BURIAL
Suicides
It is well known that Shakespeare's Hamlet is set in Denmark. It is less well known that the law that Shakespeare envisages as applicable to Ophelia's suicide is the law of England.Footnote 1 This seems to have been pointed out first by Rocellus Guernsey in a paper delivered to the Shakespeare Society of New York in 1885.Footnote 2 The argument between the two grave diggers in Act V, scene 1, is based on the question whether Ophelia had committed suicide and seems to be a skit on the legal argument in Hales v Petit. Footnote 3 The reference to the grave being made ‘straight’ refers to the fact that in parts of England the graves of suicides were dug ‘crooked’ (often north–south) rather than the traditional east–west, and the ‘crowner’ is the coroner whose inquest decision as to whether or not the death was a suicide was binding upon the clergy. Only if the death was not suicide was the deceased entitled to ‘Christian burial’ – that is, with the saying of the Office of the Dead.
Canon 68 of the Canons Ecclesiastical 1603Footnote 4 only forbade the Christian burial of those excommunicates who died unrepentant,Footnote 5 but prior to the Reformation others too were forbidden Christian burial by the canon law: namely, suicides, usurers, schismatics, heretics and unbaptised children.Footnote 6 However, after the Reformation only the canon law in relation to excommunicated persons, suicides and the unbaptised survived.Footnote 7 These categories of persons were then incorporated into the first rubric of the Book of Common Prayer before the Burial Service: ‘Here it is to be noted, that the Office ensuing is not to be used for any that die unbaptized, or excommunicate,Footnote 8 or have laid violent hands upon themselves.’Footnote 9 However, that rubric only reflected, and confirmed, the canon law.Footnote 10
The law relating to the burial of suicides is very ancient and pre-dated the Council of Braga (563), which forbade the burial of any person who commits suicide.Footnote 11 This was modified in England in the Penitential of Egbert, Archbishop of York, in about 750, by the addition of the words ‘if they do it by the instigation of the Devil’, and by about 960 the word ‘voluntarily’ had also been inserted into this limitation.Footnote 12 Gratian's Decretum states that the procession to the grave of a suicide should not be accompanied with the singing of psalmsFootnote 13 and this lack of ceremony is reflected in Hamlet when the prince sees Ophelia's funeral procession (Act V, scene 1). Hamlet's exclamation about the ‘maimed rites’ is a reference to the general lack of ceremony and the ‘great command’ is, of course, that of the coroner.
The mode of burial for those who took their own lives seems to have differed in various parts of the country. If the coroner had decided that the deceased had been insane at the time of death, the burial had to be in the churchyard with the Office of the Dead being said or sung. Otherwise, the burial was at the direction of the coroner, who in some cases had suicides buried in churchyards. A different form of burial was at a crossroads with the body pinned to the earth by an iron pointed stake; there was no religious ceremony and passers-by would cast stones at the grave.Footnote 14 By section 1 of the Act to alter and amend the Law relating to the Interment of the Remains of any Person found Felo de se 1823, the coroner was no longer permitted to direct that a suicide should be buried in a public highway but instead had to give directions for a private interment in a churchyard or public burial ground; no stake was to be driven through the body and the interment was to take place between the hours of 9 pm and midnight. Section 2 then made it clear that the Act did not authorise the performing of any of the rites of Christian burial in relation to such burials and that ‘the laws or usages relating to the burial’ of suicides otherwise remained unaltered. It was irrelevant whether the ground was consecrated. The reason for the lack of any religious ceremony in these cases was explained by Sir John Nicholl in the case of Kemp v Wickes:
Suicides are supposed to die in the commission of mortal sin, and in open contempt of their Saviour and of his precepts; to have renounced Christianity; to have unchristianized themselves; that is the view the law takes of the persons who are self-murderers.Footnote 15
The Burial Laws Amendment Act 1880 permitted those other than Anglican clergy to take Christian services in Church of England churchyards and, in practice, such services might be in relation to suicides. In addition, section 13 provided:
From and after the passing of this Act, it shall be lawful for any minister in holy orders of the Church of England authorised to perform the burial service, in any case where the office for the burial of the dead according to the rites of the Church of England may not be used,Footnote 16 and in any other case at the request of the relative, friend, or legal representative having the charge of or being responsible for the burial of the deceased, to use at the burial, such service, consisting of prayers taken from the Book of Common Prayer and portions of Holy Scripture, as may be prescribed or approved of by the ordinary,Footnote 17 without being subject to any ecclesiastical or other censure or penalty.
