Exhuming Justice
Date: 18 January 2008
Authors: Steven Gallagher, Frederick Cosgrove-Gibson
Issue: Vol 158, Issue 7304
Categories: Features, Constitutional law, Public
The creation of the Ministry of Justice (MoJ) has resulted in a reinterpretation of the law governing the exhumation of human remains. Unless an exhumation is regulated by another piece of legislation, eg the Disused Burial Grounds (Amendment) Act 1981, it is governed by the Burial Act 1857 (BA 1857), s 25, which states:
“Except in the cases where a body is removed from one consecrated place of burial to another 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 such 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 before any two justices of the peace, forfeit and pay for every such offence a sum not exceeding [level 1 on the standard scale].” (Emphasis added)
For 150 years BA 1857, s 25 has been interpreted as meaning that unless a body is buried in ground consecrated to the Church of England and is to be removed to similarly consecrated ground, when it will be under the faculty jurisdiction of the ecclesiastical courts, it may only be exhumed by a licence from the relevant secretary of state, who may attach such conditions as he thinks fit. This may seem to be stating the obvious but the section has recently received ministerial reinterpretation.
EXHUMATION GUIDELINES
Licence-issuing for exhumation is now under the auspices of the MoJ. The MoJ’s coroners unit provided guidelines for exhumation which state that no licence is needed for exhumation in certain circumstances despite the MoJ’s published consultation, Burial Law and Policy in the 21st Century: the Way Forward (June 2007), concluding that most groups consulted and the government were in favour of the central licensing of exhumation.
To reach this conclusion the MoJ has reinterpreted the italicised parts of BA 1857, s 25 (see above). The words “any place of burial” which, for 150 years, have been interpreted, literally, as any place of burial have been interpreted by the MoJ as meaning “‘places of burial’ which are recognisable as such on the surface of the land, and where the ‘place’ in question has not passed, in surface terms, into other use”. Therefore, if the place of burial is not a recognisable place of burial on the surface it is not a place of burial. Similarly, the MoJ’s interpretation of the italicised phrase regarding precautions and conditions is that it does not give it the power to attach conditions allowing or regulating scientific study. Again this is contrary to previous interpretation and practice.
THE MISCHIEF
The original mischief that BA 1857 was intended to combat was to protect human remains wherever interred and delineate jurisdiction. In Re Talbot [1901] P 1, Dr Tristram, the celebrated chancellor of the
“A dead body by law belongs to no one, and is, therefore, under the protection of the public. If it lies in consecrated ground, the ecclesiastical law will interpose for its protection; but, whether in ground consecrated or unconsecrated, indignities offered to human remains in improperly and indecently disinterring them, are the ground of an indictment.”
As Davies’ Law of Burial, Cremation and Exhumation states: “In R v Lynn, 2 Term Rep 733, and R v Sharpe, (1857) Dears & B 160, it was held that the removal of a body from any burial ground without lawful authority was an indictable misdemeanour at common law, whatever the actual motive for the removal might be.” In R v Jacobsen (1880) 14 Cox CC 522, it was accepted by the court that the human remains were not disturbed in an improper and indecent manner but it was still held that the defendant was guilty of a misdemeanour at common law.
This is a particularly emotive and potentially hazardous area of the law that had been settled reasonably successfully for a considerable period. It was previously common practice for archaeologists discovering human remains while excavating to telephone the coroner and obtain a licence within hours. The MoJ’s protean reinterpretation of the law has removed certainty in the law and raises the question: why change a relatively successful system? If the MoJ is trying to avoid its statutory responsibility then it may be subject to judicial review. Although it might be expected that archaeologists would find the relaxed attitude of the MoJ convenient, many have expressed concern and the interest many religious groups are now expressing in the disturbance of human remains may leave them open to potential prosecution.
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