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Published online by Cambridge University Press: 02 May 2017
This article considers a number of legal questions surrounding burial and exhumation. Based on an extensive paper given at the Ecclesiastical Law Society's conference in 2015, it builds on previous work by the author in this area and examines the changes in the law brought about by recent case law.
1 See Guernsey, R, Ecclesiastical Law in Hamlet: burial of Ophelia (New York, 1885)Google Scholar; Phillips, O Hood, Shakespeare and the Lawyers (London, 2010), p 154Google Scholar.
2 See Guernsey, Ecclesiastical Law in Hamlet, pp 6–7. In some editions of the play the gravediggers are described as clowns but this tends to obscure the references to the canon law.
3 (1563) 1 Plowden 353. Sir James Hales was a puisne judge of the Court of Common Pleas. However, this report was in law French and was not published in English until the late eighteenth century: Hood Phillips, Shakespeare and the Lawyers, pp 76–78.
4 See The Canon Law of the Church of England (London, 1947) for the date of these canonsGoogle Scholar.
5 See Re St Edmund, Gateshead [1995] Fam 172; Re St Mary the Virgin, Oxford [2009] Fam 38.
6 Guernsey, R, Suicide: history of the penal laws relating to it in their legal, social, moral and religious aspects (New York, 1883), p 23Google Scholar.
7 Presumably those which did not survive were regarded as ‘repugnant, contrariant or derogatory’ of the laws or statutes of the realm: Canon Law Act 1543, s 3; Act for the Submission of the Clergy 1533, s 7; 34 Halsbury's Laws of England (London, 2011), paras 8–9Google Scholar. By section 3 of the Offences against the Persons Act 1861, the body of a person executed for murder was buried in the precinct of the prison. By section 6 of the Capital Punishment Amendment Act 1868, if there was insufficient room, one of Her Majesty's principals of state could direct another fitting place. Both Acts are now repealed. Canon B 38(6) states: ‘If any doubts shall arise whether any person deceased may be buried according to the rites of the Church of England, the minister shall refer the matter to the bishop and obey his order and direction.’
8 The question of the non-burial of an excommunicated person cannot now arise in practice: see Bursell, R, Liturgy, Order and the Law (Oxford, 1996) p 219, n 38Google Scholar.
9 ‘Idiots, lunatics, or persons otherwise of unsound mind, who have deprived themselves of life, are not included in the words, “that have laid violent hands upon themselves;” because such language exclusively applies to those who have destroyed themselves voluntarily, having capacities to govern themselves, and able to discriminate evil from good. The proper judges whether persons who died by their own hands were out of their senses are, doubtless, the coroner's jury. Or, if the body cannot be viewed, the justices in session may inquire of the felony … The minister of the parish has no authority to be present at viewing of the body, or to summon or examine witnesses. And therefore he is neither entitled nor able to judge in the affair; but may well acquiesce in the public determination, without making any private enquiry. Indeed, were he to make one, the opinion which he might form from thence could usually be grounded only on common discourse and bare assertion. And it cannot be justifiable to act upon these, in contradiction of a jury, after hearing witnesses upon oath’: Stephens, A, The Book of Common Prayer (London, 1854), vol III, pp 1711–1712 Google Scholar. See, too, Braganza v BP Shipping Ltd, The Times, 6 April 2015.
10 The law gained statutory authority by the Book of Common Prayer being annexed to the Act of Uniformity 1662: Kemp v Wickes (1809) 3 Phillimore 264 at 269.
11 Burn, R, Ecclesiastical Law (second edition, London, 1767), vol I, p 243Google Scholar. Burn says that it was the 34th Canon, whereas Cross, F and Livingstone, E (eds), The Oxford Dictionary of the Christian Church (third edition, Oxford, 1997), p 1556Google Scholar, say that it was the 16th Canon.
