While there are very few taboos left in UK society, suicide is still considered one of them. It is a very controversial subject – one that, when forced to address, people experience a great deal of unease about, and this has historically led to society viewing those who choose to end their lives with hostility and fear. This hostility has long been reflected in the civil law, which until 1961 condemned suicide as homicide (and thus classed as a criminal offence) and the Church's position, which historically considered suicide to be a mortal sin.
There has been an increased interest in suicide and suicidal behaviour in recent years. This may in part be due to the rapid increase since the mid-1970s in suicides committed by young people.Footnote 1 Statistics showing the number of people who have attempted or committed suicide are notoriously difficult to determine accurately. This is because there has been a history of underreporting: historically, coroners and doctors interpreted deaths generously because suicide was deemed a criminal offence. It is also possible that suicides committed by the elderly may be underreported because it is deemed that they were confused or made a mistake.Footnote 2 In cases where suicidal intent cannot be determined beyond all reasonable doubt, an open or accidental verdict will often be returned.Footnote 3
The latest information available from the Office for National Statistics (ONS) shows that there were 6,122 suicides recorded for people over the age of ten in the United Kingdom in 2014.Footnote 4 The trends show that suicide rates have generally been on the increase since 2008. It is also worrying that the statistics for previous years were recorded for individuals aged 15 or over, whereas the 2014 data is now taking into account children of 10 years of age. For males within the United Kingdom, after motor vehicle accidents, suicide is the most common cause of death in 15–34-year-olds.Footnote 5 Thus, suicide is an important issue that needs to be addressed.
Attempts have been made in recent years to consider suicide and attempted suicide from different angles: Williams looked at it from a psychological angle; Hillman addressed the psychiatric aspects of suicide; and numerous works deal with the historical development of the law and society's attitudes towards suicide.Footnote 6 However, little has been written about the legal stance adopted by the Church of England in relation to those who have taken their own lives, and its implementation. For example, Hill's book on Ecclesiastical Law is nearly silent and Doe's Legal Framework of the Church of England does not analyse the Church's position in detail.Footnote 7 A review of how the canon law reached its present position, a critique of this position and options for reform are all needed.
HISTORICAL DEVELOPMENT
The historical development of the canon law relating to the burial of suicides in England and Wales is complex. It developed in conjunction with the secular law, and was influenced by the theological thinkers, philosophers and lawyers of the day. Any study of the development of the law relating to suicide would not provide the entire picture if it did not consider all these aspects of its development and how they interrelate.
Early attitudes towards suicide
The starting point for determining Christian attitudes towards suicide is the Bible. Commentators suggest that there are at least eight references to suicide in the Bible.Footnote 8 These include: Abimelech (Judges 9:54), Samson (Judges 16:30), Saul (1 Samuel 31:4), Achitophel (2 Samuel 17:23), Zimri (1 Kings 16:18), Ptolemy Macron (2 Maccabees 10:13), Razias (2 Maccabees 14:41–46) and Judas (Matthew 27:5). It could also be argued that Jephtha's daughter, in returning to her father knowing that she was about to be sacrificed to God, was committing suicide (Judges 11:39).Footnote 9
While the Bible does not explicitly set out a penalty for those who have committed suicide, or expressly condemn suicide as a sin, attitudes towards an individual's death can be implied from the language used. For example, Samson's and Razias’ deaths can be described as the heroic deaths of those instructed by God.Footnote 10 In comparison, the deaths of Abimelech, Achitophel, Saul, Zimry and Judas can be interpreted as ‘the Bad End of a sinner’.Footnote 11 Nor does the Bible set out rules detailing how a suicide's body should be buried. In the case of Saul, although the Philistines initially condemned Saul's body to the public humiliation due to an enemy, his bones were eventually buried under an oak tree in an act of worship.Footnote 12 It is therefore necessary to turn to other sources in order to identify rules governing how suicides should be buried.