Nonetheless, section 14 made it clear that the Act did not authorise Anglican clergy ‘to do any act which he would not by law have been authorised or enabled to do’ if the Act had not been passed.Footnote 18
Thereafter, the Interments (Felo de se) Act 1882 made specific provision in relation to suicides. Section 3 made it clear that the provisions of the 1880 Act applied in such cases, although by section 4 nothing contained in the 1882 Act authorised ‘the performing of any of the rites of Christian burial on the interment of the remains of any such person [who committed suicide], or be taken to alter the laws or usages relating to the burial of such persons’. The marginal note made it explicit that section 4 was a ‘saving as to performance of Anglican rites’. Today the Prayer Book ((Further Provisions) Measure 1968, section 5, as amended by the Church of England (Worship and Doctrine) Measure 1974, provides that section 13 of the 1880 Act has effect
as if the reference to the said Office [for the burial of the dead in the Book of Common Prayer] included a reference to any form of service available for the burial of suicides and authorised by Canon of the General Synod or approved thereunder, and as if the words ‘consisting of prayers taken from the Book of Common Prayer and portions of the Scriptures were omitted.
As the rubric in the Book of Common Prayer merely repeated the general canon law, the same restrictions on the burial of suicides also apply, subject to the statutory provisions set out above, to any Common Worship burial service.
The present Canon B 38, paragraph 2,Footnote 19 having set out the minister's duty to bury any corpse or ashes ‘according to the rites of the Church of England’, continues:
except the person deceased have died unbaptized, or being of sound mind have laid violent hands upon himself, or have been declared excommunicate for some grievous and notorious crime and no man testify to his repentance; in which case and in any other case at the request of the relative, friend or legal representative having charge of or being responsible for the burial he shall use at the burial such service as may be prescribed or approved by the Ordinary, being a service neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential matter: Provided that, if a form of service available for the burial of suicides is approved by the General Synod under Canon B 2, that service shall be used where applicable instead of the aforesaid service prescribed or approved by the Ordinary, unless the person having charge or being responsible for the burial otherwise requests.
This, however, does not denote a change of doctrine, as much would depend on the actual content of the services so authorised.
Common Worship: pastoral services provides two prayers which it suggests may be used after a suicide.Footnote 20 These prayers (which in any event are not actually prayers for the deceased) are not authorised but are merely commended for use; they therefore cannot override the statutory and canonical provisions set out above in relation to the funeral of the deceased.Footnote 21 Nonetheless, the General Synod has not as yet authorised any service for use at the funerals of suicides.Footnote 22
The unbaptised
The provisions relating to the burial of the unbaptisedFootnote 23 (which includes those who are stillbornFootnote 24 ) are in many ways similar to those relating to the burial of suicides, save that the rather convoluted provisions of the Prayer Book (Further Provisions) Measure 1968, section 5, means that, in relation to the unbaptised, the ordinary alone has authority under the Burial Laws Amendment Act 1880 to prescribe or approve a funeral service.Footnote 25
As in the case of suicides, the reason for the exclusion of the unbaptised from burial with a burial service was that they were regarded as uninitiated into the Church.Footnote 26 Indeed, according to The Oxford Dictionary of the Christian Church, the doctrine contained in the Book of Common Prayer
preserved the traditional Catholic teaching [relating to baptism]. In the Orders for the Administration of Baptism it maintained the doctrine of Baptismal Regeneration, asserting that man is washed and sanctified with Holy Spirit, delivered from the wrath of God, received into the ark of Christ's Church, accorded remission of sins, and made heirs of everlasting salvation.Footnote 27
In spite of this, the service of Emergency Baptism and Common Worship: pastoral services state: ‘Parents … should be assured that questions of ultimate salvation or of the provision of a Christian funeral for an infant who dies does not depend upon whether or not the child has been baptized.’Footnote 28 The latter part of this note is not entirely accurate unless it is a reference to a specially approved service in accordance with Canon B 2, paragraph 2, and the statutory provisions set out above. However, the former part seems to be an indication of a change in doctrine.