12 Guernsey, Ecclesiastical Law in Hamlet, pp 21–22.
13 Friedberg, E (ed), Corpus Iuris Canonici Pars Prior Decretum Magistri Gratiani (Graz, 1959)Google Scholar Part II, Caus 23, Qu 5, Cap 12 (Burn, Ecclesiastical Law, vol I, p 243, states that there is an added note providing an exception in cases of insanity; however, this note does not appear in the Friedberg edition (see vol I, p 937). Burn notes that ‘our old ecclesiastical laws make no exception, in favour of those who kill themselves in distraction’). See, too, Kemp v Wickes, at para 272; Helmholz, R, The Oxford History of the Laws of England, vol 1 (Oxford, 2004), p 619CrossRefGoogle Scholar.
14 Guernsey, Ecclesiastical Law in Hamlet, pp 27–28. These were the ‘shards, flints and pebbles’ referred to in Hamlet.
15 (1809) 3 Phillimore 264 at 272–273 per Sir John Nicholl. See, too, Guernsey, Suicide, p 20. In the Inferno, Dante placed suicides in the middle ring of the seventh circle (violence); however, he placed Judas Iscariot in the ninth circle (treachery).
16 Fellows, A, The Law of Burials and Generally of the Disposal of the Dead (London, 1940), p 305Google Scholar, emphasises that this provision relates to ‘the ancient ecclesiastical law forbidding the reading of the services over suicides, the excommunicate and unbaptised’. However, he continues: ‘It is conceived that the Church of England burial service could not properly be read over one known to have formally abjured Christianity altogether.’ The latter suggestion is certainly contrary to the current Canons: see Canon B 38(2).
17 Fellows, Law of Burials, p 305, says: ‘This indicates that the prescription or approval must be given beforehand. Reference may be made to any particular bishop, to see whether he has a prescribed form for suicides’. Here ‘any particular bishop’ must mean the relevant bishop.
18 Canon B 43(3) now permits an Anglican cleric in certain circumstances to take part in a funeral service in designated churches according to the rites of those churches. Such a service might, of course, be in relation to a suicide but the words ‘take part in’ do not mean that the cleric may take the whole or a significant part of the service: see the opinion of the Legal Advisory Commission on Marriage by Anglican Clergy in Nonconformist Chapels, available at <www.churchofengland.org/media/2089656/canon%20b%2043%20(amended).pdf>, accessed 30 January 2017.
19 The Canon reflects the suggestion put forward in draft canon XLVII in The Canon Law of the Church of England, p 136. In so far as the wording of the Canon is wider than the actual statutory provisions (as amended), the clergy are nonetheless bound by them as they in no way attempt to derogate from those provisions.
20 Common Worship: pastoral services (second edition, London, 2005), p 360Google Scholar.
21 Ibid , p 464. The provisions of Canon B 20 are currently being considered by General Synod. See also, in this issue, Wright, C, ‘The English canon law relating to suicide victims’, (2017) 19 Ecc LJ 000–000Google Scholar.
22 See the Background Note to General Synod GS 1972B for the general history of discussions about such a service.
23 Cripps on Church and Clergy (eighth edition, London, 1937), p 566, says that, in the case of a stranger, baptism should be presumed. This accords with the legal maxim omnia praesumuntur rite esse acta and would seem to apply in all cases unless and until a reasonable doubt is raised in relation to the particular deceased.
24 See ‘Theological note on the funeral of a child dying near the time of birth’ in Common Worship: pastoral services, p 317. Prayers for the stillborn are commended (but not authorised): ibid, pp 310–311.
25 General Synod has power to authorise such a service under the Church of England (Worship and Doctrine) Measure 1974.
26 Kemp v Wickes (1809) 3 Phillimore 264 at 270 and 273. See also Article XXVI of the Thirty-nine Articles and M Davie, Our Inheritance of Faith (Malton, North Yorkshire, 2013), pp 489 ff. See also Article XVIII. If this is the correct reason, it is irrelevant whether the death is of an infant or of an adult: see, too, Articles IX and XVI. It is suggested that there is no duty on the minister to enquire into the fact or otherwise of the baptism unless put on notice by good evidence. This is also the position in relation to suicides. See also Braganza v BP Shipping Ltd [2015] UKSC 17.