For the last three centuries BCE, there is very little commentary on attitudes towards suicide or how those who have ended their own lives should be buried. Some Greek philosophers did condemn suicide. For example, Pythagoras compared suicides with soldiers who deserted their posts, Socrates stated that people were only permitted to take their own lives if given ‘divine permission’ and Aristole condemned suicide as being an injury to the state.Footnote 13 The position of these philosophers can be compared with the Stoic and Epicurean writers, who indicated that suicide was justified if someone was suffering unremitting pain, as part of a noble act, or as an act of political or philosophical principle.Footnote 14
The first serious indication that moral attitudes towards suicide were changing was with the writings of St Augustine (354–430). Augustine considered in detail whether there were any circumstances in which suicide was permitted. He concluded that suicide could never be condoned because an individual who commits suicide cannot repent of their actions; it is a violation of the sixth commandment ‘Thou shalt not kill’, and it is aggravated by the fact that the person killed has done nothing worthy of death. However, Augustine did accept that there were some very limited exceptions: at the time he was writing some had taken their lives and were recognised as martyrs. He explained that in such cases, for example, that of Samson, it was following a divine intervention and this was an exception that was permitted.Footnote 15 His writings mark a new phase in the development of the doctrines of suicide in the Christian West, and his influence over Christian writings on the matter can be seen in the views adopted by later writers, particularly in the later Middle Ages.Footnote 16
Secular law
Harsh penalties have long been imposed upon the families of those who committed suicide. However, it is not clear when such penalties were first imposed and it is difficult to trace the early and mediaeval laws and practices relating to suicide because there are limited statements on suicide in the early legal treatises, and those rules were not always adhered to in practice.Footnote 17
Early Roman law recognised suicide as a right for free citizens.Footnote 18 It did, however, punish some suicides. For example, criminals accused of certain crimes, such as treason, who committed suicide would have their property confiscated.Footnote 19 Furthermore, a soldier's suicide was considered the equivalent to desertion, which was punishable by death, and so a failed suicide attempt resulted in the soldier being put to death.Footnote 20
By the Middle Ages, suicide was seen as a crime in the eyes of the English secular law. The English jurist Bracton (writing in the mid-thirteenth century) stated that ‘just as a man may commit felony by slaying another so may he do so by slaying himself’.Footnote 21 The mechanism for discovering and punishing suicides in mediaeval England was through the coroner's jury. An inquest was conducted on the body of anyone who died in suspicious circumstances, and a jury reached a verdict on how the individual died.Footnote 22 Juries returned a verdict of felo de se (a felon concerning himself) for those whom they considered sane, or non compos mentis (not of sound mind) for someone who was insane.
Pollock suggests that, before Henry III, the law intervened in the case of suicides only to punish criminals who killed themselves in order to avoid facing a worse fate, and this was later broadened to include other suicides.Footnote 23 Bracton states that, where a felon committed suicide ‘in fear of the crime that hangs over him’, his heirs would be disinherited and his goods confiscated, ‘because of the felony previously committed’.Footnote 24 In comparison, he considers that the inheritance of those who committed suicide when they were not accused of a crime or those who were considered mad or mentally incompetent would not be forfeit to the Crown. However, Bracton's theories have recently been brought into question. It appears that in practice, although chattels of some suicide victims were forfeit at the end of the twelfth century, it was not until the 1230s that the rules relating to the treatment of suicides were established. Furthermore, in direct contrast to the rules set out by Bracton, in practice it appears that rules adopted by the justices were that the chattels of all suicides (regardless of their gender or whether they were insane or sane) were forfeit and their land reverted to the Crown.Footnote 25
There were a number of developments that had a significant influence on attitudes towards those who had taken their own lives. A key factor was the medical advances made between 1840 and 1880. During this period the favoured medical opinion gradually changed so that insanity was considered a physical disease that could affect an individual's emotions even if their intellect was unimpaired. Following this argument, even though a person's reasoning faculties appeared sound, they could still be insane and not responsible for their actions. For this reason, by the late nineteenth century, the very act of suicide was often considered to indicate that the individual was suffering from insanity.Footnote 26 This can be compared with the M'Naghten case of 1843. In that case, their Lordships stated that, when insanity was raised as a defence to a criminal charge, the jury was to be told in all cases that ‘every man is to be presumed to be sane, and to possess a sufficient degree of reason to be responsible for his crimes, until the contrary be proved to their satisfaction’.Footnote 27
Another influence was the emergence of the crime of attempted suicide during the mid-nineteenth century. In previous centuries, while completed suicide had been against the law, there had been no legal provision for those who attempted to commit suicide. From the eighteenth century the authorities sought to prevent harm to those at risk of killing themselves by sending those who had attempted suicide to remand prison or asylum. By the 1850s the courts recognised the crime of attempted suicide and by the end of the century those who had attempted suicide were arrested if caught and occasionally tried.Footnote 28
It was not until the Suicide Act of 1961 that the crime of self-killing was decriminalised, when Parliament repealed the common law felony of self-murder.Footnote 29
Ecclesiastical law
From the Middle Ages, suicide was considered a mortal sin in the eyes of the Church, and self-murderers were therefore denied a Christian burial. Different territories developed different customs for the disposal of the corpse of a suicide victim. In England and Wales, following the inquest by the coroner's jury, the body was often carried to the crossroads at night and thrown into a pit with a stake hammered through the body.Footnote 30
The first Western canons relating to suicide date from 533 and 561. They state that clergy should refuse to accept offerings for those who have taken their own lives, nor should their bodies be buried with psalms being said at the burial.Footnote 31 Under the first canons, those who committed suicide were subjected to the same treatment as criminals. It is likely that, as a result of this, a stigma became attached to the act of suicide.
