Rudewicz and Richard III’s exhumation

Any exhumation in England and Wales, regardless of who was (or might have been) buried or when the original burial was made, is subject to the Burial Act 1857section 25 of 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”.

The Ministry of Justice (MoJ) is currently the department with responsibility for burial law. It has issued the following guidance about the authority needed to exhume human remains for archaeological purposes:

“An exhumation licence is required and should be obtained beforehand from the Minister of Justice. There are two exceptions to this:

(a) when excavation is to be from ground consecrated according to the rites of the Church of England and the remains are to be re-interred in consecrated ground (in which case a faculty only is required); or

(b) where the site is subject to burial ground legislation (in which case exhumation should be undertaken in accordance with the requirements of the legislation and any directions issued by the Ministry of Justice).”

In the Leicester case, although the discovery was made in the former church of the Grey Friars the burial site is not subject to the faculty jurisdiction of the Church of England or to other burial ground legislation.

Responding to questions in the House of Commons on the reburial of the remains, Helen Grant, Under-Secretary of State for Justice, said:

“This is a matter for the University of Leicester archaeologists who were granted the licence to exhume remains which may be those of Richard III. Should the remains be found to be those of Richard III, the archaeologists’ current plan is to re-inter [them] in Leicester Cathedral” [25 October 2012].

This implicitly recognizes the legal position under the 1857 Burial Act and the University of Leicester’s possession of the bones, on which the Minister later said:

“My Department issued a licence to exhume human remains which could be those of Richard III. Remains have now been exhumed and archaeologists are currently carrying out tests to determine the identity of the remains. Should they be found to be those of Richard III, the current plan is for them to be re-interred in Leicester Cathedral,” [19 November 2012].

Copies of the application to exhume, the section 25 licence and the accompanying letter to the University are available here,here and here.

In summary, an application was made by the University of Leicester to the MoJ for a section 25 licence under the Act and the Ministry granted the licence.  No legal process was involved other than the internal procedures of the MoJ.  The issue of the licence and the subsequent exhumation of the remains gave the University of Leicester “custody and possession of the remains” and the duty to rebury them according to the terms specified within it.

Any potential challenger to the Ministry’s decision to grant the licence and to impose specific conditions within it would need to seek judicial review.  This might include an assertion that someone other than the University had a higher claim on the remains and a right to determine the manner of their interment.  However, a judicial review would only address the manner in which the MoJ had made its decision, not the detail of decision itself.  If the decision-making process were challenged successfully there would be no obligation for the MoJ to arrive at a different conclusion.

Rudewicz

There is relatively little case-law in this area; but the recent consideration of Rudewicz, R (on the application of) v Secretary of State for Justice & Ors [2012] EWCA Civ 499 by the Court of Appeal addressed some of the issues involved. The appeal by Elizabeth Rudewicz was against the Divisional Court’s refusal to grant judicial review of the decision of the Secretary of State for Justice to grant a licence for exhumation under section 25 of the 1857 Act: see [2011] EWHC 3078 (Admin).

The effect of this licence was to permit the remains of Father Jarzebowski to be exhumed from Fawley Court, Henley-on-Thames, in order to be transferred to Fairmile Cemetery some two miles away. Fr Jarzebowski had been a Polish Marian Father instrumental in founding a school at Fawley Court, where he was buried in accordance with his wishes.  In 2008 Fawley Court was no longer required by the Marian Fathers, was deconsecrated and sold.  Leaving the remains of Fr Jarzebowski at Fawley Court would have restricted public access to the grave to possibly once per year; and this permissive agreement could be withdrawn at any time.  Consequently, the Fathers applied to the MoJ under section 25 of the 1857 Act to exhume the remains and to re-inter them in Fairmile, where a number of the Fathers who died after 1964 are buried. The application was supported by the Provincial Superior of the Polish Province of the Fathers, the Superior General of the Order in Rome and the local bishop.

Ms Rudewicz objected. Her counsel argued that there was a “general presumption of permanence” of interment, as enunciated by the Court of Arches  [the ecclesiastical Court of Appeal] in Re Blagdon Cemetery [2002] Fam 299, and it had been illogical for the Secretary of State to have relied on the desire of people to visit Fr Jarzebowski’s grave, since a large number of the objectors had expressly referred to their desire to visit his existing grave in situ and no-one appeared to have written in support of the proposal to exhume and rebury. Moreover, Ms Rudewicz was the priest’s nearest surviving relative and exhumation would violate her rights under Article 8 ECHR (family life) and Article 9 ECHR (thought, conscience and religion).

