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Exhumation Reconsidered

Published online by Cambridge University Press:  31 July 2008

Philip Petchey
Philip Petchey
Affiliation:
Barrister, and Deputy Chancellor of the Diocese of Southwark
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In an article in this journal published in 1998 entitled ‘Digging Up Exhumation’, Rupert Bursell, Chancellor of the Dioceses of Durham and St Albans, surveyed the then existing case law on exhumation and identified divergencies of approach between the cases. He concluded: ‘A definitive decision from the Court of Arches and Provincial Court may, therefore, seem to be called for […]’. Shortly afterwards the Chancery Court of York had occasion to consider the matter in Re Christ Church, Alsager. This article considers that case as well as two cases subsequent to it where the impact of Article 9 of the European Convention on Human Rights has fallen to be considered.

Type
Articles
Information
Ecclesiastical Law Journal , Volume 6 , Issue 29 , July 2001 , pp. 122 - 134
Copyright
Copyright © Ecclesiastical Law Society 2001

References

1 (1998)5 Ecc LJ 18.

2 [1999] Fam 142. The Court comprised Sir John Owen (Auditor) and Chancellors Coningsby and Bursell. Thus Bursell Ch, had the opportunity of considering in a judicial capacity the matters which he had canvassed in yhis article in this journal. The case will hereafter be referred to as Alsager.

3 The court had to decide as a preliminary issue whether it had power to decide the case on the basis of written representations.

4 This is a matter which might have been clarified had there been a hearing.

5 3 September 1997 (unreported).

6 See Canon 1176(3): ‘The Church earnestly recommends that the pious custom of burial be retained; but does not forbid cremation, unless this is chosen for reasons which are contrary to Christian teaching.’ In fact, cremation is not infrequent in the Roman Catholic community in England and Wales. Note, however, that until 1963 Roman Catholic canon law did prohibit cremation, and this no doubt explains Mr Davies's mistake.

7 At p 150D the appeal court refers to Chancellor Lomas's judgment seeming to stress some matters which we do not find helpful. It may be that this is one aspect of the matter which they had in mind.

8 This is recorded in the unreported judgment of Chancellor Lomas.

9 At 146G.

10 An interesting case to be considered in this context is Re Talbot [1901] P1 where a faculty was granted 110 years after burial. One cannot help thinking that after the passage of that amount of time—which would necessarily have involved the death of every person who knew the deceased—made it more likely that the petition would be successful. Of course there may not in the circumstances be cogent reasons justifying exhumation: Re Talbot itself concerned a petition for the removal the remains of a principal of a Roman Catholic seminary from a cemetery in London to the precincts of the college's current premises. On any view this was an unusual case, as was Re St Mary the Virgin, Hurley [2001] WLR 831, 6 Ecc LJ 166.Google Scholar This concerned a petition for the exhumation of the remains of a Brazilian patriot and their reburial in Brazil. The petition was made more than 175 years after the original interment of the remains. Following Alsager, Boydell Ch held that the length of time since interment counted against exhumation. However, this factor was outweighed by the special circumstances of the case in which the principle of the comity of nations played a part (the petitioner was the Brazilian Ambassador). Although the decision is (it is submitted) eminently justifiable, cases of this type—which at rootare similar to the ‘portable remains’ cases—are not altogether happy exceptions to the Alsager principle.

11 A licence is not required if the remains are removed from one consecrated place of burial to another by faculty: see section 25 of the Burial Act 1857.

12 (2000) 6 Ecc LJ 85.

13 At 149G. The phrase ‘municipal cemetery’ is probably used to indicate any large burial ground which is not in the vicinity of a church. The idea is that in these circumstances, where there is not a congregation worshipping nearby and there are unlikely to be any other near neighbours, there will not be any sensibilities to be affected. If this analysis be correct, the fact that there is little risk of affecting the sensibilities of congregations or neighbours in the context of a non-municipal cemetery is not strictly a matter persuasive of permitting a faculty but the absence of a matter arguing the other way.

14 At 150A.

15 This could mean that it is easier to obtain a faculty in respect of an interment in the consecrated part of a municipal cemetery than in respect of an interment in a churchyard. One would have thought that it is unlikely that there would be objections of this kind in many cases (but see footnote 156 below). (The facts of Re St James's Churchyard, Hampton Hill (see footnote 16 below) may be contrasted in this regard in Re St Mary the Virgin, Hurley (see footnote 10 above)).