Turning specifically to England, in 672 the Council of Hereford adopted a canon denying normal funerals and burials to suicides, and this position was reiterated in a canon dated around 1000, which stated that it was unlawful to celebrate mass or bury the body of someone who had taken their own life with hymns and psalms.Footnote 32 Here it is those who have laid violent hands upon themselves voluntarily who are to be denied a Christian burial, whereas the term ‘voluntarily’ is not mentioned in the first canons. Richard Burn, writing in 1763, clarifies this distinction. He suggests that there was a difficulty for clergymen when having to make a distinction between those who had committed suicide voluntarily and those who did so ‘from an insane mind’. It is possible therefore that these early canons differentiate between those who were of ‘unsound mind’ when committing suicide, meaning that the act was not committed voluntarily, and those who were of ‘sound mind’ and thus committed the act voluntarily.
The rubric in the Order for the Burial of the Dead in the 1662 Book of Common Prayer addresses the issue of the funeral rites to be given to those who have committed suicide. It prohibits the use of the Burial Office, with its assurances of salvation and resurrection, for ‘any that die unbaptized, or excommunicate, or have laid violent hands upon themselves’.Footnote 33 This rubric does not provide an exception for those being of ‘unsound mind’, which has led some commentators to ask whether it was intended that a Christian burial was to be denied to all those who had ‘laid violent hands upon themselves’, regardless of their state of mind at the time they committed the act.Footnote 34
Edmund Gibson, writing in 1730, stated that a minister could not refuse to bury any corpse that was brought to the church, except where (among other reasons) the deceased had ‘laid violent Hands upon himself’. Gibson did not say that those judged to be of ‘unsound mind’ should be given a Christian burial. This suggests that he did not consider there to be a distinction in relation to Christian burial between those judged to be of ‘sound’ or ‘unsound’ mind. However, many other authorities writing on the subject, such as Richard Burn in 1763 and Sir Robert Phillimore in 1873, did accept that there were some exceptions to the rule that the Burial Office was to be denied to all who had taken their own lives.
Similarly, Charles Wheatly pointed out that the indignity of being denied a Christian burial
is only to be offered to those who lay violent hands upon themselves, whilst they are of sound sense and mind: for they who are deprived of reason or understanding cannot contract any guilt, and therefore it would be unreasonable to inflict upon them any penalty.Footnote 35
However, he also questioned whether the law intended for those who were adjudged to be of unsound mind to be refused the Christian burial service, ‘since neither the rubric nor our old ecclesiastical laws make any exception in favour of those who may kill themselves in distraction, and since the office is in several parts of it improper for such a case’. He did not reach a conclusion on whether those of unsound mind should be granted a Christian burial.
From 1823, it became a statutory requirement that every burial must take place in a burial ground rather than on the public highway so that even those judged felo de se were entitled to be buried in the parish churchyard.Footnote 36 However, suicides were still not entitled by law to a Christian burial service. It was not until the Burial Laws Amendment Act of 1880 that any individual could be buried within any churchyard or graveyard with some form of religious service being performed by someone other than the officiating minister of the Church of England.Footnote 37 It also became lawful, in circumstances where the Church of England burial service was not permitted, for any clergyman to use prayers taken from the Book of Common Prayer and extracts from Holy Scripture at the burial service if this was prescribed or approved by the ordinary.Footnote 38 As a result, even those found to be felo de se could receive a form of prayers at their burial service.
