing of a body before a Coroner can openly inquire into the circumstances of a death’ is also an offence. See CPS ‘Coroners’; available at http://www.cps.gov.uk/legal/a_to_c/coroners/ (accessed 28 September 2015).

119. King, above n 23, at 77.

120. Pedder, above n 25, at [36].

121. See Chalmers, J and Leverick, F ‘Fair labelling in criminal law’ (2008) 71(2) Mod L Rev 217 Google Scholar.

122. CPS, above n 17.

123. See Ashworth, A and Zedner, L ‘Prevention and criminalization: justification and limits’ (2012) 15 New Crim L Rev 542 CrossRefGoogle Scholar.