Ecclesiastical Burial: Disposal, Decency and Disturbance
by Philip Jones
This is an account of ecclesiastical law’s treatment of human remains. It does not address all the legal rights, duties and functions connected with ecclesiastical burial.
There is a helpful summary of ecclesiastical burial rights in the case of West Pennard Churchyard (1991) 4 All England Reports 124:
(1) the common law right of burial in the churchyard (or other ecclesiastical burial ground) extends only to resident parishioners, and to strangers who die in the parish.
(2) The common law right is extended by the Miscellaneous Provisions Measure 1976 to persons on the parish electoral roll (s.6(1)).
(3) Anyone else seeking burial in the churchyard may obtain permission from the incumbent, under s.6(2) of the 1976 Measure. S.6(2) provides that the incumbent’s discretion is subject to ‘general guidance given by the parochial church council’ (PCC).
(4) A person may acquire a right of burial by obtaining a reservation faculty. This is ‘wholly in the judicial discretion of the [consistory] court’ (p.126). Such a faculty may, exceptionally, be granted to a non-parishioner.
Rights of burial are obviously subject to the availability of space in the churchyard. In West Pennard, the consistory court stated that ‘no churchyard is full and ripe for closure until all parts of it in which reburial is possible have been buried over again at least once’.
The Miscellaneous Provisions Measure 1992 confirms that a person who has a right of burial in a churchyard has the same right to burial of his cremated remains (s.3(1)). It further provides that, although the common law right applies only to open churchyards, the burial of cremated ashes in a closed churchyard remains permissible under the authority of a faculty. A faculty may also permit the designation of a particular area within a closed churchyard for the burial of cremated remains generally.
Apart from these general provisions, it is possible that a person may enjoy a special statutory right of burial. For example, the Consecration of Churchyards Act 1867 empowers a donor of land which is added to a churchyard to reserve a right of burial over part of that land, not to exceed one-sixth of the total (s.9). Any such reservation must be recorded on the instrument of consecration.
There is a common law right to burial in the churchyard, but no legal duty to be buried there. Halsbury’s Laws states that ‘There is a duty to dispose decently of a dead body on the personal representatives or person lawfully in possession of the corpse’ (5th edition, vol 24 title Cremation and Burial, para 1103), but this does not require an ecclesiastical burial.
Halsbury’s Laws also affirms that ‘The general rule of common law still stands, that there is no property in a dead body’ (para 1105). This rule applies to bodies buried on ecclesiastical premises. The duty to dispose of the body gives to those responsible a right of possession of the corpse. Once the corpse has been buried, however, this right of possession ceases, as the duty has been completed.
In Burial Board of St. Margaret’s Rochester v Thompson (1871) 40 Law Journal New Series 213, the Court of Common Pleas explained that ‘the [common] law [of ecclesiastical burial] was plain: dead Christian parishioners had a right
 to have burial within the consecrated burial-yard of the parish and
 to have the ordinary [burial] service of the Church performed over them’ (p.217).
The ecclesiastical duty was divided between the clergyman and the sexton (or verger): ‘the clergyman had to perform the religious part of the ceremony, the sexton the ministerial [part]’. The ‘religious’ duty was to read the burial service. The ‘ministerial’ duty was twofold, to (1) dig the grave and (2) toll the bell.
Thus common law conferred on the parishioner the right both to burial and to a burial service. The only distinction was that the work was divided between two different ecclesiastical persons.
However, it was not possible to choose burial but reject a burial service (or vice versa). Canon 68 of 1603 made clear that burial and the burial service had to be performed together. The Court of the Arches added that ‘our Church knows no such indecency as putting a body in the consecrated ground without service being at the same time performed’ (Kemp v Wickes (1809) 161 English Reports 1320, at p.1330). In R v Coleridge (1819) 161 English Reports 1343, Chief Justice Abbott confirmed the secular courts’ acceptance that ‘the mode of burial is of ecclesiastical cognisance alone’.
The inseparability of the burial from the Anglican burial rite caused friction between the Established Church and other denominations, who wished to bury their departed adherents according to their own rites. The ‘churchyards controversy’ was particularly acute in Wales. The Welsh Church Act 1914 originally provided for the secularisation of all churchyards, by transferring them into the ownership and control of the local authorities (though many of them were later handed back to the Church, under the Welsh Church (Burial Grounds) Act 1945, because the local authorities could not afford to maintain them).