Following the Interments (Felo de se) Act 1882, it became lawful for those adjudged felo de se to be buried in the churchyard during the day, rather than between the hours of 9 pm and midnight, as had been the case under the Burial of Suicide Act.Footnote 39 In addition, the relatives could arrange for a religious service to be read by a minister from a different denomination at the burial.Footnote 40
In practice, what happened at the graveside and during funeral services for suicides was determined by the interpretation of the ecclesiastical law by the individual priest concerned. It is likely that many clergy regarded a verdict that a suicide victim was of ‘unsound mind’ as authorising them to a Christian burial. However, this interpretation was not universal and could result in clergy in neighbouring parishes adopting different approaches to the burial of suicide victims.Footnote 41
The Prayer Book (Further Provisions) Measure of 1968 made provision for a special service for the burial of those who had taken their own lives, which was to be approved by the Convocations.Footnote 42 This has been amended by the Church of England (Worship and Doctrine) Measure of 1974, which states that the form of service is to be authorised by General Synod.Footnote 43 However, as will be seen below, this provision has not yet been utilised.
CURRENT LAW
Canon B 38 is the current legal position of the burial of the dead: it is the duty of every minister to bury any deceased parishioner.Footnote 44 There is accordingly a right for every parishioner and any person who dies in the parish to be buried in the churchyard or consecrated parish burial ground, regardless of whether they are a member of the Church of England or even a Christian.Footnote 45
Canon B 38 also prescribes that the minister has a duty to conduct the burial service in accordance with the authorised rite of the Church of England. There are, however, a number of exceptions to this rule, such as in circumstances where it is stated that the burial service is not to be performed. This includes where the deceased ‘have died unbaptised, 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 to testify to his repentance’.Footnote 46
In the event of one of the above exceptions, the minister shall not use the burial rites of the Church of England. Instead, he or she shall use such service as may be prescribed or approved by the ordinary, providing that it is not contrary to or indicative of a departure from the doctrine of the Church. In the event that General Synod has approved a service under Canon B 2, that service should be used; alternatively the bishop shall approve the service. Despite the provision being in place since 1968, neither Convocations nor General Synod has approved a service for use.Footnote 47 Accordingly, the responsibility for approving the form of service used rests with the bishop or other ordinary. It seems that very few, if any, bishops have prescribed or approved a form of service for use in the event that someone has taken their own life while of sound mind.Footnote 48
SHORTCOMINGS OF THE CURRENT LAW
There are a number of problems with the current drafting of Canon B 38. First, since the canon makes a distinction between those who are of ‘sound’ or ‘unsound’ mind when they take their own life, what is meant by the phrase ‘unsound mind’? This term is not defined in the canons. However, it may be possible to shed some light on it by turning to other areas of the law.
This phrase appears in a number of different legal contexts, such as when determining if an individual has capacity to make a will, or in relation to obtaining consent for medical treatment. Black's Law Dictionary states that ‘a person of unsound mind is an adult who from infirmity of mind is incapable of managing himself or his affairs’.Footnote 49 This definition is unlikely to assist us in deciding if a suicide victim was of ‘unsound mind’, because an individual who commits suicide may still be capable of managing his or her affairs, but may have been suffering from a mental affliction which resulted in taking his or her own life. Black's Medical Dictionary does not have an entry for ‘unsound mind’, but mental illness is defined as ‘a disorder of the brain's processes that makes the sufferer feel or seem ill, and may prevent that person from coping with daily life’.Footnote 50
Another area of law which has considered the issue of capacity is in relation to the provision of consent for medical purposes. The Mental Capacity Act 2005 states that:
a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
Furthermore, the general presumption at common law is that an adult has ‘full legal capacity unless it is shown that he or she does not. If a question of capacity comes before the court the burden of proof will be on the person seeking to establish incapacity.’Footnote 51 This is in contrast to the often generous reading made by medical examiners if a verdict of suicide is returned: the presumption is often that the very fact that the person committed suicide is indicative of some impairment of the mind.
