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Published online by Cambridge University Press: 18 January 2021
Human remains interred in parish churchyards or in consecrated portions of local authority cemeteries are within the faculty jurisdiction of the consistory courts of the Church of England. A faculty is required for the disturbance of human remains lying within the faculty jurisdiction. This article will examine the law surrounding consecrated burial grounds in England and the disinterment of human remains therefrom and what this demonstrates about the principles of the ecclesiastical law of England relating to their protection. If ecclesiastical law provides for the protection of human remains, what is the justification for that and how adequate is the protection? The article will compare the consistory courts’ treatment of human remains with the regulation of remains outside the faculty jurisdiction, and attempt to relate canonical principles towards human remains with the legal character of consecrated ground. It will investigate whether the modern treatment of human remains is different from the treatment of remains in the past. By these comparisons I hope to better explore what justifications exist for the approach the consistory courts have taken in regulating disturbance of human remains.
1 Rugg, J, Churchyard and Cemetery: tradition and modernity in rural North Yorkshire (Manchester, 2013)Google Scholar.
2 The ecclesiastical case law on exhumation from consecrated ground has been extensively surveyed by Dr Bursell and Mr Petchey in this journal: Bursell, R, ‘Digging up exhumation’, (1998) 5 Ecc LJ 18–33Google Scholar; Petchey, P, ‘Exhumation reconsidered’, (2001) 6 Ecc LJ 122–134Google Scholar; Bursell, R, ‘Aspects of burial and exhumation’ (2017) 19 Ecc LJ 169–192Google Scholar.
3 ‘CUTHBERTUS archiepiscopus Cant. xi. ab. Augustino cum Romæ videret plures intra Civitates sepeliri, rogavit papam ut sibi liceret cœmiteria facere, quod papa annuit, reversus itaque cœmiteria ubique in Anglia fieri constituit’. These words were in the appendix to ‘the booke of Rochester a MSS’ in Sir Robert Cotton's library, according to Weever, J, Antient Funeral Monuments, of Great-Britain, Ireland, and the Islands Adjacent, With the Dissolved Monasteries Therein Contained (London, 1631), pp 8–9Google Scholar. I cannot corroborate the record any further and the apparent historical event has been repeated in numerous works since then.
4 See the brief history of the consecration of churches in K Homfray, ‘Sir Edward Coke gets it wrong? A brief history of consecration’, (2009) 11 Ecc LJ 36–50, and the response by A McGregor, ‘The legal effect of consecration of land “not belonging to the Church of England”’, (2009) 11 Ecc LJ 194–205.
5 R Horrox, The Black Death (Manchester, 1994), p 269, citing Borthwick Institute of Historical Research, York, Reg. 10, fo. 127v.
6 LexisNexis, Encyclopaedia of Forms and Precedents, vol 6(1) (2002), form 29.
7 The Archbishop of York's commission for consecration of the churchyard of the chapel of St Thomas Beverley in 1349 (see Horrox, Black Death, p 270) stipulates that ‘the burial ground of the chapel should be walled and kept for ever from any defilement’. Canon F 13(2) requires churchyards to be fenced.
8 13 Edw I cap 6(2): ‘And the King commandeth and forbiddeth that from henceforth neither fairs nor markets be kept in churchyards for the honour of the Holy Church’; 27 Hen VI cap 5 decreed that no fairs or markets were to be allowed in churchyards. 1551 5 Ed VI cap 4 banned brawling on pain of excommunication.
9 (1796) 12 Archaelogia 20n, cited in R Muncey, A History of the Consecration of Churches and Churchyards (Cambridge, 1930), p 128.
10 LexisNexis, Encyclopaedia of Forms and Precedents, vol 6(1) (2002), form 29. The plan is subsequently deposited in the diocesan registry. The post-Reformation form of consecration of churches relies much on that formulated by Bishop Andrewes in 1620. The rite of consecration could be controversial to those who considered the ceremony superstitious. Archbishop Laud's consecration of St Katharine Cree in 1631, which was noted as being particularly elaborate, was met with approbation: see Muncey, History of the Consecration of Churches and Churchyards, p 60.
11 This is my supposition as, in times of plague or other high mortality, the timely presence of a bishop to consecrate a new burial ground could not be guaranteed.
12 The common view being that, as an extension to an existing consecrated churchyard, the physical act had already been done. There was no more need for the bishop's presence than there would be for the consecration of a church extension. See the debate in the House of Lords, HL Deb 24 May 1867, vol 187, cols 1016–1020; HL Deb 6 June 1867, vol 187, cols 1649–1651; HL Deb 8 July 1867, vol 188, cols 1163–1167. The provision in the Consecration of Churchyards Act 1867 is now contained in section 89 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 (‘EJCCM 2018’). If the consecration is taking place otherwise than under the EJCCM 2018 (and formerly the Consecration of Churchyards Act 1867), ie does not pertain to an extension of an existing consecrated churchyard, the diocesan registrar (acting as an ecclesiastical notary) or his or her deputy or some notary public must still be present. The role performed is that of a notary, by recording and verifying the consecration.
