Alfred the Great’s Remains Exhumed?

On 10 February we reported that as a result of interest generated in Leicester University’s positive identification of the remains of Richard III, attention has been directed towards other “lost” English monarchs, of which King Alfred the Great (849–899) heads the list of likely possibilities.  There is no secret as to where his remains are currently thought to be been buried, although their movement between earlier sites introduces a degree of uncertainty[1].  On the Church of England’s excellent web site A Church Near You, the entry for the United Benefice St Bartholomew & St. Lawrence w. St. Swithun-upon-Kingsgate, Winchester states:

“St. Bartholomew’s was founded over 900 years ago and lay within the forecourt of Hyde Abbey (1110). It was enlarged with a tower built from stone from the Abbey after it was demolished at the Reformation. Visitors can view 5 original capitals and 1 springing stone thought to have come from the cloisters. These are some of the finest surviving examples of mediaeval sculpture in England.

Hyde Abbey was the final resting place for the bones of King Alfred the Great, his Queen Aelswitha and their son Edward the Elder. An unmarked grave outside the east window is disputed as the place where Alfred and his family were re-buried after the Abbey vaults were excavated in the mid 19th century.”

St Bartholomew’s and its local community has been undertaking research over the last three years, and in February 2013 it was reported that the University of Winchester was seeking permission to examine the grave and subject the bones to radiocarbon dating. The BBC reports Dr Katie Tucker of the University of Winchester saying:

“If the bones are from around the 10th Century then that is proof they are Alfred and his family because Hyde Abbey was not built until the 12th century and they would be no reason for any other bones from the 10th century to be there”

“This is a long shot because unlike with Richard III there is no complete skeleton. We only know they are five skulls and some bones and we also don’t know if the bones are monks from the abbey.”

This week events took a new turn when at the request of St Bartholomew’s PCC, the remains within the grave were exhumed under the authority and advice of the Chancellor of the Diocese of Winchester, Judge Christopher Clark QC, whose order imposes a confidentiality measure for reasons of security.  A news release from the Diocese of Winchester states:

“the immediate decision to carry out this exhumation was made by the PCC (Parochial Church Council) of St Bartholomew’s to counter the risk of theft from or vandalism to the grave; this is in light of heightened risk owing to widespread recent speculation about the significance of its contents”.

A diocesan spokesperson is reported as saying

“Although no application has yet been made to carry out any scientific investigation, we do acknowledge that there is local interest in learning more about the remains found in this grave.”

“This would be possible by means of a faculty application to the Consistory Court of The Diocese. This could be made by St Bartholomew’s Church, or by a private applicant, which could be the Hyde900 community group.”

“Of course, that would only be granted if the Court were satisfied with everything proposed, both legally and ethically. Whatever happens, the remains will stay in the care and protection of the Church and the Consistory Court until they are reinterred.”

Comment

The exhumation of the remains from St Bartholomew’s is different in law from that relating to Richard III as it falls within the Church of England’s faculty jurisdiction, although the rites under which they are re-interred will need to address similar issues.  Past case law suggests that unless there are special circumstances such as those in St Mary Sledmere (2007) 9 Ecc LJ 343 or Re Radcliffe Infirmary Burial Ground (2012) 14 Ecc LJ 139-140, archaeological interest per se is unlikely to form the grounds of a successful petition for a faculty to exhume and examine remains: see Re St Nicholas, Sevenoaks [2005] 1 WLR 1011, and Re Holy Trinity, Bosham [2004] Fam 125.

However, St Bartholomew presents the Consistory Court with a quite different situation:

  • the exhumation has already taken place, inter alia to protect the remains from unauthorized attempts at removal;
  • the exhumation was undertaken under the Church’s faculty jurisdiction, and whilst the protection of the bones remains with the church, their eventual reinterment is the only permitted  long-term solution.