An argument that is increasingly cited by medical professionals and clerics to justify using the full Church of England burial rite is that anyone who feels that they can no longer continue with their life must have some degree of ‘mental anguish’ and so can be classified as being of ‘unsound mind’. However, there are examples of individuals who are seemingly thinking rationally when they take their own lives, including individuals suffering from a terminal illness such as cancer or a degenerate disease such as motor neurone disease. These individuals may reach the decision to take their own life while they are in a great amount of pain, and knowing that their situation will only deteriorate. They argue that they wish to end their life before the pain becomes too unbearable and while they can maintain a degree of dignity.Footnote 52 Can these individuals truly be classified as being of ‘unsound mind’?
Deciding if someone is of unsound mind is not straightforward. Inevitably, determining an individual's state of mind with any degree of certainty at a particular moment in time (especially as the individual being investigated is dead) is difficult, if not impossible. It is clearly a subjective task, since the decision will be influenced by the individual's personal feelings towards the issue, and different coroners and priests may reach opposing conclusions.
Second, since determining whether an individual is of ‘unsound mind’ is such an important issue in relation to the burial of suicide victims, the next issue to consider is who determines if the individual is of ‘unsound mind’. It is implicit in Canon B 38 that only suicide victims who are judged to be of ‘unsound mind’ when they die may be given a full Church of England burial service. As a consequence, before a suicide may be granted a full Church of England burial service, they must be classified as being of ‘unsound mind’. Again, the canon does not specify who is to determine this fact.
Under the Coroners and Justice Act 2009, a coroner must investigate the causes and circumstances of certain deaths. Once an investigation has been carried out, the coroner will reach a verdict on how the deceased died, which can include that of suicide, or an open verdict (where there is insufficient evidence). Since the coroner's report is produced after a detailed post-mortem has been carried out, the coroner is the most qualified to determine the state of mind of the suicide victim when they died.
However, under Canon B 38, it is the responsibility of the minister to decide whether the deceased may be granted full burial rites. This presumably extends to deciding whether the individual was of ‘unsound mind’. Furthermore, in some instances the funeral may take place before the coroner has completed his investigations. In these cases the minister will not have the verdict to assist in deciding whether to use the full burial rite and must make his or her decision without the benefit of the coroner's report. There is a likelihood that, in reaching a decision, different clergy will adopt different stances and this could lead to conflicting approaches being adopted in any parish or benefice where there are two or more priests. This, in turn, may result in a perceived unfairness and inconsistency in the Church's stance.
Third, the current legal position causes confusion. At General Synod it was suggested that the fact that ministers are required to follow an alternative, approved form of burial service for suicide victims rather than the full rite is honoured more in the breach than in its observance. Many priests openly state that they ignore the canon law because it is outdated and pastorally insensitive, while others claim to have been unaware of this law. This makes a mockery of the canon law and could potentially prove damaging to the law in general: the canon law may begin to be seen as not having any ‘teeth’ because there are no consequences for those who do not observe it. There is a risk that priests may feel that, if they can ignore Canon B 38 without any consequences, it is acceptable to ignore other aspects of the canon law. This will lead to a breakdown in the regulation of the Church. For this reason there is an argument that it is necessary to amend the law, since it must be seen to reflect the current principles and to be realistic. In contrast, it could be said that, rather than amending the law as it stands, the current canon simply needs to be enforced. This could be achieved by referring any ministers who do not comply with the canon to a disciplinary tribunal in accordance with the Clergy Discipline Measure 2003. However, it would be impossible to enforce this canon if the perception by all clergy and bishops is that the canon is wrong.
Furthermore, public attitudes towards suicide altered drastically during the twentieth century as understandings in mental health have developed. It may be time for an update in the law to reflect this change in society's attitudes.
COMPARISON WITH THE ROMAN CATHOLIC AND METHODIST CHURCHES
In considering whether it is appropriate to amend Canon B 38 it is helpful to analyse the position adopted by other Christian denominations regarding the burial and funeral rites of suicide victims.
Roman Catholic Code of Canon Law
The Roman Catholic Church's current position regarding the burial and funeral rites is set out in the 1983 Code of Canon Law. Canons 1176–1185 provide the norms relating to ecclesiastical funerals. Under Canon 1176 §1, all the Christian faithful who have died must be given ecclesiastical funerals.Footnote 53 The only restriction placed upon this right is in Canon 1184. Furthermore, Canon 1176 §2 states that church funerals are to be celebrated according to the norms of the liturgical books. The purpose of the funeral rites is: to pray for the spiritual support of the dead; to honour their bodies; and to bring to the living the comfort of hope.Footnote 54
Canons 1183–1185 set out rules governing who is entitled to ecclesiastical funerals and to whom funerals must be denied. Canon 1183 specifies that, in order to be given a Catholic funeral, the deceased must be ‘counted among the Christian faithful’. Canon 1184 states that church funerals are to be denied to the following unless they died repentant:
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i. Notorious apostates, heretics, and schismatics;
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ii. Those who chose cremation for reasons contrary to the Christian faith; or
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iii. Manifest sinners who cannot be granted ecclesiastical funerals without public scandal of the faithful.
