>>> Robert Stevens 4/10/07 10:47 >>>
The Queen v Price (1884) 12 QBD 247
It is not a crime, per se, to burn a body unless it amounts to a public nuisance.
"Though I think that to burn a dead body decently and inoffensively is not criminal, it is obvious that if it is done in such a manner as to be offensive to others it is a nuisance of an aggravated kind. A common nuisance is an act which obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects. To burn a dead body in such a place and such a manner as to annoy persons passing along public roads or other places where they have a right to go is beyond all doubt a nuisance, as nothing more offensive both to sight and to smell can be imagined. The depositions in this case do not state very distinctly the nature and situation of the place where this act was done, but if you think upon inquiry that there is evidence of its having been done in such a situation and manner as to be offensive to any considerable number of persons, you should find a true bill."
per Stephen J
However, I wonder whether this limitation is necessarily true in relation to a claim based upon a tort? If I am subject to the appalling smell of a burning human flesh as I pass along the highway, but the defendant is lucky that nobody else passes along the road at the same time before the wind changes, can it be the case that I have no claim because the body burner got lucky as to how many people drove along the road with their windows down at that time? Put another way, I am uncertain as to how safe it is to transpose rules from public nuisance as a crime into its role as a tort.
I can see how the potential, ex ante, of a wide class of persons being adversely affected by an activity, as opposed to only one or a limited number, is potentially relevant to whether the defendant is at fault for the purposes of public nuisance. My worry is why it should be relevant ex post.