The building and land of the former Holy Cross Church had been sold, to be operated as a children's nursery, including the memorial garden, in which there were 107 recorded sets of ashes (referred to by the portmanteau term ‘cremains’) in 96 plots. Records did not indicate whether any particular set of cremains had been interred in an urn, by pouring into a particular site or by scattering; all three methods had been used. The sale agreement required the diocese to remove the cremains; the diocese had identified a site in the grounds of another church in Glasgow for the creation of a new memorial garden. The proposal was to remove 7.5 cubic metres of soil and material from the memorial garden to ensure that all areas with definite evidence of cremains would be included. Relatives had been informed, and none had objected. The diocese sought two orders in the alternative. Crave One was for a declarator that all processes of disintegration had occurred at the memorial garden and no warrant to disinter cremated remains was required for the disinterment of those remains. Crave Two was for a warrant to disinter the cremains.

As a matter of law, there is no requirement for a warrant to disinter bodies if the process of disintegration has occurred. In Steel v St Cuthbert 1891 18 R 911 it had been established by evidence that this process could be expected to take eight to ten years. The application of this test to cremains was difficult; cremation can include cremulation (grinding) and other processes, such that there may be no further process of disintegration. However, the court had to be able to exercise some measure of control over their disinterment, given the requirement for reverence, dignity and respect which the court takes into account in exercising its discretion. Accordingly, any intention to disinter cremains should involve an application to the court. There was no authority for the court's approach in such a case but a parallel could be drawn with the disinterment of coffins. In such a case, the remains are sacred wherever they are interred, and so a grave is protected against disturbance, at least until the process of disintegration is complete. There are two exceptions to the rule: if there are considerations of necessity or high expediency; or if the burial was in ground where there was no right of burial. In other cases, an application to the court may be made, but the applicant would have to show cause greater than a matter of convenience (such as burial in the wrong grave, or the wish of the family of a foreigner buried in Scotland to return remains to the deceased's own country).

In the present case, the contractual obligation on the diocese to remove the cremains was relevant, but could not constitute any self-imposed necessity such as to effectively oust the role of the court. The court concluded nevertheless that there was a necessity or high expediency in disinterring the cremains so that they could be re-interred with decency and respect in the new memorial garden. Declarator as sought in Crave Two was granted. [David Willink]