Canon 1184 §2 clarifies that, if there is any doubt, the priest should consult the local ordinary and his judgment must be followed.
In comparison to Canon 1240 §3 of the 1917 Code, the 1983 Code does not specifically state that those who have committed suicide are to be denied an ecclesiastical funeral. It is therefore necessary to consider whether those who commit suicide will be caught under the provision for ‘manifest sinners’ in Canon 1184 §1 of the 1983 Code. A Christian funeral is only to be denied to manifest sinners if granting an ecclesiastical funeral would cause ‘public scandal to the faithful’. The denial of a church funeral has always been a sensitive issue in the Church's law because it is ‘one of the most severe of all ecclesiastical penalties’.Footnote 55 Therefore, the Church takes great care to strike the right balance between the necessary discipline of the faithful, and ‘a true understanding of the mercy of God, revealed principally in the death and resurrection of Christ’.Footnote 56 The Church takes into consideration two key factors when trying to strike this balance: the main purpose of a church funeral is to ‘pray for the spiritual support of the dead’;Footnote 57 and all liturgical actions are a celebration of the Church and are accordingly public actions.
When the Church decrees that a specific person or group of people is to be denied a church funeral, its decision is aimed ‘solely at those who, by their conduct in life, have deliberately and irrevocably chosen to secede from the unity and community of the Church’.Footnote 58 Accordingly, the Church will not deny an individual a church funeral under Canon 1184 if they ‘gave some signs of repentance before they died’. This phrase is very general, and canonists have interpreted this phrase in a charitable and generous way. There appears to be some debate over how far the Church will stretch any sign of repentance: Beal and Coriden state that ‘it is not sufficient that the person merely make an act that indicates belief in God, since even heretics, schismatics, and many apostates believe in God’; whereas the Canon Law Society of Great Britain and Ireland considers that ‘almost any positive sign which would indicate the person's continued belief in God's mercy, however apparently flawed by previous personal conduct, would suffice’.Footnote 59 Despite the slight differences in opinion over how this phrase is to be interpreted, what is apparent is that there must be an indication that the person repented of their action before they died, and that they desired to be reconciled with God.
The fact that Canon 1184 sets out a very limited number of exceptions that will result in an individual being denied a church funeral, it is apparent that the Catholic Church is reluctant to deny a Christian funeral ‘except in the most publicly scandalous of situations’.Footnote 60 As a result, it is possible to conclude that the extant Roman Catholic Code of Canon Law does not deny a Christian burial to those who have committed suicide.
