The Burial Act 1857: A Grave Offence

by Philip Jones

‘Except … where a [dead] body is removed from 1 consecrated place of burial to another by faculty … it shall not be lawful to remove any body … which may have been interred in any place of burial, without licence [from the Secretary of State] …

‘any person who shall remove any such body or remains, contrary to this enactment … shall, on summary conviction before [the magistrates], forfeit and pay [a fine]’.  S.25 of the Burial Act 1857, the original version.

The case of Fairmile Cemetery (Oxford Consistory Court 2017) concerned a petition for a faculty to exhume a body which had mistakenly been buried in a plot that had been reserved for someone else.  (The case is discussed in a separate post, filed below.)

The judgment relates that some burial authorities correct mistakes of this kind informally, by a practice known as sliding (para 35).  Sliding  involves ‘excavating the ground so as to move the coffin sideways … but without lifting it out of the ground’ (para 34).  This is done without troubling either the ecclesiastical court or the Secretary of State for a licence.  The burial authority, literally, covering up its mistake.

The burial authority involved in the Fairmile case had initially proposed to resolve it by sliding, though an official piously assured the court that this was ‘not a practice she herself would ever resort to’ (para 35).  However, the Chancellor was clearly appalled that sliding had even been considered.  He warned sternly that ‘Should cases of this happening become known to the court, I shall instruct the Registrar to report the matter … to the Police with a view to their investigating whether a criminal offence has been committed’.

Referring to s.25 of the Burial Act 1857, the Chancellor correctly observed that ‘If [sliding] amounts to the remains being ‘removed’ it is … a criminal offence’.  But does sliding amount to removal within the meaning of s.25?

S.25 makes it an offence to remove a dead body, not to disturb one.  It could be argued that not every disturbance of a dead body amounts to removal.  The ecclesiastical exception in s.25 refers to removal ‘from 1 consecrated place of burial to another’.  A ‘consecrated place’ refers to a consecrated burial ground, not to a particular plot within the burial ground.  This may suggest that the s.25 offence applies only to the removal of a body from a burial ground altogether, not to the relocation of the body within the same burial ground.

It is also unlikely that s.25 was originally addressed to incompetent burial authorities.  It was directed rather at grave robbers, known ironically as ‘resurrection men’, one of the grimmer manifestations of the 19th century ‘Age of Science’.

In Gilbert v Buzzard (1820) 161 English Reports 1342, another burial case, the Chancellor, Sir William Scott, shuddered at the ‘ravages … to be dreaded … of the persons engaged in the employment of furnishing bodies for dissection, an employment which, whatever be its necessity, is certainly not conducted without lamentable violation of natural feelings, and occasionally of public decency itself’ (p.1347)

Grave robbers unscrupulously took advantage of the common law rule that there is no property in a dead body.  If a dead body does not belong to anyone then it cannot be stolen.  Grave robbers could therefore dig up a body and sell it on to the medical school with impunity.  S.25 was intended to prevent this.

As the Chancellor observed in Fairmile, s.25 of the 1857 Act has recently been rewritten.  The Miscellaneous Provisions Measure 2014 substituted a new version (at s.2).  The 19th century wording has been tightened up.  S.25(2) now provides that ‘It is an offence for a body or … remains which have been interred in a place of burial to be removed’ without licence or faculty.  There is no longer a reference to a body being removed from 1 place of burial to another.  Perhaps this means that ‘removed’ now refers to disturbance of the original interment, and not merely removal from the cemetery, or consecrated part of the cemetery.  The Chancellor seemed to think so.

The concern expressed in Fairmile is understandable, of course.  Decent and respectful treatment of the dead demands a high degree of formality.  Incompetent cemetery management undoubtedly risks disrespect for the dead, and distress to relatives.  However, the magistrates court may not be the best forum for remedying this.  Political and administrative means, such as scrutiny by councillors, staff disciplinary procedures and references to an ombudsman, may be more appropriate.

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