The older ecclesiastical law only permitted burial rites in the churchyard or other ecclesiastical burial ground. As churchyards became closed to further burials in the 19th century, municipal cemeteries were opened. Cemeteries may include a part specially consecrated for Anglican use. The consecrated part of a cemetery is treated as an ecclesiastical burial ground.
However, the link between ecclesiastical burial and ecclesiastical (or consecrated) ground has been weakened in modern times. The Burial Laws Amendment Act 1880 eased the sectarian tensions by permitting burial of non-Anglicans in a churchyard ‘either without any religious service, or with [a] Christian and orderly service at the grave’ (s.6). Therefore non-Christian religious services are still not permitted.
Shortage of consecrated burial space may also necessitate ecclesiastical burial in unconsecrated ground. The 1880 Act makes clear that burial rites may be used in unconsecrated ground (s.12). Canon B38(5) of the revised canons provides that, on such occasions, the officiating minister must first bless the unconsecrated grave.
Crematoria are unconsecrated, of course, and often a considerable distance from the church and churchyard. Canon B38(4) therefore provides that, in cremations, ‘the burial service may precede, accompany or follow the cremation, and may be held either in the church or at the crematorium’.
Canon B38(4) further provides that cremated ashes ‘should be interred or deposited, by a minister, in consecrated ground’. Of course, the Church is not in a position to enforce this latter provision, since the minister cannot have possession or control of the ashes at the crematorium. The deceased person’s family may prefer an unhallowed destination for the ashes (e.g a vase on the living room mantelpiece, or scattering in some place of sentimental importance).
Phillimore’s Ecclesiastical Law suggests that ‘[the] practice of praying for the dead seems to have been the true origin of churchyards’ (2nd ed, 1895, p.658). By burying the corpses of deceased parishioners in the very centre of the parish, in and around the parish church, rather than in some discreet out of the way place, the mediaeval Catholic Church emphasised the communion between the living and the dead, the Church on earth and the metaphysical Church. As Phillimore implies, it encouraged the parishioners to pray for the souls of the departed, and, of course, to remember their own mortality. The old rule of canon law which denied burial in consecrated ground to the unbaptised, excommunicates and suicides made the point that such persons were outside the communion of the Church.
In Blagdon Cemetery (2002) 4 All England Reports 482 the Court of the Arches made an unconvincing attempt to update the theological position. It referred to ‘The general presumption of permanence [of burial] … [which] originates in the Christian theology of burial. This theology underlies the consecration of land … for burials and … the [burial] rites of the Church of England …’ (pp.486-7). For this reason ‘It is … very important that cemetery managers and funeral directors give a simple explanation to the bereaved about the difference between consecrated land (to which the theology of burial has application) and unconsecrated land’ (pp.487-8).
Yet this alleged ‘Christian theology’, with its assertion of a link between consecration and burial rites, is hard to reconcile with the modern ecclesiastical law discussed above, which has weakened the link between consecration and burial. It is also hard to see how human remains in an unconsecrated municipal cemetery are treated any differently from those in a churchyard (let alone the consecrated part of the same municipal cemetery). How is burial any less ‘permanent’ in unconsecrated ground than in consecrated ground?
The only principle apparent from the modern ecclesiastical law is that of decent treatment of the dead. Decency is, at least to some extent, a matter of cultural value judgement. Cremation was a controversial practice at first. The Cremation Act 1902 gave clergy the right to refuse to officiate at crematoria (s.11). This provision was not repealed until as late as 1992, by the Miscellaneous Provisions Measure of that year. However, Canon B38(3) now confirms that ‘cremation of a dead body is lawful in connection with Christian burial’.
The case of Caistor-on-Sea (1958) 1 Weekly Law Reports 309 concerned a proposal to reinter about 80 unidentifiable dead bodies in a communal grave. The chancellor refused to grant a faculty for this work. However, he noted that ‘Although communal burial may seem distasteful … yet that practice has long been followed, particularly in cases of natural disaster: it followed often … after heavy bombing raids during the war …’ (p.311).
