ecclesiasticallaw

Ecclesiastical law

Category: Burial

The Burial Act 1857: A Grave Offence

‘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.

The Case of Fairmile Cemetery: A Distinguished Judgment

Oxford Consistory Court 2017, published on the internet website of the Ecclesiastical Law Association (accessed 5th May 2017).

This case offers much food for thought (albeit rather hard to digest) on the faculty jurisdiction over exhumation.

The late Mr Miller was buried in Plot 172 of the consecrated municipal cemetery.  Unfortunately Plot 172 had already been reserved by Mr Leventis, who was still alive.  Mr Leventis had reserved Plot 172 because he wanted to be buried adjacently to other members of his family.

The burial of Mr Miller in Plot 172 therefore infringed Mr Leventis’s legal right.  This was entirely the fault of the local authority.  They had mistakenly advertised Plot 172 as Plot 171.  So Mr Miller’s family thought they were burying him in an unreserved space.

Mr Leventis sought a faculty to have Mr Miller exhumed from Plot 172, but the Chancellor refused to grant one.

The facts stated in the judgment suggest that this was probably the right decision.  Although Mr Leventis could not be buried exactly as he had intended, his wish for a close family burial ‘can be approximately satisfied by the acquisition … of alternative plots … in a different configuration’ (para 80).  The contrite local authority ‘have said they will make such vacant plots as there are available to the Leventis family in any configuration they wish’ (para 85).  (They also paid all the legal expenses of the case (para 87)).  If Mr Leventis was still dissatisfied, he could complain to an ombudsman or sue for damages in the secular court. (para 84).  The slight interference with his burial plans did not justify the disturbance of Mr Miller’s remains and the ‘serious distress’ that this would cause to his family, who were entirely innocent of the mistake (para 80).

The Chancellor also rightly held that, though a mistake over burial and infringement of a right of burial are indeed grounds on which the court may grant an exhumation faculty, the court is never obliged to do this.  A faculty is always a matter for the court’s discretion, which depends on the facts of the particular case.  (He might have added that, though the faculty jurisdiction is subject to legal rights, it is not obliged to vindicate legal rights that others have infringed.)

So far, so reasonable.  But the Chancellor was clearly aware that, though exhumation faculties are not inevitable in cases of mistake and infringement of third party rights, they generally are granted in such cases.  Moreover, he himself had recently granted an exhumation faculty in just such a case:  Twyford Cemetery (2015).

This awareness seems to have made the Chancellor excessively anxious to distinguish this case from other cases where exhumation faculties have been granted.  The decision itself is reasonable, but these attempts to distinguish it from other decisions in similar cases are not.  Two false distinctions are made, concerning

(1) the nature of mistake and

(2) opposed and unopposed cases.

(1) The leading case on private exhumation is Blagdon Cemetery (2002) 4 All England Reports 482, in which the Court of the Arches held that ‘a mistake as to the location of a grave can be a ground upon which a faculty for exhumation may be granted … for example, a burial may take place in the wrong burial plot in a cemetery or in a space reserved for someone else …’ (quoted in para 42)

The Chancellor correctly observed that this dictum ‘does not amount to a rule, or even a presumption, that exhumation will be permitted where a mistake as to the location of a grave has been made’ (para 48).  The language is discretionary (‘can’, ‘may’).  But he went much further: the dictum did not apply to the case at all.

A baffling suggestion.  Surely this is exactly the sort of case to which the dictum applies?  Mr Miller had been buried in the wrong burial plot, which was also reserved for someone else.  There could not be a clearer case of mistake.

The Court of the Arches had gone on to suggest in Blagdon that exhumation faculties in mistake cases ‘amount to correction of an error in administration’, but that the presumption of permanent burial ‘is predicated upon disposal of remains in the intended not in an unintended plot …’.

The Chancellor seized on this last phrase: ‘Mr Miller’s body was buried where his family intended him to be buried … The misdescription of the vacant plot … is not material to that intention’ (para 49).  From this he concluded that ‘This is not … the sort of case identified by the Court of the Arches as being one where faculties can readily be granted’ (para 50).

