Rev'd Professor Helen Hall, Professor at NLS https://www.ntu.ac.uk/staff-profiles/law/helen-hall
As September draws to a close pumpkin spice has infiltrated everything from coffee to candles, and the “Spooky Season” is upon us. Halloween derives its name from the Feast of All Hallows, and ushers in a time in the Christian liturgical year when the dead are remembered. The celebration of All Saints (Hallows) is followed immediately by the commemoration of All Souls, and the intimate connection between the living and the departed is celebrated. It is also beyond doubt that ancient pagan communities in the British Isles, and northern Europe more generally, had festivals linked to the dead at this time of year.
There is intense debate about the extent to which modern celebrations can claim direct descent from either or both of these cultural streams, but for many purposes, it really does not matter. As historian Ronald Hutton observes, even though specific traditions might only date back for a relatively short period of time, when these are linked to the turning of the seasons and universal human experiences within a given environment, they are fulfilling the same function and expressing the same needs as ancient rites inspired by the same realities. Reflecting on morality, death and the hope of rebirth is a natural instinct as the nights draw in, the sun’s light and warmth withdraws, and once green leaves wither into gold and swirl in the gathering wind. Inevitably, personal responses are dependent on our cultural context, and whatever spiritual or philosophical beliefs we might happen to have, but navigating our relationship with death and the dead is unavoidable.
Even lawyers cannot escape the question of the dead and personhood. How does the law treat former members of the earthly human community? There are of course very specific questions raised in relation to the physical remains of the departed, now dealt with mainly by the Human Tissue Act 2004 (at least for those who have died recently). Yet there are also issues arising from the personality and dignity of the individual, derived from their identity, rather than their body.
Even for those who believe that individual existence ends with death, extinction is not erasure. A life has been lived, and has left an indelible mark on the world, and on the experience and perceptions of others. Of course, for those who do believe in an afterlife, there may be a sense that the departed have ongoing perceptions and even interests. Either way, personal identity continues after death, and the legal system needs to decide how to manage this. In England and Wales, the outworkings of this problem depend upon the context.
In the law of tort, generally speaking, the dead can sue and be sued. This arises partly out of pragmatic necessity, and it is not a coincidence that the modern law derives largely from the advent of the motor car. By the 1930s, it was becoming worryingly common for incompetent and/or reckless drivers to leave plaintiffs with catastrophic injuries, while perishing in the same accident. Parliament recognised that something needed to be done, and the underlying public policy considerations have changed little in the intervening years.
If an individual causes third parties serious loss, it is undesirable to leave their victims without access to compensation. Furthermore, there is sometimes a symbolic dimension to claims against the dead. If a person caused harm to others through deliberate wrongdoing, or even gross carelessness, a public attribution of blame has significance for those who have suffered, and indeed the wider community.
This of course begs the question about criminal liability for the dead. In recent years, horrific revelations following the death of celebrities like Jimmy Saville have made this issue far from hypothetical. In the case of Saville, there was little doubt that he had used his wealth and influence to evade prosecution, and further traumatise and intimidate the people whom he abused. Even though he had passed beyond the realms of earthly justice by the time that a tsunami of damning evidence had come to light, there is the possibility that a trial would have brought vindication and closure.
At present, there is no scope for a posthumous prosecution in this jurisdiction, and there are some cogent reasons for this. When there is no possibility of imposing a meaningful sentence, and no risk of a perpetrator inflicting further harm, could the benefits of a trial ever justify the burden on the public purse? Furthermore, the accused would by definition be in no position to assist with their own defence, raising questions about the fairness of such a proceeding. Would it be acceptable to permanently taint, or even destroy, the legacy of a person without due process? If the possibility of trial after death were opened up, it is possible to imagine campaigns for action in cases far less extreme and clear cut than that of Saville.
This issue of reputational justice for the dead raises another point: the availability of defamation for the dead. At present, it is axiomatic the departed cannot bring claims rooted in liable or slander. This is a position that has been endorsed by the European Court of Human Rights in Strasburg, which has indicated that neither the Article 8 rights of the departed, nor those of their loved ones, demand that such actions be allowed. The Convention guarantee of the right to a private and family life does not extend beyond the grave. It is fair to note that the boundaries of defamation as an action are carefully policed in any liberal democratic context, given its implications for freedom of expression. Given the very delicate balance of conflicting interests even where a living claimant is involved, the chances of it ever being extended to the departed are slim.
This stance is not without cost. It means that it is open season for professional journalists and posters on social media to attack the memory of the dead with immunity, often causing immense pain to their friends and families. The dead are open to exploitation and comment. At present, one of the team who found the Everest pioneer George Mallory in 1999, and flashed photographs of his semi-naked body around the world (without giving his family prior warning) is currently attracting followers for his You Tube channel with speculation about whether a medium successfully made contact with his spirit. To add insult to injury, the ghost is alleged to have declared that climbing Everest “can’t be done”, a claim which seems wildly implausible, bearing in mind his character. Probably, a century after Mallory’s death, it would be inappropriate for the law to intervene, and such actions can be left subject to criticism from those who disapprove.
However, what about a similar chain of events within ten years of a person’s death? It is not per se illegal to claim to have made contact with a dead person, and to relay what they allegedly have to say. If no money is being demanded, little redress can be found from criminal or consumer protection law. Such situations do raise delicate issues about freedom of belief and expression on the one hand, and the limits of acceptable communication on the other. Individuals are sometimes convicted for generally offensive statements, without a specific human target, for example under the s127 Communications Act 2003. Whether this is desirable or not in light of civil liberties is an open debate, but it is possible to imagine and action being brought in an extreme case.
Where are how we draw lines about our treatment of the dead as individual persons is a complex question, and far more nuanced than it might first appear. The reality is that legally as well spiritually, the human community has blurred lines around the edges, and in at least some circumstances, personal identity and action continues beyond the mortal coil.
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“How Mark Twain’s Ghost Almost Set Off the Copyright Battle of the Century” (2 March 2016) https://www.splinter.com/how-mark-twains-ghost-almost-set-off-the-copyright-batt-1793855099
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