The Burial Laws Amendment Act 1880, section 13 (as amended), permits the ordinary (in the case of the unbaptisedFootnote 29 ), and the General Synod (and, failing the General Synod or at the request of the deceased's relatives or legal representative, the ordinaryFootnote 30 ) in the case of suicides, to authorise, prescribe or approve special burial services. This statutory provision might be seen implicitly to permit both the General Synod and the relevant ordinary to approve services that are contrary to the previous doctrine of the Church of England; however, Canon B 2, paragraph 2, explicitly states that the service prescribed or approved by the ordinary must be ‘a service neither contrary to, nor indicative of any departure from, the doctrine of the Church of England’. This accords with the general law that it is only the General Synod that has authority to alter doctrine.Footnote 31 What is more,
A provisionFootnote 32 touching doctrinal formulae or the services or ceremonies of the Church of England or the administration of the Sacraments or the sacred rites hereof shall, before it is finally approved by the General Synod, be referred to the House of Bishops, and shall be submitted for such final approval in terms proposed by the House of Bishops and not otherwise.Footnote 33
Nonetheless, it is understood that the note referred to above in relation to the salvation of infants who die unbaptised was originally introduced into the proposed text of ‘Initiation services: service 3’ by the Revision CommitteeFootnote 34 in its passage through the General Synod and that the draft was finally approved for a limited period.Footnote 35 In the meantime the Liturgical Commission was asked to propose adaptations to the service for inclusion in the Alternative Service Book, although their only proposal was for the words ‘this child’ to be printed in italics. The Commission's Report thereafter noted that the House of Bishops had not made any amendments to their draft and it received final approval in July 1969 when the Archbishop of York made a declaration that the procedural requirements of Article 7 (including consideration by the House of Bishops) had been complied with.
In November 1979 motions were moved for the authorisation of the Emergency Baptism service, inter alia, to be included in the Alternative Service Book. Again, there was a declaration that the provisions in relation to Article 7 had been complied with although it is by no means clear whether any specific consideration was given to the relevant note or to any possible change of doctrine.Footnote 36 Nevertheless, whatever the niceties of synodical legislation, once the provision was included in Common Worship, the provisions of the Church of England (Worship and Doctrine) Measure 1974 would have regularised the matter even if, in fact, a change of doctrine had come about through the back door. This is because section 1(1) of the Measure enacts that: ‘It shall be lawful for the General Synod (a) to make provision by Canon with respect to worship in the Church of England, including provision for empowering the General Synod to approve, amend, continue or discontinue forms of service’. (The relevant provision in the ‘Notes to emergency baptism’ were provided in accordance with Canon B 4.Footnote 37 ) Section 4 then states:
(1) Every Canon or regulation making any such provision as is mentioned in section 1(1) of this Measure, form of service or amendment thereof approved by General Synod under any such Canon … shall be such as in the opinion of the General Synod is neither contrary to, nor indicative of any departure from, the doctrine of the Church of England in any essential form.
(2) The final approval by the General Synod of any … form of service or amendment thereof shall conclusively determine that the Synod is of such opinion as aforesaid with respect to the matter so approved.
Nevertheless, although section 4 may bring about legal finality, it cannot be right that a change in the doctrine of the Church of England may come about without complete transparency and acknowledgement.
Services at crematoria
An Anglican cleric is bound only to use those forms of service which are duly authorised or approved by Canon, except in so far as he or she may exercise the limited discretion permitted by Canon B 5.Footnote 38 Moreover, Canon B 1(2) provides: ‘It is the minister's responsibility to have a good understanding of the forms of service used and he shall endeavour to ensure that the worship offered glorifies God and edifies the people.’
Indeed, this obligation continues even when the cleric ceases to hold office in the Church of England or otherwise ceases to serve in any place;Footnote 39 it therefore applies to those who are retired or only hold a permission to officiate. In recent years this has come particularly to the fore in relation to clergy, often retired, taking funeral services at crematoria.Footnote 40 Apparently it is also often forgotten that it is illegal for a member of the clergy to officiate in any parish without the permission of the incumbent,Footnote 41 except where authorised to do so under specific statutory provisions.Footnote 42 It was for this reason that section 2 of the Church of England (Miscellaneous Provisions) Measure 1992 was required:
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(1) The performance of a funeral service in accordance with this section shall not require the consent or be subject to the control of the minister of the parishFootnote 43 in which it is performed;
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(2) The minister of a parish may perform a funeral service in any crematorium or cemetery situated in another parish if—
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(a) the deceased person dies in the first-mentioned parish; or
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(b) the deceased person was resident in the first-mentioned parish immediately before his death; or
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(c) the name of the deceased person was on the church electoral roll of the first-mentioned parish immediately before his death.
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Such a statutory authorisation cannot be delegated by the minister of the parish to any other person, even to a curate, as it is specific to that minister. It follows that any curate or person other than the minister of the parish (as so defined) requires the consent of the minister of the parish in which the crematorium is situated before performing a funeral service at that crematorium. That consent cannot be presumed, nor, moreover, can it be assumed that the funeral director has obtained the relevant consent. Unless falling within the above statutory provisions it is up to the cleric to ensure that the requisite consent has, indeed, been given.
