This commentary considers the case of Brennan, in which surviving family members successfully brought a Human Rights Act 1998 (HRA) claim against a hospital and a council for the way in which they both treated a body post-mortem. Their failure to freeze it led to such a state of decomposition that it was unfit for viewing. The family argued this constituted an unjustified interference with their rights to family and private life. After a review of Strasbourg case law, the Leeds County Court found for them and awarded them damages under section 8 of the HRA. This commentary evaluates both the Strasbourg law and the way it was utilised and interpreted domestically. While agreeing with the outcome, the authors conclude that the Strasbourg case law does not line up four square—and instead they suggest that a different approach, accepting the legitimacy of a claim based on ‘memory-securing’, is warranted on the facts. The commentary also questions whether the court was correct in seeing the rights reposed in the surviving family, and offers the view that greater coherence to the law might be achieved if we conceive of the survivors as the vehicle for the exercise of rights by the deceased.
- Article 8
- private and family life