The Significance of a corpse in the law of offences against the dead

: A theoretical and doctrinal analysis of England & Wales and Canada

Abstract

A corpse in criminal law has a unique legal status. A corpse is more than just a dead body, it is a family member, a friend, and someone who was a part of society and warrants special treatment as a result. A firmly held belief is that the deceased deserves to be treated with respect and dignity. Currently, the legal status of a body in English and Canadian criminal law is unclear. This thesis aims to understand how both jurisdictions deal with offences against the dead. Since both jurisdictions (like many others) have strongly held beliefs in how the dead are to be treated, the justification for these particular criminal laws must be fully understood.

Current research in this area centres on the ‘no property rule’ and the issues regarding ownership of bodies, bodily material, and organ donation. Previous research reviews the general laws related to the dead, but there has been little research that specifically focuses on the criminal laws and offences against the dead. This project utilizes a mixed-methods approach to discover the underlying rationales behind these offences in English and Canadian law. The two jurisdictions have a shared legal history, but their approach to offences against the dead are different. England and Wales have an amalgam of common law and statutes related to the dead while Canada has implemented a codified approach. In addition, this thesis also combines doctrinal and theoretical research to illustrate the current offences in both jurisdictions, as well as to identify possible explanations for their existence. There are three research questions addressed within this thesis: To what extent do different criminal laws for the dead exist in Canadian and English law? What is the underlying purpose of criminal laws regarding the dead? And can the dead be harmed?

Both the English and Canadian law have not clearly articulated the harms and wrongs in offences against the dead. Each jurisdiction also has a number of significant drawbacks and benefits. Through implementing the harm and offence principles, the harms and wrongs in offences against the dead can be against the family and friends of the deceased, society at large, and the living’s interest in their post-mortem body. Furthermore, a rights-based argument also suggests that the dead are treated as if they are rightsholders and possibly human rightsholders. These findings are underlined by the notions of dignity and respect. Based on this research it is suggested that the Canadian codified law is more advantageous than the English counterpart and the dead are already treated as if they can be harmed.

Date of Award	Dec 2021
Original language	English
Awarding Institution	Queen's University Belfast
Supervisor	Heather Conway (Supervisor) & Ronagh McQuigg (Supervisor)