Reverence
As has been seen, Canon B 1, paragraph 2, provides, inter alia, that the minister ‘shall endeavour to ensure that the worship offered glorifies God and edifies the people’. However, this is merely one aspect of the general duty under the canon law to ensure that all divine worship is reverent and seemly.Footnote 44 This is emphasised by the Burial Laws Amendment Act 1880, section 7, which enacts:
All burials under this Act, whether with or without a religious service, shall be conducted in a decent and orderly manner; and every person guilty of any riotous, violent, or indecent behaviourFootnote 45 at any burial under this Act, or wilfully obstructing such burial or any such service as aforesaid thereat, or who shall, in any such churchyard or graveyard as aforesaid, deliver any address, not being part of or incidental to a religious service permitted by this Act, and not otherwise permitted by any lawful authority,Footnote 46 or who shall, under colour of any religious service or otherwise, in any churchyard or graveyard, wilfully endeavour to bring into contempt or obloquy the Christian religion, or the belief or worship of any church or denomination of Christians, or the members or any minister of any such church or denomination, or any other person, shall be guilty of a misdemeanour.Footnote 47
This provision necessarily makes any verbal demonstration by Christians against any religious or non-religious burial – for example, carried out by adherents of a non-Christian religion (such as the Wicca) – illegal, at least if it takes place during the ceremony itself. Indeed, this would be likely to include the mere singing of hymnsFootnote 48 or even a prayer vigil or silent sit-in.
What is clear, however, is that what is reverent or irreverent alters from society to society and from generation to generation. For example, in Haw v Planner,Footnote 49 decided in 1666, it was determined that it was not an assault for a churchwarden to remove a man's hat worn during divine service; however, this is most unlikely still to be good law. On the other hand, in Gilbert v Buzzard,Footnote 50 Sir William Scott said:
In what way the mortal remains are to be conveyed to the grave, and there deposited, I do not find any positive rule of law, or of religion that prescribes. The authority under which the received practices exist to be found in our manners rather than in our laws – they have their origin in natural sentiments of public decency and private affection – they are ratified by common usage, and consent; and being attached to a subject of the gravest and most impressive nature, remain unaltered by private caprice and fancy, amidst all the giddy revolutions that are perpetually varying the modes of fashions that belong to the lighter circumstances of human life. That bodies should be carried in a state of naked exposure to the grave would be a real offence to the living, as well as an apparent indignity to the dead. Some involucra, or coverings, have been deemed necessary in all civilised and Christian countries …Footnote 51
Moreover, the rubric in the Book of Common Prayer immediately before the actual interment speaks of ‘the corpse [being] made ready to be laid into the earth’, and Stephens makes it plain that these words refer to the body being ‘stript of all but its grave attire’.Footnote 52 Indeed, it is thought that even in the present day to strip the body naked in the sight of those at the grave side or of passers-by would still be regarded as ‘a real offence to the living, as well as an apparent indignity to the dead’. For this reason the advice was recently given in the Diocese of Oxford that a minister should not permit such a stripping of the body at the grave side.
Strewing of ashes
Another question of reverence occurs in relation to the practice of strewing of ashes. Although the distinction is much misunderstood, in ecclesiastical law strewing is the pouring of the ashes directly into the ground, or directly onto the ground before immediately covering them over with earth, while scattering is the broadcasting of the ashes into the air or the casting of them onto the ground without thereafter covering them. The former is lawful, as long as long as it is reverently done, while the latter is illegal because of its intrinsic irreverence.Footnote 53 Canon B 38, para 4(b), states:
The ashes of a cremated body should be reverently disposed of by a minister in a churchyard or other burial ground in accordance with section 3 of the Church of England (Miscellaneous Provisions) Measure 1992Footnote 54 or on an area of land designated by the bishop for the purpose of this sub-paragraph or at sea.Footnote 55
Although the words ‘on an area of land’ might suggest that scattering is lawful, such a construction ignores the duty to dispose of the ashes ‘reverently’.Footnote 56 Indeed, the Convocation of York agreed in 1952:
That the ashes of a cremated body should be disposed of in consecrated or dedicated ground. This may be done: (a) by burial; (b) by strewing them reverently on the surface of the ground and covering them lightly with earth; (c) by enclosing them, after obtaining the necessary faculty, in a part of the church or other consecrated building set apart for the purpose.
