Oldham Metropolitan Borough Council & Ors v Makin & Ors

A local authority’s duty under section 46(1) of the Public Health (Control of Disease) Act 1984 arises only when it has formed the statutory view that no suitable disposal arrangements are being made otherwise than by the authority. The court cannot substitute its own view for that of the authority, although public law remedies remain available for bad faith or irrationality.

Under section 116 of the Senior Courts Act 1981, special circumstances and necessity or expedience may justify appointing an administrator for the limited purpose of disposing of a body. In an exceptional case, the court’s inherent jurisdiction over estates also permits it to direct the method of disposal. Public interest in a lawful, decent and peaceful disposal may outweigh the deceased’s wishes.

The claimants sought orders concerning the disposal of Ian Stewart-Brady’s body after his death. His executor, Robin Makin, had not arranged a disposal nearly five months later and had declined to disclose sufficient details of his intended arrangements. The proceedings concerned the statutory duty of Sefton Metropolitan Borough Council under section 46(1) of the Public Health (Control of Disease) Act 1984, the court’s power under section 116 of the Senior Courts Act 1981, the inherent jurisdiction over estates, the appropriate disposal arrangements, and whether the hearing should be private.

The central issues were whether Sefton’s statutory duty had been triggered, whether a limited administration order was necessary or expedient, and whether the court could prescribe the method of disposal.

1. Section 46 duty. The statutory trigger depended on what appeared to Sefton itself. Sefton had not formed the view that no suitable arrangements were being made otherwise than by it. The mere passage of time could not create that view contrary to the authority’s actual position. The section 46 duty was therefore not triggered, and no relief was granted under that section.
2. Section 116 appointment. The circumstances were special. They included the deceased’s notoriety, genuine public anger and distress, possible offence to victims’ families, the risk of public disorder, and the prolonged failure to secure a disposal. It was both necessary and expedient to remove the limited responsibility for disposal from the executor. Ms Stewart was appointed administrator for that purpose under section 116 of the Senior Courts Act 1981.
3. Jurisdiction to direct disposal. The court held that its inherent jurisdiction over estates was sufficiently broad to permit directions as to the method of disposal, not merely the person responsible for it. Section 116 supplied an additional jurisdictional basis.
4. Directions. The body was to be cremated by Sefton at Southport Municipal Crematorium by 27 October 2017, out of normal hours, without music, ceremony, flowers or photography. Attendance was restricted. Ms Stewart was to arrange disposal of the ashes at sea within seven days. The public interest in avoiding justified indignation and unrest outweighed the deceased’s wishes concerning music and custody of the ashes.
5. Open justice. The hearing was properly conducted in public. Privacy was justified only to the limited extent necessary to protect the body’s location and proposed disposal arrangements.

First-instance decision. No prior appellate decision is stated in the judgment.