Typically, the “long shot” nature of any proposed archaeological investigation would otherwise have precluded an application to exhume and investigate.  However, in the case, it might be argued that such work should now be authorized in order to distinguish between the different sets of bones, if possible, and to ensure appropriate levels of security when the remains are re-interred. However, this is not an easy task as the possibility of a definitive result, such as that in Leicester, seems doubtful.


[1] The BBC report states that “Alfred’s remains are known to have been moved several times since he was buried in the city’s old minster in 899 AD. They were moved in 904 to a new church to be alongside his wife and children, before being moved again to Hyde Abbey in 1110. The abbey was destroyed during the dissolution of the monasteries in 1539 and studies indicate the tomb was robbed. It is believed some bones were put on display in the 19th Century before being buried at St Bartholomew Church”.

Religion and Law round up – 10th February

The last seven days: the important, the interesting and the downright weird

Archbishop Welby “elected”

On 4 February Justin Welby became Archbishop of Canterbury at the Confirmation of Election ceremony at St Paul’s presided over by Archbishop of York. The new Archbishop took the oath of allegiance to the Queen and made a formal written declaration of assent to his election.

The Confirmation of Election is a very quaint procedure indeed. Justin Welby’s daughter Katharine (who has previously wondered on Twitter whether she was about to become the ABCD) tweeted: “Anywhere else in the world an ‘election’ that had only 1 candidate it was illegal to vote against would be called corruption”, followed up with “Just for clarification purposes: I don’t think he’s corrupt, I have known him many years + I am a supporter of the one candidate available”!

Archbishops’ websites

Now that Archbishop Justin is in office (even if he hasn’t yet been enthroned) he has a new website: http://www.archbishopofcanterbury.org/. However, his predecessor’s site has been archived rather than junked and the material relating to Archbishop Rowan can still be found at http://rowanwilliams.archbishopofcanterbury.org/.

Vacant sees – the queue for a crozier

Thinking Anglicans reports that following the recent announcements of the retirements of the Bishop of Exeter and the Bishop of Liverpool, a significant queue of potential candidates is forming for consideration by the Crown Nominations Commission, (CNC).  The CNC meets on two occasions per Vacancy in See to nominate candidates to the Crown for diocesan bishoprics and has only one unallocated slot in its programme for 2013.

This is relevant to two ongoing concerns of this blog: the length of time involved in decision-making within the Church of England and the representation of the laity. The CNC deliberations form only the central part of the lengthy decision-making process, the timing of which can be evinced from the lists maintained by Peter Owen of vacant sees and of suffragan bishoprics, here and here.

Vacancies are subject to the General Synod General Synod Vacancy In See Committees Regulation 1993, as amended, on which the CofE has issued a helpful briefingWith regard to the laity, the electoral college for a diocesan vacancy in see committee is the diocesan synod, which is required to meet on at least two occasions. For the CNC, lay representation is three members of General Synod and a minimum of three members elected by the diocesan vacancy in see committee.

Women in the C of E episcopate 

Following the facilitated conversations arranged by the Working Group on women bishops legislation this week and the meeting of the House of Bishops on February 7, the Church of England has published a “next steps” consultation paper: Women in the epIscopate: a new way forward GS MISC 1042. The paper suggests that there are various ways of interpreting the vote that took place on 20 November:

“But one thing on which there is a very wide measure of consensus is that the outcome of that day has left the Church of England in a profoundly unsatisfactory and unsustainable position. There are several reasons for this:

  • It is apparent that opening all three orders of ministry equally to men and women has a very wide measure of support across the Church of England;
  • For those women already serving in the ordained ministry, the Church of England’s continued indecision is undermining and harmful to morale;
  • Even for those with theological difficulties over the ministry of women as priests and bishops there is little appeal in a further prolonged period of debate and uncertainty;
  • Wider society – including its representatives in Parliament – cannot comprehend why the Church of England has failed to resolve the issue and expects it now to do so as a matter of urgency” [emphasis in original].

Possibly it is the last of these reasons that is the most pressing.