To scatter ashes broadcast on either consecrated or unconsecrated ground without covering them is a method which may be unseemly or irreverent and cannot be recommended.Footnote 57
An act of synod, however, only has moral, and not legal, force and cannot overrule the actual words of the Canon.Footnote 58
Burial of ashes
It should also be borne in mind that, although the words ‘in accordance with section 3 of the Church of England (Miscellaneous Provisions) Measure 1992’ in Canon B 38(4)(b) might suggest that in other cases the ashes may be buried other than in a churchyard or other burial ground, the fact that the following sub-paragraph, namely Canon B 38(5), speaks specifically of the burial of a body in unconsecrated ground, and not of the burial of ashes, militates against such a construction. The words ‘other burial ground’ are not defined in the Canon but they must be interpreted ejusdem generis with the word ‘churchyard’ and therefore imply ground specifically set aside according to law.Footnote 59 Ashes must therefore be interred in a churchyard or burial ground. Nevertheless, and in spite of Canon B 38(5), burial in non-consecrated ground should only occur in exceptional circumstances.Footnote 60
Burial of bodies
Although the burial of ashes is specifically restricted to burial ‘in a churchyard or other burial ground’ by Canon B 38(4)(b), there is no such restriction on the burial of bodies. It is true that Canon B 38(2) imposes a duty on every minister to bury the corpse or ashes of specified persons which are brought ‘to a church or burial ground or cemetery under his control’, that does not prevent the cleric from burying a body elsewhere as long as it is according to the rites of the Church of England and the officiating minister first blesses the grave space.Footnote 61
EXHUMATION
Exhumation and coroners
As has been seen, the coroner's decision whether the deceased committed suicide is binding on the clergy. This is the ‘great command’ referred to by the First Gravedigger in Hamlet. The coroner had a common law power within a reasonable time after death to order the disinterment of a body, either for an original inquest or where a fresh inquest was necessary. If the inquest was quashed by a superior court, that court also had the power to order exhumation of the body.Footnote 62 Indeed, in R v Saunders Footnote 63 and in Anon Footnote 64 it was decided that, with the leave of the court, a coroner could order a disinterment for a fresh inquest. It has been suggested that these decisions were inconsistent with the positive terms of section 25 of the Burial Act 1857, which then read:
Except in the cases where a body is removed from one consecrated placeFootnote 65 of burial to anotherFootnote 66 by faculty granted by the ordinary for that purpose, it shall not be lawful to remove any body, or the remains of any body, which may have been interred in any place of burial, without licence under the hand of one of Her Majesty's principal Secretaries of State, and with such precautions as such Secretary of State may prescribe as the condition of that licence; and any person who shall remove any such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal, shall, on summary conviction … forfeit and pay for every offence a sum not exceeding level 1 on the standard scale.Footnote 67
On the other hand it has also been suggested that the coroner's power was inferentially preserved by section 6 of the Coroner's Act 1887, which provided that, where the High Court of Justice orders an inquest to be held or quashes an inquest already held, it was unnecessary upon such an inquest to view the body unless the court ordered otherwise.Footnote 68 However, the coroner's jurisdiction at common law has now been replaced by statutory powersFootnote 69 and Jervis on the Office and Duties of Coroners acknowledges that ‘it is not clear how far these new provisions take away the need for a faculty under ecclesiastical law where the body in question lies in consecrated ground’.Footnote 70 Nevertheless, the learned editors continue:
The statutory scheme for the Secretary of State's licence was held not to take away the need for a faculty under the ecclesiastical jurisdiction,Footnote 71 but the purpose of the coronial power is very different, and often needs to be exercised urgently. It would be stultified if, where a body is buried in consecrated ground needed to be exhumed for coronial purposes, it was necessary in addition to obtain the coroner's order to obtain a faculty as well.Footnote 72
However, this argument ignores the speed with which an interim faculty can be granted when required and merely assumes that the ‘very different’ coronial requirement must somehow overcome the ecclesiastical requirement. Nonetheless, although it is unlikely that in practice there will be any real conflict between the coroner on the one hand and a diocesan chancellor exercising the faculty jurisdiction on the other,Footnote 73 it may be argued that this has finally been set to rest by the recent substitutionFootnote 74 of a new section 25 which confirms that a criminal offence is committed if a faculty is not obtained in the requisite circumstances:
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(1) It is an offence for a body or any human remains which have been interred in a place of burial to be removed unless one of the conditions listed in subsection (2) is complied with.
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(2) The conditions referred to in subsection (1) are:
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(a) the body or remains is or are removed in accordance with a faculty granted by the court;
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(b) the body or remains is or are removed in accordance with the approval of a proposal under the Care of Cathedrals Measure 2011 (No. 1) by the Cathedrals Fabric Commission for England or a fabric advisory committee;
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(c) unless the body or remains is or are interred in land which is subject to the jurisdiction of the court or its or their removal requires or require the approval of a proposal under the Care of Cathedrals Measure 2011, the body or remains is or are removed under a licence from the Secretary of State and in accordance with any conditions attached to the licence.
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(3) A person who removes a body or remains in contravention of subsections (1) and (2) is liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.