13 As opposed to dedication, which does not have a legal effect.
14 Either under s 74 of the Mission and Pastoral Measure 2011 pursuant to pastoral scheme, or according to s 92 of the EJCCM 2018 (only applying to land not held by an ecclesiastical corporation or a diocesan board of finance, ie rare cases). The old law from Campbell v Paddington Parishioners (1852) 2 Rob Ecc 558 that nothing save an Act of Parliament can divest consecrated ground of its character has been superseded by this legislation. Consecrated land can be appropriated under the law of adverse possession, but this does not divest the land of its consecrated status or oust the jurisdiction of the consistory court.
15 Handyside's Case (1749) 2 East PC 652; R v Sharpe (1857) 26 LJMC 47 at 48 per Erle J. R v Kelly  3 All ER 741; AB v Leeds Teaching Hospital NHS Trust  EWHC 644 (QB).
16 2 Bl Com 508; Williams v Williams (1882) 20 Ch D 659; Rees v Hughes  KB 517 at 524. Public Health (Control of Disease) Act 1984 s 46(1).
17 Canon B 38(2).
18 Foster v Dodd (1867) LR 3 QB 67.
19 Coke (3 Co. Inst. 203): ‘burial of the Cadaver (that is, caro data vermibus) is nullius in bonis and belongs to Ecclesiastical cognisance’, cited in S Gallagher, ‘Protecting the dead: exhumation and the Ministry of Justice’, (2008) Web Journal of Current Legal Issues issue 5, <http://www.bailii.org/uk/other/journals/WebJCLI/2008/issue5/gallagher5.html>, accessed 9 October 2020.
20 At the same time the Act made it a requirement to obtain a licence from the secretary of state for disinterment in other burial grounds: Burial Act 1857, s 25.
21 Ministry of Justice, ‘Burial law and policy in the 21st Century: the way forward – Government response to consultation’, June 2007, <https://www.iccm-uk.com/iccm/wp-content/uploads/2020/09/iccm_burial-law-policy-MoJ-2.pdf>, accessed 9 October 2020.
22 Revised Canons Ecclesiastical, seventh edition, <https://www.churchofengland.org/more/policy-and-thinking/canons-church-england/canons-7th-edition>, accessed 9 October 2020.
23 Re Atkins  1 All ER 14.
24 Ibid, at para 17, quoting C Wheatly A Rational Illustration of the Book of Common Prayer (Cambridge, 1858), p 586: ‘The phrase of commit his body to the ground implies that we deliver it into safe custody and into such hands as will safely restore it again. We do not cast it away as a lost and perished carcass; but carefully lay it in the ground, as having in it a seed of eternity and in sure and certain hope of the resurrection to eternal life’ (emphasis in original).
25 Re Matheson  1 WLR 1246.
26 Re Blagdon Cemetery  Fam 299.
27 Re St Mark Worsley (2007) 9 Ecc LJ 147–148.
28 Re St Mary Sledmere (2007) 9 Ecc LJ 343; Re St Mary the Virgin Hurley  1 WLR 831.
29 Re Blackley Cemetery (2008) 10 Ecc LJ 251; Re St Nicholas Sevenoaks  1 WLR 1011; Re Holy Trinity Bosham  1 WLR 833.
30 The Court of Arches were prepared to permit burial in the unconsecrated land at a local authority cemetery in Re Blagdon Cemetery and it is not unusual for an ecclesiastical court to permit this. In that case the court commented that, while reburial in unconsecrated ground had in former times been refused by the ecclesiastical courts, the particular objection was removed when unconsecrated land became subject to statutory control on the introduction of a licensing system under s 25 of the Burial Act 1857: see Re Blagdon Cemetery  Fam 299 at paras 13–14.
31 Town and Country Planning Act 1990, ss 239–240; Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950, SI 1950/792. Infratstructure statues include, eg, the High Speed Rail (London–West Midlands) Act 2017, ss 27–28 and Sch 20.
32 Eg Diocese of Norwich Churchyard Regulations 2016, para 12(1).
33 EJCCM 2018, s 88(2), deriving from the Church of England (Miscellaneous Provisions) Measure 1976, s 6(1) (now repealed). For a discussion on the legality of scattering ashes, see Bursell, R, ‘Digging up exhumation’ (1998) 5 Ecc LJ 18–33Google Scholar; Re John Stocks deceased (1996) 4 Ecc LJ 697.
34 The disposal of remains at sea is also regulated by the Food and Environment Protection Act 1985, by which the executors of the deceased must obtain a licence.