Synod members and others have been invited to help the working group in the next phase of its work by:

  • indicating whether they endorse the propositions which emerged from the recent conversations;
  • offering initial comments on the spectrum of possibilities sketched out in in the document; and
  • offering any other comments that they would want the Working Group and the House of Bishops to take into account as they carry this work forward.

Responses should be sent to women.bishops@churchofengland.org “if at all possible” by Thursday 28 February in advance of the next meeting of the Working Group on 4 March.

Marriage (Same Sex Couples) Bill

The Marriage (Same Sex Couples) Bill was given a second reading in the Commons on on 5 February by 400 votes to 175 – with the vast majority of those voting “No” coming from the Conservative benches. The House of Commons Library has produced a helpful briefing paper on the Bill that can be downloaded from here and we published a short guest post on the subject by Gavin Ward.

The Bill is to be carried over into the new Session of Parliament starting in May: presumably so that if it all goes pear-shaped in the Lords it will still be possible to reintroduce it in Session 2014–15 and invoke the Parliament Acts. It is now with the Public Bill Committee, which will meet for the first time on Tuesday 12 February to take oral evidence. After the oral evidence sessions the Committee will undertake a detailed, clause-by-clause examination of the Bill; and those with relevant expertise and experience or a special interest in the proposed legislation are invited to submit their views by e-mail to scrutiny@parliament.uk before Tuesday 12 March 2013.

On 5 February DCMS released its response to the Opinion prepared for the Coalition for Marriage by Aidan O’Neill QC (a summary of which is available here) and an analysis of the various scenarios propounded by him.

The role of Europe in same-sex marriage

stool of repentanceFollowing last week’s mis-reporting of Re AI and MT [2013] EWHC 100 (Fam) which was roundly condemned by us and by UKHRB, UKIP is this week’s candidate for the “legal naughty step/stool of repentance” with its allegation in EU proposal is behind same-sex marriage furore”.  This suggests that in the near future, legislation would be introduced so that

“If a couple were to marry in Belgium, Spain, Portugal or Sweden where same-sex marriage is possible, the EU will say that they have to be given the same legal rights in whichever member state they then chose to live – even if that state itself opposes the introduction of same-sex marriage.”

The fact that leading Tory blogger Archbishop Cranmer (no relation) was tipped off by UKIP about this anti-European allegation during the Commons debate on same-sex marriage should have set alarm bells ringing – and “His Grace” didn’t in fact endorse it but merely brought it to his readers’ attention as a possibility.  As EUReferendum and this blog indicated, the actual position is far more tenuous that UKIP suggests.

In a subsequent post, Richard North of EUReferendum examines an article by Christopher Booker in The Telegraph, the role of the Council of Europe in the “gay marriage” furore and attempts to establish how and why this issue suddenly erupted from nowhere to the top of the political agenda.

The European Ombudsman, the Commission and humanism 

We reported that the European Ombudsman had been critical of the Commission’s refusal of the request by the European Humanist Federation to hold a dialogue seminar on the exemption for religious organisations under the Framework Directive 2000/78/EC on equal treatment in employment and occupation. The Ombudsman clearly regards the Federation as coming within the scope of Article 17 of the Treaty on the Functioning of the European Union as a “philosophical [or] non-confessional organisation” – rightly so, in our view – and decided that the Commission had been guilty of maladministration.

More on finding dead kings in car-parks 

A press conference at the University of Leicester on 4 February confirmed that a skeleton found in a car park in the city was indeed that of Richard III, thereby ending months of speculation. This led to a new round of conjecture as to what would happen next: David blogged about it here.

Leicester University’s successful research has provided an incentive to find other English monarchs whose remains remain to be found and identified.  First up is King Alfred the Great (849–899), who was born in Wantage and whose remains may be in the church of St Bartholomew, Winchester, as reported here. The University of Winchester is seeking permission to examine the grave; but since this is in an Anglican church rather than a council car park it is subject to the Church of England’s faculty jurisdiction.