27 Cross and Livingstone, Oxford Dictionary of the Christian Church, p 151. On the other hand Stephens, Book of Common Prayer, vol III, p 1709, states: ‘This office is denied to infants not yet admitted into the Church by baptism; not so much to punish the infants, who have done no crime as the parents by whose neglect this too often happens.’
28 Common Worship: Christian initiation (London, 2006), p 105, n 2Google Scholar; Common Worship: pastoral services, p 198, n 2.
29 The House of Bishops has commended a prayer for the family of a stillborn child; such a child is bound to have died unbaptised as the Church of England does not recognise baptism of the dead: Common Worship: pastoral services, pp 310 and 464. It should be noted that the ‘Outline order for the funeral of a child’ and the ‘Outline order for the funeral of a child within a celebration of Holy Communion’ (pp 297 and 298) are also only commended for use (p 464). Questions may arise as to when death actually occurred, especially as definitions of death differ.
30 Canon B 2(2).
31 34 Halsbury's Laws of England, para 115.
32 The word ‘provision’ is wide enough to embrace Canons and Acts of Synod as well as Measures. See ibid.
33 Synodical Government Measure 1969, s 2(1), Sch 2, Arts 7(1) and 12(1); Constitution of the General Synod, Art 12(1); Standing Orders of the General Synod of the Church of England (London, 2009), appendix D.
34 The explanation given in the Report of the Revision Committee (GS 343X), para 151, reads: ‘We were reminded by the Archdeacon of Colchester that in the majority of cases in which a child has received Emergency Baptism and lives, the child is not subsequently brought to church by the parents. The Archdeacon felt that some form of guidance for the clergy would be helpful. We hope that the note we have provided will be of some use.’ The explanation seems, however, to bear little or no relevance to the text of the note itself. (I am indebted to the Reverend and Worshipful Alexander McGregor for the procedural details here and in the text.)
35 Although a note in the General Synod agenda for February 1979 states that a vote on final approval would require a majority of two-thirds in each House, there is no indication in the Report of Proceedings that the procedure in relation to Article 7 had been complied with.
36 This was an oral communication to the author by the late Bishop Eric Kemp. The author is unaware whether the same occurred when the relevant Common Worship services were introduced.
37 Common Worship: Christian initiation, p 311; Common Worship: pastoral services, p 463.
38 Canon B 1(2) and Canon C 15(1)(1), Declaration of Assent. See also Canon B 43.
39 Canon C 15(1)(6). This remains the case unless, and until, the cleric renounces his or her orders: see the Clerical Disabilities Act 1870, ss 3 and 4; 34 Halsbury's Laws of England, para 443. See also <www.churchofengland.org/media/2147363/hawthorne.pdf> and <https://www.churchofengland.org/media/2147376/hawthorne%20penalty.pdf>, accessed 30 January 2017.
40 Not only do they on occasion take general ‘Christian’ services but they also take non-Christian services. The problem is exacerbated when the cleric in question fails to deal with the fees in accordance with the relevant fees orders or the applicable diocesan regulations. Subject to certain transitional provisions, incumbent's fees have been abolished from 1 January 2013: see the Ecclesiastical Fees Measure 1986 as amended by the Ecclesiastical Fees (Amendment) Measure 2011. Parochial fees now automatically arise and are payable to the diocesan board of finance and the parochial church council: see the Ecclesiastical Fees Measure 1986, s 1. The amount of the fees is set out in the current Parochial Fees Order.
41 Nesbitt v Wallace [1901] P 354.
42 See the Extra-Parochial Ministry Measure 1967; Church of England (Miscellaneous Provisions) Measure 1992, s 2; Dioceses, Pastoral and Mission Measure 2011, s 80, especially §11. See, too, the Marriage Act 1949, ss 25(a) and 75(2)(a).
43 Church of England (Miscellaneous Provisions) Measure 1992, s 2(6): ‘“Minister” in relation to a parish, means (a) the incumbent; (b) in the case where a benefice to which the parish belongs is vacant (and paragraph (c) does not apply), the rural dean; (c) in the case where a suspension period applies to the benefice to which the parish belongs, the priest-in-charge (if any); and (d) in a case where a special cure of souls in respect of the parish has been assigned to a vicar in a team ministry by a scheme under the Pastoral Measure 1983 or by his licence from the bishop, that vicar.’
