Some practical considerations

An earlier post considered the recent consistory court judgment In the Matter of SMF deceased [2019] ECC Lee 4 on whether cremated remains could be exhumed to permit a small quantity of the buried ashes to be processed to form a glass-like material to be set into a ring as a memento of the deceased. This post addresses the broader issues raised in the judgment: access to cremation ashes; religious considerations; and some practical issues.

Access to cremation ashes

Unlike many countries in mainland Europe which have strict rules governing how cremation ashes may be managed, the regime in the UK is relatively relaxed. Under Regulation 30, The Cremation (England and Wales) Regulations 2008 SI 2841, following a cremation, the cremation authority must give the ashes to the applicant (for the cremation) or a person nominated by the applicant. If no preference is expressed, the cremation authority must retain the ashes and arrange for their burial or scattering; if left temporarily in its care, the authority must give the applicant 14 days notice of its intentions for disposal.

Similar provisions apply in Scotland under sections 51 and 52, Burial and Cremation (Scotland) Act 2016; these provide for the ashes to be retained by the cremation authority during the specified period and made available for collection before the expiry of that period by the applicant, or by a funeral director appointed by the applicant; or to be disposed of by the cremation authority in a manner indicated by itself or by the applicant.

These secular provisions, combined with the time interval between committing the body for cremation and the burial of the cremated remains provide ample opportunity for obtaining a sample of ashes for conversion into jewellery. This was apparently the case in the example quoted by the petitioner in relation to her father-in-law’s ashes [i.e. not those which were the subject of the petition] in In the Matter of SMF deceased [9].

Religious considerations

The approaches of different faith groups to the treatment of ashes are summarized in our post Scattering ashes on water and land – some basics. We noted that the scattering of remains is discouraged by the Church of England and the Roman Catholic Church; Bursell notes that strewing is lawful the CofE, [ref. 1]. Underpinning this approach is the churches’ position on the permanence of Christian burial, reviewed here and here in relation to the Church of England.

In the Catholic Church, there is little ambiguity in the official position, which is contained in the Instruction Ad resurgendum cum Christo regarding the burial of the deceased and the conservation of the ashes in the case of cremation, dated 25 October 2016; this states inter alia:

• the ashes must be laid to rest in a sacred place … in a cemetery or … in a church or an area which has been set aside for this purpose, and so dedicated by the competent ecclesial authority [5];
• the conservation of the ashes of the departed in a domestic residence is not permitted, except in grave and exceptional cases, agreed by the Ordinary [6];
• ashes may not be divided among various family members [6];
• when the deceased notoriously has requested cremation and the scattering of their ashes for reasons contrary to the Christian faith, a Christian funeral must be denied to that person according to the norms of the law [8].

In June 2019, the General Synod Legal Advisory Commission published new guidance Burial of a portion of a deceased’s body or ashes. This was considered in more detail in an earlier post, and the sections of relevance to the present considerations state:

• It is the opinion of the Commission that the word “ashes of a deceased body” in this context should be construed ejusdem generis with the preceding word “corpse” so as to refer to the ashes of the main physical body of a deceased person and thus falling within the mandatory requirements of Canon B 38 rather than (subject to what is said below) referring to any lesser amount of ashes pertaining to parts of that body. This being so, there is no duty on the minister to bury, for example, a separate heart or the ashes of such a heart unless, subject to other legal requirements, it is to complete the previous burial of the deceased’s body or ashes.
• The separate burial of those organs, such as a heart, would not amount to the burial of a corpse or body. The same reasoning applies in relation to the ashes of a deceased person or parts of that person’s body. The removal of “some few particles of … cremated remains” prior to interment would be regarded as de minimis and the remaining ashes would still constitute those of a human body [reference 9, infra]. In cases of doubt the matter must be referred to the bishop and the minister must obey his order and direction: see Canon B 38, paragraph 6.
• Reference 9: See the exhumation case of In the Matter of Carleton Cemetery (Blackburn Diocese, petition number 61 of 2015), a petition for permission to remove “a little of her mother’s cremated remains placed in a ring” (see paragraph 14). In the course of his judgment at paragraph 17 Chancellor Bullimore said: “It is worth remembering that in times gone by, families had death masks taken of those recently deceased, usually I believe eminent people, and in more recent times they kept clippings of hair or nails in lockets or other personal jewellery, as a link with loved ones.” The considerations pertaining to a petition for exhumation are necessarily wider than those pertaining to the original burial. For an interesting exhumation case concerning ashes see In the matter of St Aidan’s Throckington Churchyard [2016] ECC New 1.

