Adapted extracts from an e-mail to the Natural Death Centre.
Nicholas Albery of the Natural Death Centre e-mailed me with the following request:
"Our charity has had an unusual enquiry from the father of a stillborn baby asking if he can legally cremate the body outdoors. The surprising advice we have received is that in theory, a funeral pyre that causes no 'nuisance' (ie pollution or smell) seems to be legal, as long as no construction is made which could be defined as a crematorium. Is this correct? What would your reply be?"
My response, very much off the cuff, is that (a) it may be that it could be lawfully done but (b) that does not mean to say that carrying out the cremation would not be attended with a risk of prosecution. I could not say whether I agreed with the reason given without knowing more of the reasoning behind it. It seems to me that it might proceed on the basis that a stillbirth counts as human remains within the Cremation Act. If it does not proceed on that basis then I do not see why the qualification might be thought necessary.
Assuming that no public nuisance is caused and the requirements under the Registration Act relating to the registration and disposal of stillborn children are complied with and depending on the circumstances, the risk of prosecution would be for either or both of:
(a) An offence under the Cremation Act and Regulations of failing to cremate the body in a properly licensed crematorium. My argument, which is developed fully in my Medicine, Science and Law article (see below), is that an argument can be made for saying that cremation on an open pyre is not necessarily unlawful. But I would not expect the Home Office to agree and, if they or the CPS brought a prosecution, I would expect their argument to be that cremations can be lawful only if carried out in a properly licensed crematorium.
Or (b) the common law offence of outraging public decency (and whether it did outrage public decency, if the case went to trial, would have to be determined by a jury).
I think there would be very little danger of a local authority trying to intervene - or doing so successfully - under the Public Health (Control of Diseases) Act 1984 s 46 on the grounds that the arrangements for disposal of the body were not suitable, since the power under section 46 can be exercised only in respect of the "body of a person who has died" and one has to have lived before one can die.
I have written a couple of articles or essays which touch on the question of whether it can be lawful to cremate the body of a person who has died on an open pyre. (If it can be lawful to do this in respect of the body of a person who has lived, it would be surprising if it could not be lawful to do it in respect of the body of a person or so-called 'thing' that has never lived.) The articles/essays are:
'An End to D-I-Y Cremation?' (1992) 33 Medicine, Science and the Law 151
and
'Hindu Cremations in Britain' in Peter Jupp and Glennys Howarth (eds), "The Changing Face of Death: Historical Accounts of Death and Disposal" (Macmillans, 1997) 135.
The latter essay touches on the question: is an open pyre a crematorium as defined by the Cremation Act, ie a building fitted with appliances for the burning of human remains?
Please note that I am giving this advice without accepting any responsibility for its accuracy. I am an academic lawyer and not a professionally qualified (and more importantly insured) one.
Stephen White, 16 Tymynydd Close, Radyr, Cardiff CF4 8AS, Wales (tel 01222 842 453; e-mail: whitesr@srgw.demon.co.uk).
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