Modern legislation makes clear that decent treatment of the dead is not inconsistent with public amenity. Thus the Open Spaces Act 1906 empowers a local authority to hold a closed burial ground, including a closed churchyard, for ‘the enjoyment thereof by the public’ as an open space (s.10). Sporting activities are allowed on an open space, subject to faculty. It may also be permissible to use an open space as a carpark.
The Disused Burial Grounds Act 1884 permits building on a closed churchyard, but only for the purpose of ‘enlarging’ an adjoining church or chapel, and subject to faculty (s.3). The Mission and Pastoral Measure 2011 provides that a statutory scheme under the Measure (not a faculty) may authorise building on burial grounds, but only if there have been no burials in the previous 50 years, or, if there have been more recent burials, no relative or personal representative objects (s.44(4)). A very recent change in the law means that a faculty can now be granted for building on a disused burial ground, subject to the same conditions as for a statutory scheme, even if the building does not constitute an enlargement of the church (Care of Churches and Ecclesiastical Jurisdiction Measure 1991, s.18A, which was inserted by an Amendment Measure of 2015, s.4).
The burial of human remains is a different subject from the building of gravestones and other funerary monuments. Gravestones are not inseparable from the remains that they commemorate. The court observed in Holy Trinity Church, Freckleton (1995) 3 Weekly Law Reports 299 that ‘The right to be buried … does not include a right to erect a memorial’ (p.1590). In St. James, Heywood (1982) 1 Weekly Law Reports 1289, the chancellor allowed that ‘gravestones do have a very special significance by being placed above burial places of those commemorated’ (p.1292). However, he maintained that ‘this significance … probably is largely emotional’. He pointed out that it is not uncommon for memorials to be erected inside a church to commemorate a person buried outside it.
Decent treatment of the dead should not be confused with delicacy to family feelings. If a gravestone or monument is to be moved, this may cause distress to the deceased’s relatives (and for wholly understandable reasons), but nevertheless will not engage the principle of decent treatment of the deceased’s remains.
Gravestones and monuments, unlike remains, are property and therefore capable of legal ownership.
The account of ecclesiastical burial thus far suggests two points concerning the disturbance or exhumation of human remains:
(1) if there is no property in a dead body, it follows that relatives can have no right either to demand the exhumation of the body, or to veto its exhumation. The body does not belong to them
(2) if exhumation is permitted too readily or casually, this is inconsistent with the principle of decent treatment of the dead.
In Blagdon Cemetery (2002) 4 All England Reports 482 the Court of the Arches permitted the exhumation of a body for reburial in an unconsecrated municipal cemetery. This decision was consistent with the modern ecclesiastical law discussed earlier (though it was inconsistent with the Court’s own theological musings on burial in consecrated ground). Ecclesiastical burial is no longer confined to consecrated ground. It is, however, necessary for the ecclesiastical court to be satisfied that the remains will be decently reinterred and cared for elsewhere.
The Court made the sensible point that, if there is a proposal to remove a body to the unconsecrated part of a local authority cemetery ‘it is reasonable for the consistory court to conclude … that the new grave will be cared for in a seemly manner and will be protected in this sense [of being cared for]’, though ‘Reinterment in unconsecrated ground which is not a local authority cemetery is a different matter. No general inference of … suitability … can properly be drawn’ (p.486).
Cremated remains may be buried in caskets, and will therefore be capable of exhumation (Christ Church, Alsager (1999) Family 142).
Ecclesiastical exhumation cases may be divided into three categories
(2) private (family)
(3) scientific interest.
(1) Public. A reordering or development of a churchyard may well involve disturbance of remains buried therein. Like other dealings with churches and churchyards, this is a matter for the faculty jurisdiction, though subject to s.3 of the Disused Burial Grounds Act 1884 mentioned earlier.