With regard to In the Matter of SMF deceased, the Chancellor noted that whilst others might take a different view, he tended to the traditional understanding that cremated ashes should be treated in like fashion to a human body and interred in one place, undivided. However, for the purposes of the petition, he expressly left that matter undecided [23]. Of importance was “the high hurdle set for petitioners in order to demonstrate exceptionality” in the line of cases concerning petitions for an exhumation so tissue or bone samples can be taken for DNA analysis or similar in paragraph 24, v supra. Although the case was unusual, it was not exceptional and since it did not meet the relevant criteria on exceptionality, the petition was refused on these grounds [25].

Practical issues

Cremation ashes

There are two important and interrelated practical issues: the composition of “ashes”; and the quantity of “ashes” retrieved after cremation. Both are dependent on several factors including the physical attributes of the deceased, and the operation of the cremator. The legal definitions of “ashes” used in the England and Wales [ref. 3] and in Scotland [ref. 4] tend to blur the issue further. In our post Cremation “ashes” and their legal definition we considered the practicalities of cremation and the formation of “ashes”, and the problems associated with their definition. The practical issues associated with the formation and definition of “ashes” were addressed extensively in the  Mortonhall report and the ICC/Bonomy Report. Although these focussed on infant cremation, important insights were provided on the more general issues relating to the processes involved.

In the context of a strict interpretation of the traditional position within the Church of England on the burial of remains [ref.5], the Mortonhall/Bonomy evidence suggests that it would be difficult to guarantee that the cremation ashes which are collected from the primary combustion chamber equate to the total remains of the deceased, when considered with in terms of quantity produced or their composition.

Even if 100% of the remains were collected and these contained no extraneous material, the quantity of ashes required to create jewellery represents only a minute fraction of the total. Typically, the cremation of an adult results in 2.5 to 3.5kg of ashes, depending upon bone structure rather than body mass. A ~5 gram sample (i.e. roughly equivalent to “a teaspoon”) from the equates to about 0.08% to 0.06% by mass. We would also suggest that the efficiency with which ashes are collected could not be guaranteed to within ±5 grams.

Comment

The above discussion confirms that in practical terms, there is normally ample opportunity for the collection of a sampled of the cremated remains for subsequent use in jewellery. Furthermore, the quantity required is very small and would be regarded as de minimis for the purposes of the Church of England guidance Burial of a portion of a deceased’s body or ashes, and “the remaining ashes would still constitute those of a human body”. We have suggested that whilst this relates to the duty on a minister in relation to burial, and in the absence of further clarification, this does not necessarily equate to the traditional belief within the Church that cremated ashes should be treated in like fashion to a human body and interred in one place, undivided.

References 

[1]. “Scattering” is the broadcasting of the ashes into the air or the casting of them onto the ground without thereafter covering them; “strewing” is pouring of the ashes directly into the ground, or directly onto the ground before immediately covering them over with earth. R Bursell, Aspects of Burial and Exhumation, (2017) 19 Ecc LJ 169–192.

[2]. This post concerns addresses the issue where cremation ashes are processed into a glass-like material for the creation of remembrance jewellery. The phrase “ashes to glass” is used as a generic description of the type of processes envisaged in the petition, and except where referred to by the court, does not relate to any particular proprietary process or product.

[3]. The Cremation (England and Wales) (Amendment) Regulations 2016

“2. The Cremation (England and Wales) Regulations 2008 are amended as follows.
3. In regulation 2(1) in the appropriate place insert— “ ’ashes’ means all the material left in the cremator after a cremation, and following— (a) the removal of any metal, and (b) any subsequent grinding or other process which is applied to the material;”.”

[4]. Burial and Cremation (Scotland) Act 2016

45 Meaning of “cremation” and “ashes”

(1) In this Act, “cremation” means the burning of human remains; and includes— (a) where a grinding process is applied to the burnt human remains, that process, and (b) where any other process is applied to the burnt human remains, that other process.
(2) In this Act, “ashes” means the material (other than any metal) to which human remains are reduced by cremation.
(3) In this section— “coffin” includes any type of receptacle; “human remains” includes, where remains are clothed, in a coffin or with any other thing, the clothing, coffin or other thing.

[5]. Cremated ashes should be treated in like fashion to a human body and interred in one place, undivided – a view which was expressed in In the Matter of SMF deceased [2019] ECC Lee 4 (but was not determinative in the judgment), and which is reinforced by paragraph 6 of the General Synod Legal Advisory Commission published new guidance Burial of a portion of a deceased’s body or ashes.