16 It is worth considering in this context Re St James's Churchyard, Hampton Hill (28 10 1982)Google Scholar, a judgment of Chancellor Newsom, sitting as Chancellor of the Diocese of London. In that case there was opposition from a number of parishioners to the exhumation of the remains of a Canadian who had died and been buried in England in 1923. Some objectors took the view that exhumation would ‘desecrate’ the churchyard although as articulated by their representative the objection was: ‘we say that nothing should be dug up from our churchyard and removed to another places of burial’. Chancellor Newsom considered the objection as misconceived: ‘Orders for exhumation are in fact quite often made, where a family wishes to gather the remains of its deceased members in one place’. On the face of it, however, the Chancery Court would not have granted a faculty in this case. Note that Chancellor Newsom drew attention to the provisions of what is now rule 13(9)(a) of the Faculty Jurisdiction Rules 2000 (SI 2000 No 2047) whereby a chancellor can dispense with citation in an exhumation case if he is satisfied that any near relatives or others reasonable to regard as being concerned consent to the proposed faculty. This does indeed argue against undue weight being given to the concerns of congregations and neighbours.

17 [2001] Fam 33 (Chichester Consistory Court). The case will hereafter be referred to as Durrington.

18 The Human Rights Act 1998 had not come into force at the time of his judgment. However, Hill Ch considered the case on the basis that it had come into force. The interesting jurisprudential issues which arise from this approach (which have been considered in litigation in other non-ecclesiastical cases) do not concern this article.

19 At 37D

20 See Khan v United Kingdom App No 11579/85, 48 Eur Comm'n HR Dec and Rep 253 (1986); D v France App No 10180/82, 35 Eur Comm'n HR Dec and Rep 199 (1983).

21 At 37E.

22 [2001] 2 WLR 1175. The case will hereafter be referred to as Luton.

23 It is not clear when she did become so aware. In his consideration of the facts of the case against the Alsager guidelines Bursell Ch said: ‘I appreciate that the petitioner might well not have made the decisions that she did if she had not been grieving but a change of mind is not normally sufficient.’ This would suggest some degree of knowledge on her part at the time of her husband's death.

24 He considered some medical evidence as to the mental health of the petitioner but held that this did not justify allowing the petition.

25 (1994) 17 EHRR 397.

26 He did not however consider whether there might be a distinction between what Mrs Sunasky's beliefs permitted and what they required. It is possible (although surely unlikely) that, irrespective of her move to London, Mrs Sunasky would have wished for the remains of her husband to be exhumed and reinterred in unconsecrated ground.

27 The chancellor had certified, pursuant to section 10(3) of the Ecclesiastical Jurisdiction Measure 1963 that the case did not involve a question of doctrine, ritual or ceremonial. The court said of this:

‘This certification seems to us of particular importance in this case as it underlines the fact that the evidence of the archdeacon, although concerned with the theology of burial, did no more than emphasise in addition to the pastoral side of burial services that the committal of mortal remains is of substantial importance. In other words his evidence underscored the theological reason for the protective jurisdiction of ecclesiastical courts in consecrated ground.’

The fact of course that there is not a doctrinal issue in the case does not mean that there is not a theological basis for the court's concern as regards exhumation. It is nonetheless difficult to see how the certificate underscored the archdeacon's evidence in this case. What principally flowed from it surely was that there was not a doctrinal objection to what was proposed; and that, as has been seen, he did not object.

28 One should add, as practised within the Anglican Church. Practices in the rest of Europe may be different. Thus in Venice the dead are buried on the island cemetery of San Michele and remain in separate graves for a period of twelve years. Thereafter their bones are put in a common grave (see Morris, JamesVenice (2nd edition, 1983, pp 157, 291–292)).Google Scholar

29 Unreported, 3 July 2000, Southwark Consistory Court.

30 Note that in Re St. Mark, Fairfield (Worcester Consistory Court, September 1999)(5 Ecc LJ 391), Mynors Ch expanded the third guideline in Alsager along these lines.