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(4) In subsection (2)(a) and (c) ‘court’ means the consistory court of the diocese or, in the diocese of Canterbury, the commissary court of that diocese or any other court or body referred to in section 1(2) or (3) of the Ecclesiastical Jurisdiction Measure 1963 having jurisdiction to determine the matter.
What amounts to exhumation?
In Hamlet, while Ophelia's grave was being dug the gravediggers came across two skulls, the second of which prompted Hamlet to exclaim: ‘Alas, poor Yorick, I knew him, Horatio, a fellow of infinite jest, of most excellent fancy’ (Act V, scene 1).Footnote 75 There is no question in the play of the coroner having ordered an exhumation, and the faculty jurisdiction did not then exist, but was there truly an exhumation? In any Church of England churchyard that has been in use for a long period of time there is always the likelihood of coming across the bones of those previously buried. Does this mean that, whenever a grave is dug in an ancient graveyard, a faculty must be sought in case any human remains are inadvertently discovered? In All Saints, Brightlingsea Footnote 76 Chancellor Pulman QC said:
If the sexton digging a grave comes across a human bone and moves it, he is conducting an ‘exhumation’. For this he requires a faculty. It might be said that movement of a hair, or a fingernail was so slight as not to be recognised by the law. But a human bone, however small, does not come within this category.
This is really a question of how the legal maxim de minimis non curat lex Footnote 77 should be applied, and its application must depend upon all the circumstances of the case. Certainly in Re Strood Cemetery Footnote 78 Chancellor Goodman was of the view that ‘partial displacement within a grave of previously buried remains [is] de minimis when preparing for a subsequent burial in the same plot, even if the displaced remains need to be laid on the surface prior to reburial’. Similarly, in St Mary, White Waltham,Footnote 79 Chancellor Bursell QC said:
Any priest or sexton is only too aware that in the digging of graves in old churchyards human remains may be – and frequently are – inadvertently disturbed. In such cases no order for exhumation is obtained and what occurs is in my view embraced within the legal principle that the law is not concerned with very minor matters …
Although two skulls were disturbed in Hamlet, common sense seems to suggest that their original disturbance would not require a faculty, although the subsequent handling of one of them by Hamlet himself might have done.
Much must depend not only on circumstances but also on the intention relating to the exhumation itself.Footnote 80 There is clearly a difference between the disturbance of human remains known, or likely, to exist (even if only to take a small body sample for investigatory purposes) and the brief setting aside of body parts discovered accidentally. On the borderline, perhaps, is the case of Re All Saints, Beckley,Footnote 81 where a retrospective faculty was granted when a son's ashes were moved while preparing the plot for the burial of his mother's body; however, the ashes were known to be in the grave before the re-excavation of the grave began.
Earth to earth, ashes to ashes, dust to dust
The burial services themselves implicitly accept that bodies decompose in the earth, at least in many instances.Footnote 82 Once the body has decomposed (at least in the main), the ecclesiastical law recognises that the grave may then be reused. What is the position in a local authority cemetery if the body has not decomposed? Consecrated land within a local authority cemetery is, like that in a churchyard, protected by the jurisdiction of the consistory court.Footnote 83 However, Regulation 7a of the Cemeteries Rules and Regulations issued by Oxford City Council (no doubt similar to the regulations issued by many other local authorities) makes it clear that no-one has an exclusive right of burial:
After a death has occurred, any person may purchase the Exclusive Right of Burial in a grave space in any section of a cemetery for a period of 50 years, provided such section has been opened for burial and there is suitable space remaining. The appropriate fee must be paid at the time of making the funeral booking. The grant may be renewed thereafter for periods of 25 years up to a total of 100 years on payment of each renewal within the final 5 years of the period of such grant.
In spite of this, the jurisdiction of the consistory court is also recognised by Regulation 26:
No body shall be removed from a cemetery for any purpose whatsoever except on the order of a Coroner, Court of Summary Jurisdiction or a Chief Constable. No body or cremated remains shall be exhumed without the consent of the Secretary of State, Department of Justice and/or the Faculty of the Bishop of the Diocese of Oxford …
In these circumstances what is the position if the local authority wishes to grant an exclusive right of burial in a grave space within consecrated ground previously granted to some other person but whose grant has expired? If the body has not decomposed, a faculty is required for exhumation but can the previous owner of the grant appeal to the court's duty to protect the remains in the consecrated ground? Equally, what is the position of the court if the owner of an exclusive right of burial deliberately allows the right to expire so that the remains can be transferred elsewhere? Would this be another example of what was called in Re Christ Church, Alsager Footnote 84 an ‘improper motive, e.g. serious unreasonableness’? Can, or should, the court so exercise its jurisdiction as to prevent exhumation whether or not the local authority opposes the exhumation? Whatever the answer may be, it will inevitably throw light on the restrictions to the court's protection of human remains in consecrated ground.