35 Re Pope (1851) 15 Jur 614, quoted in Re Atkins, para 17.
36 Cemeteries in the Roman Catholic Diocese of Brooklyn require that ‘(1) No disinterment or removal within the cemetery shall be allowed except for good reason and then with the written approval of the Cemetery Authorities, in their sole and absolute discretion, and the written authorization of the plotholder(s) or any other necessary person all in accordance with any civil and Church laws. (2) No disinterment or removal from the cemetery shall be allowed except for good reason and then upon order of a court of competent jurisdiction in accordance with applicable civil and Church laws’, but there is no further elaboration on what those church or civil laws might be. See ‘General rules and regulations’, s 5, <http://www.ccbklyn.org/information-news/general-rules-and-regulations>, accessed 10 April 2020. The Associated Catholic Cemeteries of the Archdiocese of Seattle require permission of the management and written authority of the ‘(plot) holder and nearest of kin’; and the management may at its discretion request the consent of the ordinary. See Rules and Regulations of Associated Catholic Cemeteries, 1 January 1999, para 5(60), <http://www.mycatholiccemetery.org/wp-content/uploads/2018/10/Rules-Regulations.pdf>, accessed 10 April 2020. St Joseph Cemetery, Inez, Texas, requires the permission of the management, plot holder, next of kin and obedience to the ‘proper legal procedure’: ‘St. Joseph Church Cemetery Rules & Regulations’, s 5E, <d2y1pz2y630308.cloudfront.net/6756/documents/2017/5/St.%20Josephs%20Cemetery%20Rules%20%20Regulations-%20Inez%20TX.pdf>, accessed 10 April 2020.
37 See Dödsbo v Sweden (2007) 45 EHRR 22.
38 Re Talbot  P 1.
39 Burial Laws Amendment Act 1880, s 8.
40 Town and Country Planning Act 1990, ss 238–240; Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950, SI 1950/792.
41 Burial Laws Amendment Act 1880, ss 1, 6 and 12.
42 Department for Constitutional Affairs, Guide for Burial Ground Managers, November 2005, <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/326370/burial-ground-managers.pdf>, accessed 9 October 2020.
43 Gallagher, ‘Protecting the dead’. Gallagher was writing in 2008; email would now be a more conventional way of communicating quickly.
44 Re St Nicholas, Sevenoaks at para 24: ‘In theological terms “there may be every justification arguing that a corpse has no more eternal significance than an empty shell, but it continues to be the vestiges of a once loved and loving human being”’, citing the Church Archaeology Human Remains Working Group report (produced jointly by English Heritage and the Church of England and released for consultation in April 2004), para 153, now revised as Advisory Panel on the Archaeology of Burials in England, Guidance for Best Practice for the Treatment of Human Remains Excavated from Christian Burial Grounds in England, second edition, 2017, para 151, <https://www.archaeologyuk.org/apabe/pdf/APABE_ToHREfCBG_FINAL_WEB.pdf>, accessed 9 October 2020. The court then proceeded to comment that ‘Consistent with this approach is the essential requirement that skeletons made available for investigation are treated with respect and reburied in a dignified manner at the conclusion the investigation. It has been said that “A society that cares for the dead demonstrates that it values life”: see report, para 153.’
45 Re Blagdon Cemetery  Fam 299 at paras 26 and 27.
46 Advisory Panel on the Archaeology of Burials in England, Guidance for Best Practice for Treatment of Human Remains, para 80. These holdings areas are termed ‘church archives of human remains’, which, in the words of the report, ‘would simultaneously satisfy desires for remains to be returned to consecrated ground but at the same time would, if suitable environmental controls were in place, ensure their physical integrity and continued availability to legitimate researchers’.
47 The Legal Advisory Commission of the General Synod of the Church of England has issued best practice guidance that parishes should consider the sustainable use of churchyards, normally by the use of the practice known as ‘lift-and-deepen’, whereby old remains are disinterred under faculty and buried at a lower depth. Allied to this are the use of areas for the interment of cremated remains, where the best practice is to inter remains in a biodegradable container or straight into the ground, and the use of commemorative tablets as a matter for the faculty to determine.
48 Gilbert v Buzzard (1820) 3 Phill Ecc 335.
49 Planning Permission of Sandwell Metropolitan Borough Council, ref DC/16/60149, 6 March 2017. Resomation, an alkaline hydrolysis business, announced on 24 March 2020 that it had obtained from Yorkshire Water a consent to discharge liquid waste from alkaline hydrolysis (but not for an existing facility). See <resomation.com/news/successful-study-of-water-cremation-completed-for-yorkshire-water>, accessed 10 April 2020.
50 See the commentary on this in Re JS (Disposal of a Body)  EWHC 2859 (Fam), which dealt with a 14-year-old girl who was mortally ill from a rare form of cancer.
51 Namely the pastoral needs of relatives and the potential for Church development of the churchyard.
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