The Mission and Pastoral Measure 2011 provides for the disposal of human remains where a church is ‘closed for regular public worship’ (i.e made redundant) and where the building or land is given over to secular use (at s.78 and schedule 6). The ecclesiastical court is not involved in this procedure, and no faculty is required. Instead the landowner (i.e the owner/lessee/licensee) of the land or building must advertise its intention to dispose of the remains before doing so. Personal representatives and relatives must also be informed, if the interments are less than 25 years old. Personal representatives and relatives (or the War Graves Commission, if appropriate) may claim the remains for reinterment elsewhere, or for cremation. Otherwise the landowner must remove the remains and reinter them in land indicated by the bishop as ‘reasonably available’. If the bishop gives no direction, the landowner/lessee must either reinter the remains in another burial ground, or cremate them. All exhumations, reinterments and cremations are subject to any general directions given by the Secretary of State.
(2) Private faculties are often sought by relatives to remove a loved one’s remains to another location. One difference between public and private exhumation cases is that, in the former, exhumation may cause distress if it is ordered, while in the latter, distress is likely if exhumation is refused.
Mistake is an obvious reason for ordering private exhumation. If those involved in the burial were unaware of something which, had it been known at the time, would have caused them to dispose of the deceased differently, then the ecclesiastical court may order exhumation, rather as the High Court may set aside the action of a trustee for mistake.
Mark Hill refers to two unpleasant cases where exhumation was granted after an extra-marital affair and sexual abuse of a child, respectively, came to light after the funerals of the perpetrators (Ecclesiastical Law, 3rd edition (2007), p.268n). When they discovered the truth, the relatives understandably did not care to be reminded of the perpetrators’ existence, nor to have the remains buried near those of other family members.
In Watson v Howard (also known as St Luke’s, Holbeach Hurn) (1990) 2 All England Reports 749, the consistory court ordered the exhumation of Mrs Howard’s remains from a plot that had been reserved, by faculty, to Mrs Watson. The bereaved family had not been aware of Mrs Watson’s faculty. However, Mrs Watson insisted on her legal priority, so Mrs Howard had to be moved elsewhere.
The Court of the Arches in Blagdon was concerned that private exhumations were being permitted too readily. Although it did not limit exhumation to cases of mistake, it held that ‘a faculty for [private] exhumation will only be exceptionally granted’ (p.389). It concluded sympathetically that the case before it was such an exception. The deceased had died suddenly, at a young age. He had expressed no wish as to his place of burial. There was no link between the deceased and the community where he was buried. Moreover, his parents’ itinerant working circumstances had prevented them acquiring a permanent home at the time of his death.
Apart from this, the Court suggested that exhumation might be ordered if the medical condition of a bereaved relative demands it, though ‘any medical reasons … would have to be very powerful indeed … serious psychiatric or psychological problems … [linked to] the question of location of the grave …’ (p.490). However, exhumation is unlikely to be permitted merely on account of a relative’s ‘advancing years and deteriorating health and change of place of residence’ (p.489).
(3) Scientific Interest. Exhumations may be sought so that the corpse can be examined for reasons of historical or other scientific interest. The leading case in this category is Holy Trinity, Bosham (2004) 2 Weekly Law Reports 833, which concerned remains alleged to be those of Harold II, the last Saxon King of England. The case suggests that two criteria must be satisfied for a faculty to be granted:
(1) the subject of the investigation must be ‘a matter of great national, historical or other importance’ (p.845) and
(2) the investigation itself must hold out ‘the prospect of obtaining a meaningful result’ (p.846).
A faculty was refused. The investigation of King Harold’s alleged remains satisfied criterion (1), but not (2). The court accepted evidence that there would be no scientific means of establishing the identity of the remains, due to the passage of time.
The consistory court’s decision on King Harold was followed by the Court of the Arches in the St. Nicholas, Sevenoaks (2005) 1 Weekly Law Reports 1011, in which the Court refused to permit DNA testing on the remains of a man whose descendants believed him to be an illegitimate grandson of Queen Victoria. However, exhumation was permitted in St. Mary Sledmere (2007) 1 Weekly Law Reports 1538, in favour of a professor of virology who wished to examine two bodies to carry out research into the influenza virus.
The court in Sledmere added a slight twist to the two Bosham criteria: ‘if public benefit is only in terms of increased historical knowledge … a high likelihood of success [is] required’ (p.1542). However, if the case concerns ‘advances in treatment of dangerous diseases, then … an uncertain chance of success may suffice’. In other words, the greater the importance of the investigation (criterion (1)) the easier it will be to satisfy criterion (2). Medicine is more important than history.