The Divisional Court had upheld the decision to allow exhumation and the Court of Appeal agreed with the Divisional Court. The decision had been neither irrational nor disproportionate: moreover, the approach of [Church of England’s] consistory courts to faculties for exhumation did not apply to the grant by the Secretary of State of licences under section 25 Burial Act 1857.

The Court of Appeal said that the “general presumption of permanence” enunciated by the Court of Arches in Blagdon was based on the Church of England’s theology of burial – but the Church’s theology was not relevant to secular applications. Furthermore, the decision had been proportionate in human rights terms. The Divisional Court had dismissed the argument based on Article 8 ECHR on the grounds, inter alia, that “family life” could not subsist after death – and in any case, the wishes of the Provincial Superior had to be set against those of Ms  Rudewicz because in many ways he had the stronger case for being treated as Fr Jarzebowski’s closest family member. As to Article 9, the religious concerns of Ms Rudewicz and the objectors had to be balanced against those whose religious beliefs appeared to favour the grant of the licence. The appeal was therefore dismissed.

Finally, it is interesting that the “general presumption of permanence” enunciated in Blagdon was put forward in argument about the exhumation of the remains of a Roman Catholic priest – even though the point was rejected. It underlines the fact that the courts of the Church of England are part of the general system of courts (albeit a very specialised part) and that ecclesiastical law is part of the general law. Ironically, the potential beatification of the priest would both increase those wishing to visit his grave, as indicated to the court, but would at some stage require exhumation and examination of the body by the Church, in the procedures leading to canonization.

Rudewicz and Richard III

There are a number of aspects to the Rudewicz case that are of relevance to the treatment of Richard III’s remains.  It clarifies the role of the Ministry of Justice, stating:

“unless there is some justification for doing so, it is for the Secretary of State to decide on what grounds and in what circumstances to grant a licence, and, apart from an obligation to act rationally, and otherwise in accordance with the general law (including that relating to human rights), there should be no operative fetter or presumption, [para. 31],”

and gives an example of  the countervailing factors which the Secretary of State took into consideration in this case, [para.13]. The court also held to be “unhelpful of wrong” the contention that a person seeking a licence under section 25 has to discharge an onus to show good reason why disinterment should be permitted.

The case demonstrates the balancing exercise undertaken by the court in assessing the relative merits of the human rights and other legal factors relating to: a (fairly) close relative, the many (~2000) “objectors”, others with a claim to determining the exhumation and reburial, (ie the head of the Order) and the stated wishes of the deceased.

David Pocklington and Frank Cranmer

 

Since   our first post on Richard III “The   Bones of Richard III – Leicester, York, or Worksop?” we have followed   developments on the associated legislation.    Although comment is now closed, for those with interests in this area the relevant articles are listed below.

Cite this article as: David Pocklington, "Rudewicz and Richard III’s exhumation" in Law & Religion UK, 16 February 2013, http://www.lawandreligionuk.com/2013/02/16/rudewicz-and-richard-iiis-exhumation/

16 thoughts on “Rudewicz and Richard III’s exhumation

  1. Pingback: Religion and Law round up – 17th February | Law & Religion UK

  2. Pocklington & Cranmer’s assertion that ‘Any exhumation in England and Wales, regardless of who was (or might have been) buried or when the original burial was made, is subject to the Burial Act 1857, section 25’ is factually incorrect. The key word used by the authors, ‘Any’ infers that ‘all’ exhumations are subject to s 25 Burial Act 1857.

    There are a multitude of reasons, including archaeology, why exhumations take place within England and Wales, with a multitude of Licences being issued by the Ministry of Justice on an annual basis to enable such events to take place. However, there are now 5 (there used to be 6) overarching reasons why exhumations could take place as part of a criminal investigation, one of which is governed by s 23 Coroners Act 1988, and the other four are governed by s 25 Burial Act 1857.

    s 23 Coroners Act 1988 states:

    23 Exhumation of body for examination.

    (1) A coroner may order the exhumation of the body of a person buried within his district where it appears to him that it is necessary for the body to be examined—
    (a) for the purpose of his holding an inquest into that person’s death or discharging any other function of his in relation to the body or the death; or
    (b) for the purposes of any criminal proceedings which have been instituted or are contemplated in respect of the death of that person or of some other person who came by his death in circumstances connected with the death of the person whose body is needed for examination.
    (2) The power of a coroner under this section shall be exercisable by warrant under his hand.
    (3) No body shall be ordered by a coroner to be exhumed except under this section.