What does this mean?  That Blagdon only applies where the person seeking the exhumation is the one responsible for the mistake?  Or that it only applies where the mistake concerns the physical location of the burial?

Mr Miller’s family were, of course, not responsible for the mistake.  And the family did intend to bury Mr Miller where they did.  But this intention was vitiated by their ignorance of Mr Leventis’s legal right.  They did not intend to bury Mr Miller in Mr Leventis’s reserved space.  If Mr Levantis’s legal right had been known at the time, Mr Miller would not have been buried where he was.  He was therefore buried in Plot 172 by mistake.  The judgment on this point makes a false distinction, based on an over-analysis of the Blagdon guidance that is strained to the point of perversity.

(2) The exhumation of Mr Miller’s remains was, understandably, opposed by his family.  Most private faculties (like most faculties in general) are unopposed, and they usually concern only the deceased person’s relatives, not third parties.

The Chancellor saw this opposition as a further distinction from Blagdon.  He asserted that ‘Blagdon does not provide any guidance as to how petitions where exhumation is opposed should be dealt with’ (para 48).  He continued: ‘where the Court of Arches addresses cases of mistake [in the Blagdon guidance] it is concerned with cases where exhumation is carried out … with the support of the family of the deceased’ (para 51).

He therefore turned to the Victorian case of Dixon (1892) Probate 386, where the court held that exhumation may be permitted

‘[1] on the application of members of the family, for reasons approved of by the court, or

[2] upon the application of other parties upon the ground of necessity or proved public convenience …’ (quoted para 51).

On the basis of this supposed authority the Chancellor held that, because ‘it is ‘other parties’ [i.e Mr Leventis] who apply for the faculty the test would seem to be a higher one than that which applies where the application is made by … the [Miller] family’.  Mr Leventis would have to show necessity or public convenience, not a mere private right.

It is true that Blagdon was unopposed.  But so was Dixon.  In that case the deceased’s widow was evidently an enthusiast for the then novel practice of cremation.  She wished to exhume her late husband (who had died 18 years earlier) in order to cremate him, so that his ashes could be mingled with hers when the time came.  A faculty was refused.

It should be fairly obvious from this context that the dictum about ‘other parties’ did not refer to a disputed private exhumation.  It referred to public exhumation, i.e cases where exhumation is sought in order to facilitate some development (e.g enlargement of the church, road-widening, reordering of the churchyard).  It was not addressed to the dispute in this case.

In Blagdon, the case which the Court had to decide was unopposed.  However, the guidance that it gave along with its decision was addressed to opposed and unopposed private exhumations alike.

In the published report, the Blagdon guidance is entitled ‘Exhumation: General Principles’ (above para 18).  This hardly suggests that it is limited to unopposed cases.  On the contrary, it is general guidance.  Moreover, the guidance does contain at least one explicit reference to opposed exhumation:

‘we do not regard it as persuasive that there is particular support for an unopposed petition any more than support for a contested petition of this nature would affect the decision on the merits of the petition’ (para 36).

An opposed case will require a more onerous procedure, and is likely in practice to receive closer scrutiny than an unopposed case.  However, there is no reason of principle why opposition to a private exhumation should per se affect the substantive final decision on the case.  Why should two dead bodies be treated differently just because one is the subject of a dispute and the other is not?

As well as the 2 false distinctions, the judgment contains exaggerations introduced to justify the decision.  The Chancellor was understandably influenced by the fact that Mr Miller had been buried with Anglican rites and that his family were practising Christians (para 62), and less impressed by Mr Leventis’s clannish desire to be buried with his family (paras 64-68).  He emphasised the finality of Christian burial (paras 58-61).  However, he went too far in holding that ‘To exhume and relocate [Mr Miller’s] body now would be contrary to the Christian belief of the family’ (para 62).  There is no such Christian belief.  The fact that ecclesiastical courts regularly permit exhumation demonstrates this.