The Methodist Church in the UK
The Constitutional Practice and Discipline documents provide the legal framework within which the Methodist Church is governed.Footnote 61 However, the position regarding the funeral rites afforded to those who have taken their own lives is not set out in any of the constitutional documents and the Methodist Church website does not explain the position adopted by the Methodist Church. This could be because the Methodist Church does not make a distinction between people who have died of other causes and those who have taken their own lives, so it does not consider that it is necessary to set out any rules or regulations governing this issue in the constitutional documents.Footnote 62
PROPOSALS FOR REFORM
On 12 February 2015 General Synod voted in favour of amending Canon B 38. At its July 2016 meeting the Synod considered a draft amending canon which proposed a number of alterations to paragraph 2 of Canon B 38. It was accepted that the draft amending canon should go forward to the Revision Committee and comments were invited to be submitted by 12 August 2016.Footnote 63 The Revision Committee met on 5 October 2016 to discuss any required changes, and a further report was prepared for consideration by General Synod on 14 February 2017.Footnote 64
If the alterations put forward by the Revision Committee in draft amending Canon 37Footnote 65 are accepted and are eventually incorporated into the canon law, Canon B 38 paragraph 2 will be amended to read:
It shall be the duty of every minister to bury, according to the rites of the Church of England, the corpse or ashes of any person deceased within his cure or of any parishioners or persons whose names are entered on the church electoral roll of his parish whether deceased within his cure or elsewhere that is brought to a church or burial ground or cemetery under his control in which the burial or interment of such corpse or ashes may lawfully be effected, due notice being given; except the person deceased have died unbaptised, or being of sound mind have laid violent hands upon himself, and the minister cannot in good conscience use the Order for the Burial of the Dead contained in the Book of Common Prayer or a form of service for burial which is approved by the General Synod under Canon B2; in which case, having notified the Ordinary accordingly, 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.Footnote 66
The explanatory memorandum circulated with the draft amending canon explains that the purpose of the amendment is to remove the exception that prevents the ‘normal burial service’ being used in the event that a person commits suicide while of sound mind (or for a person who died without being baptised). However, the amendment also inserts an exception where the minister ‘cannot in good conscience use the normal burial service’ for a suicide victim, in which case he or she must notify the bishop and use a form of service prescribed or approved by the bishop.Footnote 67
Although the amending canon does make various long-needed changes to Canon B 38, there are still a number of issues to consider. First, the amendment retains the distinction between those who take their own lives while being of ‘sound mind’ and those who are of ‘unsound mind’. While this may be a theoretical distinction because the majority of ministers allegedly already use the ‘normal funeral service’ for all suicide victims, the distinction may still be a painful one for the relatives of suicide victims. There is also a difficulty as to who should determine whether the deceased was of ‘sound’ or ‘unsound’ mind. As has been explored above, it is the coroner who, having conducted the post-mortem, is qualified to analyse the deceased's state of mind. However, in some cases the funeral takes place before the coroner has completed his or her verdict. In these circumstances it is necessary for the priest to decide whether to use the full burial rite without seeing the coroner's verdict. The test for determining whether an individual was of ‘unsound mind’ when they committed suicide is clearly a subjective one. This will inevitably result in potentially different verdicts being reached depending on the experiences and personal views of the coroner or priest making the decision. Different priests may take different views on whether a suicide victim should be given a full burial rite. For these reasons it seems sensible to remove the distinction between suicide victims who are of ‘sound mind’ and those who are of ‘unsound mind’ from Canon B 38. Furthermore, given the advances in science over the last century and our understandings of the workings of the human brain, it may be more pastorally sensitive to remove all reference to the deceased's state of mind.
Second, what is meant by the phrase ‘and the minister cannot in good conscience use the Order for the Burial of the Dead’? What circumstances would justify a priest refusing to bury a suicide victim on grounds of ‘good conscience’? The problem with introducing a ‘conscience’ clause into Canon B 38 is that the decision whether to use the normal funeral service is left to the priest officiating at the service. Again, this is clearly a subjective decision and it is unclear from the canon how the minister is to inform his or her conscience: must the objection be theological or can it be a purely personal objection? Furthermore, presumably this discretion must be exercised reasonably, but what checks have been put in place to ensure that it is? In the event that the bishop does not intervene once the minister has informed him that he or she cannot use the ‘normal funeral service’, then it would appear that there is no mechanism to ensure that the priest has exercised his or her discretion reasonably.
It is possible to draw a parallel with the statutory conscience clause inserted into the Matrimonial Causes Act 1965, which states that clergy of the Church of England cannot be compelled to solemnise the marriage of any person whose former marriage has been dissolved and whose former spouse is still living. This provision has caused a rift in some churches where it is not understood why a priest is refusing to solemnise the re-marriage of a parishioner who is divorced. The inclusion of a conscience clause in Canon B 38 may result in conflicting stances being taken where there is a parish or benefice with two or more priests. It is important that the Church is seen to treat everyone equally, especially at such an emotive time as when a family is grieving the death of a loved one. There is a risk that people will become disillusioned with the Church if there is a perception that some people are being treated more favourably than others.
Third, the amendment states that in the event the minister does not feel able to use the ‘normal’ funeral service for a suicide victim, the bishop must be notified. The amendment does not specify how such notification should be made. Is the canon placing a duty on the minister simply to inform the bishop that he or she is not using the ‘normal funeral service’ and the bishop cannot intervene in the minister's decision, or is the minister required to consult with the bishop and seek his or her permission to use an alternative form of service? From the wording of the amending canon, it would appear that the minister is not required to obtain the bishop's consent, but is this what is intended? If permission is needed this could lead to a delay in burying the deceased.