    If an exhumation was ordered by a coroner by way of a warrant, and the body was interred in unconsecrated ground in a single occupancy grave, that is the sole authority needed for the exhumation to take place.

    If, on the other hand, the body was buried in a multi-occupancy grave in unconsecrated ground with a coffin interred above the target coffin, a licence would need to be obtained from the MOJ before the warrant could be executed.

    If that same body was buried in a single occupancy grave within consecrated ground in England, most, but not all Diocesan Chancellors would insist that a Faculty be applied for and granted before the warrant could be executed.

    In England (or to be more precise in the geo-diocesan regions covered by Canterbury and York – as some diocese straddle the geo-political boundary between England and Wales), where as part of a criminal investigation, an exhumation is sought from a multi-occupancy grave located within ground consecrated by the Church of England, multiple authorities in the form of a warrant granted under the Coroners Act 1988, a Faculty or Faculties granted under the Faculty Jurisdiction Rules 2000 and a Licence or Licences granted under the Burial Act 1857 have to be obtained, before the warrant can be executed and the exhumation can take place.

    This is an embrangled state of affairs that is in dire need of clarification for all concerned; those conducting criminal investigations, Chancellors of the Consistory Courts, Registrars of those courts, the Coroners Section of the Ministry of Justice, archaeologists, lawyers and academics to name but a few.

  3. David, thank you for your comments which emphasize the need for some rationalization of the law in this area. Although aware of the coronial dimension, my thoughts when writing the piece were focussed on the archaeological matters and I assumed the generality of the 1857 Act.

    On examination of the 1857 and the 1988 Acts, it is apparent that there is no cross-referencing between them, which suggests it was not considered necessary to amend the 1857 Act when subsequent coronial provisions were introduced.

    Section 25 of the 1857 Act states

    “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”.

    Although it is common practice to refer to “a section 25 licence”, it would be more correct to use the phrase “a licence issued under section 25”, which would include one issued under any other provision, such as the 1988 Act. This is demonstrated on the licence relating to Richard III which is entitled “Licence for the removal of human remains”, and commences “The Secretary of State, in exercise of the power vested in him in section 25 of the Burial Act 1857 (20 & 21 Vic, cap. 81), grants a licence.

    It would be convenient to develop this argument and regard the exhumation provisions of the 1988 Act and those of the Coroners and Justice Act 2009 as leges speciales of the 1857 Act. However, whilst it could be argued that this is what happens in practice (otherwise the wording of the 1857 would be incorrect in its reference to any body) it is difficult to draw exact parallels to licence or one of Her Majesty’s Principal Secretaries of State in the subsequent Acts.

    • David, many thanks for responding to my observations.

      There is confusion concerning “a licence issued under section 25 Burial Act 1857” and “a warrant issued under section 23 Coroners Act 1988”. The former (a licence) is a permission to do that which would otherwise potentially lead to a criminal prosecution and is in the form of secondary legislation i.e. a statutory instrument; the latter (a warrant) is an order of a court to enable the coroner to fulfill his functions and is in the form of primary legislation i.e. statute law.

      The coronial functions date back to the Articles of Eyre 1194, where it was a requirement for the coroner to hold his inquest super visum corporis (on a view of the body) in company with the jury. This changed in 1926, with the jury no longer required to view the body but the coroner was still required to view the body up until the passing of the Coroners Act 1980. Between 1194 and 1980 the coroners power to order an exhumation was by virtue of common law, but section 4 Coroners Act 1980 put this on a statutory footing. Up until a least 1975 this coronial power to order exhumations was never challenged by the ecclesiastic authorities (except on one occasion in October 1839 when the local incumbent at St Mary’s Church, Hendon, lost the argument and the exhumation went ahead).