The Chancellor also found Mr Leventis guilty of ‘undue delay’ in applying for Mr Miller’s exhumation.  ‘Approximately a year’ passed between his awareness that his reserved plot had been taken by Mr Miller and the lodging of the faculty petition (para 69).  This may be rather harsh, as secular courts allow as long as 12 years for claimants to assert their proprietary rights.

However, as we noted earlier, the faculty jurisdiction is not concerned with the vindication of legal rights.  The Chancellor cited Watson v Howard, aka St. Luke, Holbeach (1991) 1 Weekly Law Reports 16 (para 55).  The decision to permit exhumation in that case seems to have been taken according to equitable criteria.  Mrs Watson had acted promptly in asserting her right to the burial plot, and had not acted unreasonably in declining alternative arrangements for her burial.

Ecclesiastical Burial: Disposal, Decency and Disturbance

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.

Disposal

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

[1] to have burial within the consecrated burial-yard of the parish and

[2] 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).

Decency

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.

Disturbance

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

(1) public

(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.

Freelancing and Fees: The Long Arm of the Ecclesiastical Law

Rouch v Hawthorne (2015) Winchester Disciplinary Tribunal, Chancellor Bursell QC presiding

The erudite and informative blog Law and Religion UK (to which this blog has been much indebted over the last three years) has drawn attention to a minor controversy in the Church of England concerning fees charged by clergy for officiating at funeral services in crematoria.

The Rev Dr Hawthorne was the non-stipendiary assistant curate of a parish (therefore not an incumbent).  The Disciplinary Tribunal found him guilty of dishonesty concerning such fees, over quite a long period.  Dr Hawthorne later crowned this career of errors by turning papist.  He left the Church of England to join the Anglican Ordinariate (though, of course, it goes without saying that this had not the slightest influence whatsoever on the Tribunal’s condemnation of him).

Even though he had already left the Church of England, the Tribunal found it necessary to prohibit Dr Hawthorne from exercising the ordained ministry therein, for the rest of his natural life.

The Law and Religion blog relates (16th March 2015) that Dr Hawthorne’s case has caused ‘a degree of concern’ among other clergy who routinely officiate at crematorium funerals – as well it might.  Guidance issued by the Church of England’s Legal Office in the wake of the case warned menacingly that ‘Unless the diocesan board of finance has expressly agreed … it is not lawful for a member of the clergy to retain any fee … To do so in the absence of agreement with the board would amount to the appropriation of property belonging to another for the purposes of the Theft Act 1968’ (‘Crematorium Funerals and Parochial Fees’, January 2015, para 6).

As mentioned, Dr Hawthorne was an assistant curate, attached to a particular parish.  However, the case against him was principally concerned with his activity at a crematorium outside the parish.  It seems that he had been freelancing there, taking the funerals of people who had no connection with his own parish.  He had officiated at 227 cremations and received about £23,000 in fees.

The case against Dr Hawthorne was that he had ‘dishonestly retained fees payable under the Parochial Fees Orders for services at which he has officiated’ (para 18).  Two observations may be made on this complaint:

(1)  It does not refer to funerals per se, only to funeral fees.  The Church authorities did not apparently object to Dr Hawthorne officiating at the crematorium.  Indeed the Tribunal’s decision indicates a striking lack of curiosity about how Dr Hawthorne came to take so many funerals outside his own parish.  (Did he advertise through funeral directors, the crematorium management, other clergy, or was he just approached by them?  No explanation is given.)

Canon C8(4) lays down a general rule against freelancing or ‘poaching’ by clergy on the cure of souls of other clergy:

‘No minister who has … authority to exercise his ministry in any diocese shall do so therein in any place in which he has not the cure of souls without the permission of the minister having such cure …’.

S.2 of the Miscellaneous Provisions Measure 1992 permits clergy to officiate at crematoria without requiring the permission of the incumbent in whose parish the crematorium happens to be situated.  However, s.2 only permits clergy to officiate at the cremations of their own parishioners.

Thus, for ecclesiastical purposes, a crematorium is treated as if it was part of the deceased person’s parish, and therefore within the cure of souls of that person’s incumbent.  If the first cremation of the day is of a parishioner from Barchester, the crematorium is treated as if it were part of the parish of Barchester.  If the next cremation is of a parishioner from Crampton Hodnet, the crematorium is then treated as part of the parish of Crampton Hodnet.  And so on.