Finally, in the event that a minister does decide that an alternative service should be used for the deceased, the bishop must approve that service. There is still the possibility under this amended canon that the bishop refuses to prescribe or approve a form of service. One of the reasons given for seeking to amend Canon B 38 was that there is currently no form of service for suicide victims which has been prescribed or approved by any bishops. Therefore, unless a special service for those who have committed suicide is put forward for approval, this loophole will continue to exist.
Liturgy used by other Christian denominations
At this stage it will be helpful to consider the approach adopted by the Roman Catholic and Methodist Churches to determine if anything can be learnt from their approaches to the funeral rites given to suicide victims. For members of the Roman Catholic Church, the Mass, as the memorial of Christ's death and resurrection, is the principal celebration of the Christian funeral. The ‘Funeral rites’ section in the Order of Christian Funerals provides the rites that may be used in Christian funerals. The ‘Funeral liturgy’ section outlines two forms of funeral liturgy: the ‘Funeral Mass’ and the ‘Funeral liturgy outside Mass’.Footnote 68 The only distinction that is made is that the ‘Order for Christian funerals’ has a section entitled ‘Funeral rites for children’, which provides a form of service that is adapted especially for children.Footnote 69
The Methodist Church also does not make a distinction between suicide victims and other members of society who have died: the same funeral service is used in almost all cases. The authorised liturgy for funeral services in the Methodist Church is set out in the Methodist Worship Book. This provides four different liturgies for funeral services: (1) a funeral service in a church, a crematorium, or a cemetery, leading to committal; (2) a funeral service at a crematorium or cemetery, followed by a service of thanksgiving in church; (3) a funeral service for a child; and (4) a funeral service for a stillborn child. The only distinction that is made is between a child who has died or a stillborn child and the death of an adult. The introduction to the funeral services in the Methodist Worship Book states:
Christians believe that the death and resurrection of Jesus Christ give them hope and cause for thanksgiving in the face of death. In this faith, we entrust those who have died to the infinite mercy and love of God. Rites used on these occasions need to reflect local traditions and culture.Footnote 70
These liturgies provide the starting point for a Methodist minister preparing the funeral service for any individual being buried. However, there is no requirement for the minister to follow strictly the liturgy in the Worship Book, and the precise service will depend upon the theology of the individual minister conducting the service.Footnote 71
Thus a study of the liturgies used by both the Roman Catholic and the Methodist Churches reveals that the only real distinction made in the funeral liturgy is between a funeral service for adults and an adapted service for children.
CONCLUSION
It is clear that the current wording of Canon B 38 creates uncertainty and confusion. As a result, the current legal position needs to be simplified. The question is whether the proposed amending Canon No 37 succeeds in rectifying the shortcomings with Canon B 38.
While the amendment does go a long way towards solving the problems identified in Canon B 38, it does not provide a complete solution. There is still the potential for unfairness in the way that individuals are treated: for example, in the event that one priest's conscience does not allow him or her to use the ‘normal’ burial service, while in the same circumstances another priest would. In addition, the amendment still retains the distinction between those who commit suicide while of ‘sound’ or ‘unsound’ mind. Given the advances in psychiatric medicine and the understanding of the workings of the brain, it may be sensible to remove the perception that an individual was ‘mentally disturbed’ because they committed suicide. This could be achieved by completely removing the distinction between those who were of ‘sound’ or ‘unsound’ mind when they took their own life. Finally, and most importantly, the amendment does not tie up the loophole in the current legal position because, in the event that a priest feels that he or she cannot bury an individual using the ‘normal’ funeral rite, there is still no form of service that has been approved by a bishop as is required under the Canon.
Therefore, the amendment has the potential to further complicate the position in relation to the funeral rites given to suicide victims. A simpler solution may be to adopt the approach that is already favoured by the Roman Catholic and Methodist Churches, whereby suicide victims are afforded the same funeral rites as all others. This could be achieved by removing in its entirety the exception for suicide victims from Canon B 38 (as the amending canon has done in relation to those excommunicated). In any event, the solution adopted by General Synod needs to safeguard the effective functioning of the law by bringing it up to date so that it continues to meet the needs of parishioners and those living within the parish in a pastorally sensitive way. Only time will tell if this has been achieved.