      Since time immemorial the Consistory Courts have had the discretionary power, by virtue of a faculty, to enable an exhumation to take place in order that the mortal remains could be relocated in an alternative setting. This is now governed by the Faculty Jurisdiction Rules 2000.

      It is asserted that with the closure of churchyards to burials post 1852 and the creation of cemeteries managed by local burial boards and private companies in the mid 19th century, the Burial Act 1857 was enacted for the purposes of enabling exhumation to take place from unconsecrated ground, and for the mortal remains to be relocated in an alternative setting, thus mirroring the Consistory Courts’ ability. Section 25 of this Act is now being utilised for purposes that it was never intended, i.e. reasons that fall outside of the coronial remit but which still fit within the circumstances of a criminal investigation, such as identification, erroneous burials, obtaining of DNA samples etc.

      Unfortunately for the practitioner (the professional investigator of crime) the Coroners Section of the MOJ do not view the Coroners Act 1988 or its successor the Coroners and Justice Act 2009 and the Burial Act 1857 as being Lex Specialis, and at the moment insist on intertwining the two where multi-occupancy graves are concerned. Likewise, the vast majority of Chancellors of Consistory Courts insist on intervening by requiring faculties to be issued, and making the situation even more embrangled.

      Returning now to the issue of Richard III, in February 2011 it was acknowledged that the Burial Act 1857 was not designed to cover the eventualities of archaeology:

      The Parliamentary Under Secretary for Justice, Jonathan Djanogly when he responded to a Freedom of Information Act request concerning exhumation and Archaeological Investigation of Human Remains, stated:

      ‘The Burial Act 1857 was not designed to regulate the exhumation of remains of archaeological interest Unfortunately, we have not been able to find an way to amend the 1857 Act without recourse to primary legislation given the limited availability of Parliamentary time and the Coalition Government’s existing commitments and priorities for legislative reform in other areas, I am afraid that we do not expect there to be an opportunity to amend the legislation in the short to medium term’.

      (Letter dated 10th February 2011 released under the reference foi 72059 accessed from http://www.justice.gov.uk/downloads/information-access-rights/foi-disclosure-log/justice-policy/foi-72059-annex-a.pdf

      It would be interesting to read alternative viewpoints on this issue.

  4. For the benefit of other readers, it is probably worthwhile giving some background to the Djanogly letter, which relates to the long-standing campaign by some archaeologists for a revue of the 1857 Act in relation to their activities, i.e. the time permitted before reburial, and the retention of some archaeological finds. An earlier letter by Ken Clarke in November 2010 covered much the same ground.

    In 2007 this lobbying achieved a degree of success when the MoJ said that section 25 licences were no longer required to exhume remains from land not recognisable as a place of burial on the surface. However, a number of authors point out that without the statutory protection of a s25 licence, archaeologists could be exposed to common law action in relation to removing a corpse from a grave without lawful authority. Consequently, in July 2008 the MoJ re-imposed the former requirements announcing that it would be undertaking a further review of burial legislation, which it did but decided not to proceed further.

  5. We have received the following comment from John Bradfield:

    RICHARD III – ILLEGALLY EXHUMED?

    David Pocklinton’s perspective on exhumation law is a very familiar one. I would like to present another.

    David gives the impression, that an exhumation licence must be obtained in all circumstances, unless some other aspect of statute law applies, or a Church of England permission known as a faculty is necessary. The latter only applies to land which has been and remains, legally consecrated by the Church of England. There is also the power of a coroner to exhume but only under statute law and only for the purpose of investigating the cause of one or more deaths.

    David’s perspective is both right and wrong. It is correct in that there are different sorts of permissions, depending upon the circumstances. It is wrong, in the sense that there are some properties, for which no permissions can be issued. That is so, unless it is possible to obtain a common law consent to exhume – presumably from a court. I have never found evidence of such a consent, from any time in the past.

    When no statute law applies but exhumations still go ahead, they are illegal under common law and there is no time limit in which to prosecute. I submit, that on the basis of the limited information available about the land in which Richard III was buried, his exhumation must have been illegal, because the licence was unlawful and therefore invalid. If that is so, then his remains were illegally obtained by the archaeologists and they cannot have lawful “custody and possession of (his) remains”.

