Christ Church, Alsager (1998) 3 Weekly Law Reports 1394
Blagdon Cemetery (2002) 4 All England Reports 482
Both the cases cited above concerned requests for exhumation of deceased persons by their relatives. In Alsager, the Chancery Court (which is the provincial court of York) observed that
‘applications for exhumation are common … [but] there is no reported relevant case in either this Court or the Court of Arches’ (p.1399).
It therefore took the opportunity to issue guidance to consistory courts on how to decide exhumation cases in future.
A few years later, in Blagdon, the Court of the Arches (the provincial court of Canterbury) issued its own guidance on private exhumation, because it found the Alsager guidance unsatisfactory.
The Worshipful Chancellor Bursell QC was one of 3 judges of the Chancery Court which decided Alsager. Despite the passage of time, he has evidently not forgiven the Court of the Arches for rejecting the guidance of which he was a co-author. He took his revenge in the case of Sam Tai Chan (2016), in which he officiated as Chancellor of Durham (which is in York Province, of course).
Citing supposed ‘rules of precedent … within the 2 Provinces’ (para 9), Bursell concluded that ‘in so far as the Northern Province (sic) the Alsager test still prevails’ (para 22). Northern ecclesiastical courts remain ‘bound’ by the Alsager guidance, whatever the southern provincial court might say.
(This confusion of binding precedent and mere judicial guidance is discussed in a separate post ‘Unprecedented Confusion: A Tribute to Chancellor Bursell’, filed below.)
Yet Bursell would have avoided his confusion in Sam Tai Chan if he had re-read his own judgment in Alsager. The Chancery Court said of its guidance that ‘We hope and believe that this judgment will assist all chancellors, both in this [northern province] and in the southern province’ (p.1398).
This makes clear that guidance from the provincial court is
(1) not ‘binding’ in the way that precedent is and
(2) meant to assist all ecclesiastical courts, not just the courts in its own province.
Perhaps Bursell has now re-read Alsager. In a recent article ‘Aspects of Exhumation and Burial’ (Ecclesiastical Law Journal, May 2017) he extolled the quality of the Alsager guidance, but did not repeat his flawed thesis on precedent.
However, the damage is done. The Worshipful but muddled Lady Chancellor of Sheffield was clearly misled by Bursell’s thesis, and even added a further confusion of her own. She concluded that ‘I can exercise my discretion … bound by the Alsager test and guided by the Blagdon test’: David Bell deceased 2016, para 3. (Rather difficult to be guided by one person while being bound by another person at the same time!)
The 2 tests are briefly stated. The Blagdon guidance commended
‘the straightforward principle that a faculty for exhumation will only be exceptionally granted’ (p.489).
The earlier guidance in Alsager had suggested that
‘the critical question … is ‘Is there a good and proper reason for the exhumation … ?’ (p.1401).
If the Alsager guidance had stopped there, the Blagdon guidance might not have been needed. That exhumation requires a ‘good and proper reason’ is an eminently reasonable suggestion, indeed rather obvious. Perhaps it sets the bar too low. Any proposal to exhume a departed loved one is likely to have a good reason, or at least an understandable one. The Blagdon guidance is stricter, requiring an exceptional reason.
But the real difficulty with Alsager is that it does not stop with its requirement of a good and proper reason for exhumation. The full guidance reads
‘Is there a good and proper reason for the exhumation, that reason being likely to be regarded as acceptable by right thinking members of the Church at large?’
This reference to right thinking Church members seems otiose. If there is good and proper reason for exhumation, then right thinking Church members will surely regard it as acceptable.
The Court of the Arches’ criticism was that ‘the reference to right thinking members of the Church at large is an extremely difficult test to apply in practice’ (p.488). Chancellor Bursell did not accept this criticism in his recent article. He grumbled that ‘civil courts have had no difficulty in applying the approach of … the man on the Clapham omnibus or of right-thinking members of society, the officious bystander, the reasonable landlord and the fair-minded and informed observer, and it is unclear why ecclesiastical courts should have greater difficulties’ (p.189).
He also cited a dictum of the Supreme Court that ‘These legal fictions [officious bystander etc] ‘belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to [Roman law]’ (n98).
But that is precisely the difficulty with the Alsager guidance. The Chancery Court did not make clear that its ‘right thinking members of the Church’ are fictional members only, and not real members. As the Court of the Arches noted in Blagdon ‘The Chancellor may consider that evidence ought to be taken on the matter [of what right thinking Church members would regard as acceptable]’. How should he go about doing that?
The lay petitioner, legally unqualified and unaware of legal fictions, will be even more confused than the court: ‘For the petitioner the [Alsager] test may give the impression that mustering support … is the way to persuade the court’. Consider a bereaved family undergoing the distress and humiliation of knocking on doors and soliciting signatures from strangers for the exhumation of their departed relative, in the mistaken belief that this will persuade the Church court to grant them a faculty. A frankly sickening prospect.
Although the Blagdon test for exhumation is stricter than the Alsager test, the Court of the Arches’ decision on the case was actually more generous than that of the Chancery Court. In Alsager, the petitioner wished to rebury his father’s ashes in the same grave as his (uncremated) mother, who had died many years later. Father and mother were both interred in the same churchyard, 30 feet apart. The mother had died in the Catholic Church, which still officially disapproves of cremation (Code of Canon Law 1983, canon 1176(3)).
Reuniting one’s parents in these circumstances is surely as good and proper reason as any for exhumation. Yet the Chancery Court refused a faculty. ‘Right thinking members of the Church at large’ might well consider this distinctly harsh.
In Blagdon, by contrast, the Court of the Arches sympathetically allowed parents to exhume the body of their dead son and rebury him in unconsecrated ground a long way away, but nearer to where they now lived.