44 Lyndwood, W, Provinciale Angliae (Oxford, 1679), p 226Google Scholar; Bursell Liturgy, Order and the Law, pp 65 and 237.
45 ‘Indecent behaviour’ almost certainly has the same meaning as in the Ecclesiastical Jurisdiction Act 1860, s 2, and probably includes expressions of disapproval as well as interference with the proper and orderly conduct of the non-Anglican service: see Bursell, Liturgy, Order and the Law, p 249 and cases there cited.
46 This may possibly have a different meaning from the use of those words in the Declaration of Assent previously required by the Clerical Subscription Act 1865, s 4: as to the latter, see Bursell, Liturgy, Order and the Law, pp 280–282; Bursell, R, ‘The clerical declaration of assent’, (2016) 18 Ecc LJ 165–187 Google Scholar.
47 All distinctions between felonies and misdemeanours were abolished by the Criminal Law Act 1967, s 1.
48 See Matthews v King [1934] 1 KB 505.
49 (1666) 2 Keble 124.
50 (1821) 2 Haggard 333.
51 Ibid , at paras 343–344.
52 Stephens, Book of Common Prayer, vol III, p 1731.
53 See In re Stocks, decd (1995) 5 Ecc LJ 527Google Scholar. In the All Souls and Saints 2014 edition of the Ecclesiastical Law Society's Gospel and the Law, the following story is recounted ‘from the Provinces’: ‘One fairly late night, the vicar heard voices in the graveyard just across the wall from the vicarage. On going to investigate she discovered a group of people pouring ashes from a plastic urn around the base of a tree at the edge of the graveyard. When she asked what they were doing she was told that they were scattering mum's ashes where they had previously scattered dad and the vicar had given them permission … The worst of it was that, even having explained that she was the vicar and knew nothing of any permission for scattering, the family didn't believe her! They were not scooping up the ashes for anyone; they departed in a bit of a huff, leaving the vicar with grey piles of human ash under the tree at the entrance to the churchyard. Leaf blowers were not sufficiently powerful to disperse ashes so she and her husband had to spend time, late at night, burying the ashes beneath where they had been scattered.’ Although there must be great sympathy for the vicar in an impossible situation, there must be a query whether the attempted use of leaf blowers could have been ‘reverent’. No indication is given as to whether the subsequent burial was recorded in the burial register.
54 Section 3(1) extends the right of burial in relation to corpses to the burial of ashes. For the avoidance of doubt, section 3(2) provides that the bishop of a diocese may consecrate land in the diocese for the sole purpose of burying cremated remains.
55 Burial of ashes at sea should be similarly reverent and the ashes should not be broadcast into the air. In re Stocks, decd.
56 The requirement that the ashes should be disposed of ‘reverently’ is no more than a reflection of the general canon law: Bursell, Liturgy, Order and the Law, pp 206 and 237. See also Canon B 1(2). The aforementioned issue of Gospel and the Law (see above, n 53) suggests that scattering of ashes is ‘contrary to the theology of permanent Christian burial’ but such a suggestion runs counter to the Anglican acceptance of disposal of ashes at sea: see Canon B 38(4)(b).
57 See Smethurst, A and Wilson, H (eds), Acts of the Convocations (London, 1961) pp 158–159 Google Scholar. For a similar Act of Synod by the Canterbury Synod but in different terms, see pp 86–87.
58 Bland v Archdeacon of Cheltenham [1972] Fam 157 at 166.
59 The words ‘other burial ground’ therefore do not embrace burials at home (unless, possibly, there has been an official change of use of the land). However, it might include burial in ground specifically set aside for green burials even if not consecrated. In this case the direction of the diocesan bishop should be sought under Canon B 38(6); if such burial is permitted and the ground has not been consecrated, the officiating minister on coming to the grave must first bless the same: Canon B 38(5). The position is unaffected by section 12 of the Burial Laws Amendment Act 1880. See the Open Spaces Act 1906, s 20, and the Registration of Burials Act 1864, s 7.
