The churchyard was closed for further burials in 2014 by an Order in Council made under the Burial Act 1853. In October 2018, the incumbent returned from a course to find that an interment had taken place in the churchyard. This was without lawful authority; any burial in a closed churchyard required a faculty, either by way of prior reservation or to permit the use of a family grave. It was also a criminal offence under section 3 of the Burial Act 1853.

Prior to his departure for the course, the incumbent had explained both to the funeral director and to the widow of the deceased that such an interment was not possible (it not being proposed to use a family grave or to inter cremated remains) and that, even if possible, it would require a faculty. However, the family had been adamant that the deceased's remains should lie in the churchyard with those of other members of the family; the undertaker (as the court found) had taken a chance by digging and using a grave in a small space next to the deceased's brother's remains. When questioned by the Methodist minister who was to conduct the funeral and burial about the authority for the burial, the undertaker had chosen to lie to him, saying that the matter had been sorted out with the incumbent. He had subsequently lied about having been told that the burial location was a family plot and about a conversation with the parish administrator. He had failed in his responsibility to know the rules, to obey the law, to explain those rules to others and to ensure that they obeyed them; in doing so, he had fallen well below the standards to be expected of a funeral director. He had failed both the clergy and the family.

The court's consideration of advice from the Ministry of Justice concluded that there was no means by which the unlawful burial could be made lawful retrospectively by the Privy Council. The court considered section 88(2) and (3) of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, which permit the interment of cremated remains in a closed churchyard either by faculty or in an area set aside for cremated remains, and asked itself whether this must imply also a power to grant a faculty for interment of a body in a closed churchyard. The Court of Arches in re St Michael and All Angels, Tettenhall, Wolverhampton, 26 October 1995, decided that remains that had been exhumed from a closed burial ground on the grounds of necessity could be re-interred elsewhere in the same burial ground (and that cremation of those remains was not, therefore, required). In doing so, the court had approved the reasoning in re St Mary, Barnes [1982] 1 WLR 531 that the prohibition of burials under the Burial Act 1853 was directed to the interests of public health, and did not preclude re-interment of previously buried remains. The court concluded that these principles ruled out any way of interpreting section 88(2) and (3) of the 2018 Measure so as to give the court power to authorise the first-time interment of a body in a closed churchyard.

There was no proposal for the exhumation of the deceased's remains; they would continue to lie where they were. The family could petition for a faculty for a memorial. If a similar case arose in the future, the court warned that it might feel obliged to report the matter to the police and that the burial might not be permitted to remain in situ. The undertaker was ordered to pay the costs of the proceedings. [DW]