Therefore if a clergyman officiates at the cremation of a non-parishioner without the incumbent’s permission, he will be guilty of ‘[an] act in contravention of the laws ecclesiastical’, contrary to the Clergy Discipline Measure 2003, s.8(1) .  However, Dr Hawthorne was not charged with this offence.  Nor did the Tribunal expressly find that he had officiated without permission.  Indeed, it seemed to accept that the bishop knew about the crematorium funerals (cf. para 37).

(2) The complaint was only that Dr Hawthorne retained fees, not that he demanded or received the fees in the first place.  Yet the parochial fees legislation in force at the time is very clear that funeral fees are payable only to an incumbent.  Dr Hawthorne was an assistant curate, not an incumbent.  Therefore he could have had no right to be paid any fees.  So why was he not charged with demanding or receiving the fees, only with retaining them?

The answer seems to be that it is common practice for non-incumbent clergy to receive fees, notwithstanding the provisions of the parochial fees legislation.  The Church does not seem to object to non-incumbents taking fees paying them into their personal bank accounts etc, just so long as they account for them to the rightful owners later on.

This is arguably a rather dangerous practice.  A non-incumbent clergyman who accepts a fee is prima facie in breach of the parochial fees legislation, even if this is common practice, and is therefore vulnerable.  Any confusion or forgetfulness may give rise to a nasty disciplinary complaint, and accusations of dishonesty.  On the other hand, if a non-incumbent clergyman refuses to handle a fee, and the fee is then not paid to the Church at all, he may get into trouble for ‘neglect and inefficiency in the performance of the duties of his office’ (2003 Measure, s.8(1)), depriving the Church of fee income.  No wonder some clergy are anxious.

It may be that the parochial fees legislation requires further amendment.  At present, it is concerned only with the imposition of fees.  It provides no procedure for collecting them.  Moreover, it is argued that the policy underlying the legislation is incoherent.  What are parochial fees for?  Obviously to provide a source of income for the Church.  However, incumbents should not be paid fees for officiating at the weddings and funerals of their own parishioners, since this is what they are paid to do anyway.  If they are paid fees on top of stipend, they are effectively being paid twice for the same work.

By contrast, non-stipendiary clergy (like Dr Hawthorne) and retired clergy have a just claim to payment of any statutory fees, since weddings and funerals are not part of their paid duty.  There will also be little incentive to do such work, if they receive no remuneration for doing it.

The Ecclesiastical Fees (Amendment) Measure 2011 partly addressed this anomaly, by providing that fees should in future payable to the diocesan board of finance (which now pays all stipends), and not to incumbents.  But this does not resolve the difficulties revealed by Rouch v Hawthorne.

However, the Tribunal which decided Rouch v Hawthorne was evidently unmoved by the difficulties.  It found Dr Hawthorne guilty, not merely of unbecoming and inappropriate conduct, but of dishonesty.  It effectively called him a thief.  Such an accusation must be a dreadful experience for any person of good character, let alone a clergyman.  Theft is, of course, contrary to the Eighth Commandment.  It was the accusation made against Judas Iscariot in the Gospel.  (Perhaps joining the Ordinariate is regarded as an act of betrayal in the Church of England!)  And it is a serious crime in secular law.

It is argued that the Tribunal should have been guided by the famous case of Neary v Dean of Westminster (1998).  The Choirmaster of Westminster Abbey was dismissed for making secret profits, over a number of years, derived from his management of the Abbey choir (fees for arranging concerts, recordings etc), and not accounting for these to the Abbey authorities.  The Special Commissioner (a retired law lord) ruled that the dismissal was justified.  However, he made clear that the Choirmaster’s misconduct amounted to impropriety only, and not dishonesty.