60 Canon B 38(2), sets out the normative position.
61 Canon B 38(5). Fortunately, it is not part of the minister's duty to ensure in relevant cases that the landowner has any requisite planning permission for change of use, nor to consider whether permission is required under the Control of Pollution Act 1974 and the Environmental Protection Act 1990: see <http://www.gardenlaw.co.uk/gardenburial.html> accessed 30 January 2017. In Adlam v Colthurst (1867) LR 2 A & E 30, the defendant was ordered to replace human remains that had been illegally removed from a churchyard for reburial in an adjoining field.
62 See Baker, T, Baker's Law Relating to Burials (sixth edition, London, 1901), p 43Google Scholar.
63 (1719) 1 Strange 167.
64 (1722) 1 Strange 533.
65 Fellows, Law of Burials, p 288: ‘It is understood that a difference of opinion exists between the legal advisers of the Church Assembly on the one hand, and those of the Home Secretary on the other as to this word, the former contending that “place of burial” means a grave-space, the former contending that it refers to an area of consecrated ground. On the latter interpretation, the Home Secretary's licence would be required for moving a body from one grave-space to another in the same cemetery or churchyard, but not for removal to a separately consecrated area. Preference is here expressed for the opinion first mentioned as the wider and more reasonable, but the issue has not been settled judicially.’ Apparently in 1985 the Home Office finally agreed with the Church lawyers: see Legal Opinions Concerning the Church of England (seventh edition, London, 2012), p 251Google Scholar; Smale, D (ed), Davies’ Law of Burial, Cremation and Exhumation (sixth edition, London, 1993), p 198, n 1Google Scholar. The matter is now put beyond doubt by the newly substituted section 25.
66 These words led the Home Office to argue that a licence was required in addition to a faculty if the exhumed body were to be reburied in the same grave: see Smale, Davies’ Law of Burial, p 198, n 1. Again, the matter is put beyond doubt by the new section 25.
67 As amended by the Criminal Justice Act 1982, s 46. The application of the section has been excluded by the New Towns Act 1965, s 20(6); Town and Country Planning Act 1971, s 128(6); and Development of Rural Wales Act 1976, s 5(1), Sch 3, para 36(6), in relation to removal in accordance with regulations made for the purposes of those Acts. Fellows, Law of Burials, p 125, says: ‘The Home Secretary's licence under that section is presumably taken to authorise those who exhume under it from consecrated ground to proceed thereunder without a faculty. It is on occasion granted to the police for the purposes of justice, and in various instances has resulted in the conviction for murder of some person who has poisoned the deceased.’
68 Baker, Baker's Law Relating to Burials, p 43.
69 Matthews, P, Jervis on the Office and Duties of Coroners (thirteenth edition, London, 2014)Google Scholar, para 8-04. The statutory powers are those in the Coroners and Justice Act 2009, s 32, Sch 5, para 6, formerly the Coroners Act 1988, s 23, and before that the Coroners Act 1980, s 4.
70 Matthews, Jervis on the Office and Duties of Coroners, para 8-04. Dorries, C, Coroners’ Courts: a guide to law and practice (third edition, Oxford, 2014)Google Scholar, para 4.57, does not mention the question of exhumation from consecrated ground.
71 Quoting R v Tristram (1898) 2 QB 371; Re Talbot [1901] P 1.
72 Matthews, Jervis on the Office and Duties of Coroners, para 8-04.
73 The latter jurisdiction gives any objector to the exhumation a better possibility of a hearing. According to Dorries, Coroners’ Courts, para 4.57, n 57, there are on average only four coroners’ exhumations nationally every year.
74 By section 2 of the Church of England (Miscellaneous Provisions) Measure 2014.
75 Yorick was the king's jester. His burial could not have occurred very long before and discovering his remains should not have been unexpected.
76 (2004) 7 Ecc LJ 233Google Scholar.
77 See 34 Halsbury's Laws of England, para 6, n 15.
78 (2005) 8 Ecc LJ 235Google Scholar.
79 (2009) 12 Ecc LJ 122Google Scholar.