Family graves
In Re Matheson Footnote 85 the consistory court permitted the remains of a husband to be removed from a consecrated churchyard in order to be cremated and his ashes placed with those of his widow in accordance with the latter's wishes. Although this case was not quoted in Re Blagdon Cemetery Footnote 86 the wishes of the deceased's relatives there were also ‘essentially to bring [the deceased's] remains to a family grave’, the judgment continuing:
The concept of a family grave is, of course, of long standing. In a less mobile society in the past, when generations of a family continued to live in the same community, it was accepted practice for several members of a family to be buried in one grave …
Burials in double or treble depth graves continue to take place at the present time. They are to be encouraged. They express family unity and they are environmentally friendly in demonstrating an economical use of land for burials. Normally the burial of family members in the family grave occurs immediately following the death of the particular member of the family, whereas in this case [the deceased's] remains will have to be disturbed after many years in order to inter them in a new family grave.Footnote 87
The court allowed the appeal and granted a faculty for exhumation saying:
In so doing it should not be assumed that whenever the possibility of a family grave is raised a petition for a faculty for exhumation will automatically be granted. As in this case it is to be expected that a husband and wife will make provision in advance by way of acquisition of a double grave space if they wish to be buried together. Where special circumstances are relied upon in respect of a child who has predeceased his or her parents, it will be insufficient if there is simply a possibility of establishing a family grave. As in this case there would have to be clear evidence as to the existence of the legal right to such a grave if no family member was already buried in it.Footnote 88
This latter point does no more than emphasise the duty on the court to ensure that the exhumed remains will be reburied in a location where it is unlikely thereafter to be disturbed. Nevertheless, it may be of some concern that one of the matters taken into consideration by the court was the fact of the deceased's parents lack of a permanent home at the time of the unexpected death.Footnote 89 Why in human terms should there be a difference between the lack of a permanent home (in this case caused by the parent's choice of job) and the grieving parent who has to leave an original home on more than one occasion either because of a change of a spouse's job or by reason of his or her growing physical or mental incapacity? Although the prospect of ‘portable remains’ being involved in multiple movesFootnote 90 may be unedifying, is there any real difference (other than the fact that there has fortuitously been only one burial) between the different set of facts? In either case the permanence of the original burial at least is inevitably compromised.
The cases of Alsager and Blagdon
Right-thinking members of the Church at large
It seems that the case of In re Christ Church, Alsager Footnote 91 was the first reported appeal case involving an exhumation and it was decided at a time when there was an increasing number of cases concerning caskets containing cremated remains.Footnote 92 The court emphasised that the norm is that, once a body or ashes has or have been interred in consecrated ground, there should be no disturbance of the remains save for good and proper reason but it then went on to summarise the test for the chancellor as: ‘Is there a good and proper reason for exhumation that reason being likely to be regarded as acceptable by right thinking members of the Church at large.’Footnote 93
This test was severely criticised by Philip Petchey in an article in this Journal on the ground that the court did not explain how the views of right-thinking members of Church at large are to be ascertained.Footnote 94 This criticism was endorsed by the Court of Arches in Re Blagdon Cemetery, which said:
Both Mr Hill and Mr Petchey have argued in this Court that the reference to right thinking members of the Church at large is an extremely difficult test to apply in practice. The Chancellor may consider that evidence ought to be taken on the matter. It could then transpire that there are various different views which are honestly and rationally held upon the subject of exhumation. If the Chancellor does not take evidence, then an assumption has to be made as the notional views of right thinking members of the Church at large. For a petition the test may give the impression that mustering support for the petition is the way to persuade the Court that exhumation would be acceptable within the notional body of right thinking members of the Church at large for the reason relied upon in the petition.Footnote 95
However, as has been pointed out in Re Sam Tai Chan,Footnote 96 the civil courts have had no difficulty in applying the approach of the equally notional man on the Clapham omnibusFootnote 97 or of the right-thinking members of society, the officious bystander, the reasonable landlord and the fair-minded and informed observer,Footnote 98 and it is unclear why ecclesiastical courts should have greater difficulties in similar circumstances. Nevertheless, another criticism might have had greater force: namely, that a better test would be related to right-thinking Anglicans rather than all Christians. Indeed, such a hypothetical test has since been applied in the case of Sam Tai Chan.Footnote 99
Theology
In Alsager, at first instance the archdeacon gave evidence ‘as to the basic theology contained in and reflected by the funeral service of the Anglican Church’.Footnote 100 In the judgment, having pointed out that the chancellor had certified in accordance with Rule 3(5) of the Ecclesiastical Jurisdiction Measure 1963 that the appeal did not involve a question of doctrine, ritual or ceremonial, the court said:
This certification seems to us to of particular importance in this case as it underlines the fact that the evidence of the archdeacon, although concerned with the theology of burial, did no more than emphasise in addition to the pastoral side of burial services that the committal of mortal remains is of substantial importance.Footnote 101
Of course, the basic theology contained in, and reflected by, the Anglican burial services may be different from the theology surrounding a subsequent exhumation. In the Alsager case, no such possibility could be, or was, addressed, because to have done so would have lain outside the court's jurisdiction.