If Dr Hawthorne received funeral fees on a regular, ongoing basis without accounting for them, then he was guilty of an impropriety which could arguably justify a verdict of inappropriate conduct under the Clergy Discipline Measure.  However, he did work for those fees.  He turned up at the crematorium, took the funeral services, comforted the bereaved relatives.  He had a legitimate expectation of payment, even though no legal right. Yet by condemning him as dishonest, the Tribunal treated him exactly the same as if he had fraudulently claimed fees for funerals that he never took.

The Tribunal justified its continued pursuit of Dr Hawthorne, notwithstanding that he had left the Church of England, on the ground that he had not executed a deed of relinquishment under the Clerical Disabilities Act 1870, and so remained subject to ecclesiastical discipline.  This view was trenchantly supported by the Legal Office, which asserted (perhaps with a beady eye on other clergy who might be tempted across the Tiber) that ‘only where a deed [of relinquishment] is executed and enrolled … and subsequently recorded by the bishop is the person concerned freed from the legal constraints and obligations that apply to clerks in holy orders’ (para 10).

Yet this is not really accurate.  S.8 of the 1870 Act, which is headed ‘saving for pecuniary liabilities’, provides that ‘Nothing in this Act shall relieve any person or his estate from any liability in respect of … any debt or other pecuniary liability incurred or accrued before or after his execution of a deed of relinquishment … and the same [debt / liability] may be enforced and recovered as if this Act had not been passed’.

If the Church authorities really believed that Dr Hawthorne had swindled them, and deprived them of income which rightfully belonged to them, they could have taken action against him in the secular court, even if he had executed a deed of relinquishment (and even if he had died).  The ecclesiastical tribunal was not in a position to ‘discipline’ Dr Hawthorne in any meaningful sense, since he had already ceased to belong to the Church of England.  However, as this vindictive proceeding makes clear, even though clergy may leave the Church of England for the Ordinariate, they still leave their characters behind them.

A Family Funeral

The melancholy case of Rouch v Hawthorne (2015) reminds the author of this blog of the funeral of his late Uncle, many years ago now.

The Uncle died at his home in Aberystwyth.  The family decided on a cremation.  At that time Aberystwyth had no crematorium.  The nearest crematorium was in Shrewsbury.  (Coincidentally, the Uncle had been educated at Shrewsbury School.)

The Uncle and his family were nominally Anglican but, alas, never went to church.  It is unlikely that they had even met their current local vicar (though they had probably met his predecessors).  However, they were friendly with the Baptist minister who lived next door to them.  In fact, the Baptist minister took the Aunt’s funeral when she died some years later (by which time Aberystwyth had acquired its own crematorium).

The Uncle, with his two brothers, had served in the Second World War.  (One brother was killed in North Africa.)  The family therefore found a vicar in the Shropshire area who was, or had formerly been, a military chaplain.  He agreed to take the Uncle’s funeral at the Shrewsbury crematorium.

The funeral itself was short and simple, but very dignified.  The chaplain used the awesome burial service in the 1662 Prayer Book.  He also read out a deeply moving tribute to the Uncle’s war service.

But who was entitled to the funeral fee?  Even if the chaplain who took the funeral was an incumbent, he was not the Uncle’s incumbent.  The Uncle’s incumbent was the Vicar of Aberystwyth.  Perhaps he was the rightful owner of the fee.  Or maybe the diocesan board of finance in St. David’s had a claim.  But Aberystwyth is in Wales, and the parochial fees legislation and the Miscellaneous Provisions Measure 1992 only extend to England (Ecclesiastical Fees Measure 1986, s.12(2), 1992 Measure, s.19(3)).  The Church in Wales has, of course, been independent of the Church of England since Disestablishment in 1920.  Since then, English ecclesiastical law has applied only in England, not Wales.

Even apart from the ecclesiastical separation of Wales and England, it is hard to see what claim the Vicar of Aberystwyth had on the funeral fee.  He did not take the funeral, or make the arrangements.  He had never even met the Uncle or the family, and had done nothing for them.  The family wanted a Christian funeral for the Uncle, but not necessarily an Anglican one.  The fact that they asked a Baptist minister to take the Aunt’s funeral makes this point.  And they had chosen the chaplain to take the Uncle’s funeral not because he was Anglican, but because he was military.