80 See, eg, the faculty cases in relation to the identification for whatever reason of body parts: see the cases referred to in 34 Halsbury's Laws of England, para 1084, n 24.
81 (2006) 9 Ecc LJ 241Google Scholar. The chancellor described it as a ‘technical exhumation’.
82 This is in the words of the committal: ‘we therefore commit his body to the ground; earth to earth, ashes to ashes, dust to dust …’: ‘The burial of the dead’ in the Book of Common Prayer; ‘The funeral service’ in Common Worship: pastoral services, p 269.
83 Re Blagdon Cemetery [2002] Fam 299 at paras 11–12.
84 [1999] Fam 142 at 149 H. The Chancery Court of York consisted of Sir John Owen, Auditor, and Chancellors Coningsby and Bursell.
85 [1958] 1 WLR 246. See, too, Re St James Churchyard, Hampton Hill (1982), referred to in Re Blagdon Cemetery at para 38.
86 [2002] Fam 299. The court consisted of Dr Sheila Cameron, Dean, and Chancellors Clark and George.
87 Ibid , at para 36(vi).
88 Ibid , at para 40.
89 Ibid , at para 37(3).
90 See Re South London Crematorium (unreported), quoted in Re Blagdon Cemetery at para 36(i).
91 [1999] Fam 142.
92 Ibid , at para 147 D–E.
93 Ibid , at paras 148 G–H, 149 C–D.
94 Petchey, P, ‘Exhumation reconsidered’, (2001) 6 Ecc LJ 122–134 Google Scholar at 124–125.
95 Re Blagdon Cemetery. See also George Ch in Re Kingston Cemetery (Wyeth) (unreported, 3 July 2000).
96 [2016] ECC Dur 2 at para 22.
97 McGuire v Western Morning News [1903] 2 KB 100 at 109 per Collins MR.
98 Healthcare at Home Ltd v The Common Services Agency [2014] UKSC 49 at paras 1–4. These legal fictions ‘belong to an intellectual tradition of defining a legal standard by reference to a hypothetical person, which stretches back to the creation of the Roman jurists of the figure of the bonus paterfamilias’ (para 2).
99 Re Sam Tai Chan [2016] ECC Dur 2 at paras 22 and 26.
100 Re Christ Church, Alsager at para 144 E–F.
101 Ibid at 145 G–H.
102 Nonetheless, see Re St Andrew, Sedburgh (2010) 13 Ecc LJ 121Google Scholar; Re Bromsgrove Old Cemetery (2010) 13 Ecc LJ 122Google Scholar; Re St Mary the Virgin, Monkseaton (2010) 13 Ecc LJ 243Google Scholar.
103 See the Ecclesiastical Jurisdiction Measure 1963, s 6(1)(a)(b).
104 Ibid , s 7(1)(b).
105 Ibid , s 10(1).
106 Re Blagdon Cemetery at para 23.
107 Ibid at para 22.
108 The court says: ‘Briden Ch correctly so certified in this case’. See also Re St Alkmund, Duffield [2013] Fam 158 at paras 18–34.
109 Hill, C, ‘A note on the theology of burial in relation to some contemporary questions’, (2004) 7 Ecc LJ 447–451 at 447Google Scholar: ‘This note is a slightly expanded version of my Note for the Court. The expansion largely concerns matters to do with the re-use of graves’.
110 Re Blagdon Cemetery at para 22.
111 See Re Sam Tai Chan at para 17.
112 Re Blagdon Cemetery at para 23.
113 Ibid at para 24.
114 Hill, ‘Note on the theology of burial’, p 451. See also Petchey, ‘Exhumation reconsidered’, p 133, n 28. Indeed, in some of the Greek islands bodies are only buried for a limited period before being exhumed and the bones placed in specially built tombs; this suggests that a more relaxed attitude to exhumation is also compatible with Greek Orthodox doctrine.
115 At the conclusion of the ‘Forms of prayer to be used at sea’ in the Book of Common Prayer. See Re Christ Church, Alsager at para 147 G–H.
116 Re Sam Tai Chan at para 27.