Which appellate court decides doctrine?
A problem may also arise on appeal, as at first instance the consistory court has jurisdiction to hear – and therefore is under a duty to consider, however brieflyFootnote 102 – any question of doctrine, ritual or ceremonial that is raised in a faculty case.Footnote 103 However, the Arches and Chancery Courts specifically have jurisdiction ‘in causes of faculty not involving matter of doctrine’.Footnote 104 This jurisdiction is given instead to the Court of Ecclesiastical Causes Reserved.Footnote 105 In these circumstances it might at first sight seem surprising to find a heading in Re Blagdon Cemetery entitled ‘Exhumation: theology of burial’.Footnote 106 Nonetheless, the diocesan chancellor had certified that the appeal did not involve a question of doctrineFootnote 107 and the Arches Court was, or may have been, under a duty to satisfy itself that this was correct.Footnote 108
However, the appeal court in Blagdon arguably went further than its jurisdiction allowed. Not only did the Dean of the Arches ask the then Bishop of Stafford, the Rt Revd Christopher Hill, to provide a paper on the ‘Theology of burial’Footnote 109 but the court said: ‘we consider that a summary of the theological principles can be usefully stated here as to promote a better understanding of the theological reason for the approach taken by the Consistory Courts to applications for exhumation from consecrated land’.Footnote 110 Even if the appeal did not involve a question of doctrine, this seems to be a clear attempt by the Arches Court itself to decide on a matter of doctrine when the correct forum to make such pronouncements is the Court of Ecclesiastical Causes Reserved. This being so, its consideration by the Arches Court was ultra vires.Footnote 111
By reason of the fact that the bishop was only asked by the Dean of the Arches to produce a paper on the theological aspects of burial, he was not a witness before the court and he was therefore not cross-examined on its contents. No doubt, if either counsel had wished to challenge the bishop's conclusions, the bishop would have been made a witness of the court but the appellant clearly had no interest in challenging those conclusions and it was unlikely that the amicus curiae would do so in the circumstances. In fact, in its judgment the Arches Court, having quoted only two passages from that paper,Footnote 112 summarised the bishop's opinion (apparently with approval) ‘that a reluctance by the Consistory Court to grant faculties for exhumation is well grounded in Christian theology’.Footnote 113
The precise contents of the bishop's paper were not made available in the judgment. The article published in this Journal was an expanded version of that paper. Nevertheless, the article makes it clear that a much more relaxed attitude to exhumation is current in Venice and is therefore likely to be compatible with Roman Catholic doctrine.Footnote 114 This being so, the summary of the bishop's paper seems unlikely to reflect ‘Christian theology’ as a whole. In addition, the paper does not consider (at least expressly) the effect on burial at sea on any possible Anglican theology of burial or exhumation.Footnote 115 The relevant rubric states:
The Office in the Common Prayer-book may be used; only instead of these words [We therefore commit his body to the ground, earth to earth, etc] say,
We therefore commit his body to the deep, to be turned into corruption, looking for the resurrection of the body, (when the Sea shall give up her dead,) and the life of the world to come, through our Lord Jesus Christ; who at his coming shall change our vile body, that it may be like his glorious body, according to the mighty working, whereby he is able to subdue all things to himself.
Although exhumations are virtually impossible after the committal of a body or ashes into the sea, the fact that currents and fish are likely to impinge upon the location and state of the body or ashes must to an extent affect the concept of the permanence of what has taken place.
CONCLUSION
In any event, Jesus’ commandment to love our neighbours as ourselves (Matthew 22:39, Mark 12:31) must be relevant to any consideration of such questions as mistake and the medical consequences for the living whether for or against exhumation.Footnote 116 It is here that ‘the poison of deep grief’ referred to by King Claudius in Hamlet (Act IV, scene 5) has its greatest relevance in the exercise of the chancellor's discretion in exhumation cases. Shakespeare's knowledge of the human condition was at least as good as his knowledge of the law concerning the burial of suicides.