    This crucial element of the legal picture was not put to the judicial review in the case of Elzbieta Rudewicz. It was presented to the Court of Appeal in a written witness statement but not discussed, analysed or pronounced upon. It was submitted by the Alice Barker Trust to the UK Supreme Court but there is no evidence of it having been considered or analysed.

    I also submit that a judicial review could do more than consider questions of administration law, in terms of how the Ministry of Justice arrives at decisions to issue exhumation licences. A judicial review would, given a fuller and more accurate picture of law, start at the beginning and work forward. Then, the first question for a judicial review must be, “Is it possible to issue a lawfully valid exhumation licence for the type of property in question?”

    As that question has never been considered by any court in the case of Elzbieta Rudewicz, a further appeal should be granted but is that still possible?

    A complaint needs to be lodged with the UK Supreme Court. To that end, those involved would appreciate any pro bono help, in having the true legal position examined with greater precision by the courts. That is necessary in the national interest, because the case of Elzbieta Rudewicz contradicts long established case law, which was not considered, amended or overturned. The outcome thus far is so confused, that contradictory decisions on legal matters may all be valid or invalid, as no-one could be sure one way or the other.

    One answer is for the police to pursue a common law prosecution over the exhumation of Richard III. He would then have the legacy of having served the national interest after death, by having stopped the outrageous and illegal destruction of graves created within living memory, despite protests from bereaved friends and relatives. Such a prosecution would finally stop civil servants issuing other legally invalid exhumation licences.

    The police are unlikely to intervene, not least as the government negligently or unwittingly condones and even encourages some forms of criminality, through decisions taken by public services. They confidently act in the knowledge that they do so with total impunity and that is unlikely to change.

    The provision of invalid exhumation licences, has resulted in the criminal destruction of graves and gravestones over decades. Since its inception in 1948, the NHS has never put a stop to the criminal detention of bodies in hospitals, after bereaved relatives and others have attempted to arrange collections.

    What’s wrong with dying? Part of the answer is that decision makers are not asking the right questions. Is there a Parliamentary Select Committee which could and should examine these and related issues around death and bereavement?

    For more details on exhumation law, see the Moonfruit website provided on behalf of the Alice Barker Trust. http://www.exhumationlaw.moonfruit.com/#/case-law/4562358566

    John Bradfield

    Writer on bereavement law.

  6. Pingback: RICHARD III - ILLEGALLY EXHUMED? | The Good Funeral Guide

  7. John, thank you for your comments which raise a number of interesting points, some of which I attempt to address below. However, after discussing this thread and the earlier one on Richard III, Frank and I agreed that further comments on these posts will now be closed.

    A theme common to many comments is the degree of uncertainty in this area of law. The critical section in Rudewicz is para. 21 and the proposition that “despite the enactment of the 1857 Act, the disinterment of a body remains an indictable common law offence”. Whilst sharing the learned judge’s doubt concerning the notion that “where Parliament has legislated that a particular action constitutes a summary offence carrying a sentence of a scale fine, a previously established common law indictable offence with an unlimited sanction for precisely the same action can survive”,the point was neither fully argued nor decided, and it may be that “there are differences between the common law and statutory offences which justify the survival of the former even in situations where the latter would apply”.

    A significant, yet unresolved, issue is therefore whether section 25 of the Burial Act 1857 is the default position where no other legislation exists. Its apparent universal application to unconsecrated land has not been amended subsequent to its enactment, and whilst some statutory provisions specifically disapply it, for example section 39, Channel Tunnel Rail Link Act 1996, the coronial provisions tend not to, despite the obvious tensions between them.

    With regard to the scope of judicial review, the Tribunals Judiciary states “judicial reviews are a challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached”, which appears to imply an examination of the conduct of the MoJ, for example, within the court’s appreciation of the current law. Whilst this might clarify matter, again it might not.

    On the matter of Select Committees, Parliament tends to be unwilling to act in sensitive areas such as this. For example, despite the shortage of burial space which has been highlighted in an environment select committee in 2001, surveys in 2004 and 2007, and a consultation, 2004, successive administrations have been unwilling to proceed in introducing new legislation to alleviate the problem. However, there is an All-Party Parliamentary Group for Funerals and Bereavement,”[t]o provide a forum for the discussion of funeral and bereavement issues”, here. This is not an Associate Parliamentary Group and its membership is therefore restricted to parliamentarians.

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