Alfred, Wantage, May 2012Steven Gallagher suggests that “whereas archaeological interest has consistently been considered a good and proper reason to grant a licence for exhumation, it was, and is, unlikely to form the grounds of a successful petition for a faculty, as in Re St Nicholas, Sevenoaks [2005] 1 WLR 1011, and Re Holy Trinity, Bosham [2004] Fam 125.

Another “missing monarch” is Henry I, whose remains are thought to be somewhere in Reading Abbey, although there appears to be less certainty in finding them since they were buried in a silver coffin which would probably have been a prime target during the dissolution of the monasteries, here

Preston Down yet again

We reported the Charity Commission’s updated statement on the Preston Down Trust of the Hales Exclusive Brethren to the effect that the Commission had agreed to a stay in the proceedings pending before the First-tier Tribunal (Charity) in the hope of finding some kind of agreed accommodation over the issue of public benefit. The Commission reiterated, however, that

“any application for registration put forward by the Exclusive Brethren must set out exclusively charitable purposes and explain how these will be advanced for the public benefit”

and that the application would have to satisfy both the Commission and the Attorney General as to how any changes to the current activities of the Trust would advance religion for the public benefit.

And finally…

The BBC website currently carries the rather gnomic strap-line Amish beard-cutter Mullet jailed. On further inspection, no former professional footballer appears to have been involved.

Landslip liability for Whitby church?

As a consequence of the recent heavy rainfall, the British Geological Survey has reported a four- to five-fold increase in the number of landslides in the UK for July and December when compared with previous years.  Contributing to this pattern, the (visually) most prominent church in Whitby has suffered the loss of part of its churchyard, which was made famous in the 19th century by Bram Stoker.  In Chapter 6 it is described as

“the nicest spot in Whitby, for it lies right over the town, and has a full view of the harbour and all up the bay to where the headland called Kettleness stretches out into the sea. It descends so steeply over the harbour that part of the bank has fallen away, and some of the graves have been destroyed.”

In keeping with its literary past, there are reports of human bones Whitby IMG_2111(5)cascading down on the homes below, but away from the headlines, it appears as though the material surrounding some of the older burials has been washed away, leaving some bones exposed and others washed down into the gardens of the homes and Fortune’s kipper smoke house.  These have been reinterred by the church in a more secure part of the churchyard, and whilst there are clearly issues associated with the interment of different parts of the same body in spearate parts of the churchyard, these are not the major problem facing the church.

Comment

Legislation

The present landslip has been attributed to a fractured drainage pipe, but as our photograph taken on 3rd November demonstrates, even before the landslip later in the month, the houses were in a vulnerable position.  Those addressing the resultant liabilities will no doubt be mindful of Leakey & Ors v National Trust [1979] EWCA Civ 5, [1980] QB 485 which, following Goldman v Hargrave & Ors [1966] UKPC 2, held that a defendant is liable under the tort of negligence for a naturally-occurring hazard on the land if they are aware of the danger and failed to act with reasonable prudence to remove the hazard.  The circumstances of Leakey are quite similar to those at St Mary’s and elsewhere in Whitby,

“As a result of the operation of natural agencies on the steep contours of Burrow Mump, [the land owned by the National Trust], where its western slope rises in a bank at the back of the plaintiffs’ houses, there have from time to time over the years, for many years past, been slides, often quite minor, sometimes more substantial, of soil, rocks, tree-roots and such-like detritus, from the bank, which belongs to the defendants, on to land belonging to each of the plaintiffs . . . . . “

However, in Holbeck Hall Hotel Limited & or v Scarborough Borough Council [2000] 2 All ER 705 [CA] which related to a landslip further down the coast (but within the boundaries of the same BC), the Court of Appeal held that the Council was not liable, on the grounds that when assessing the scope of the duty imposed under Leakey, the courts are to take into account the resources of the defendant.  Stuart Smith LJ stated, [at 46]:

“the law must take account of the fact that the occupier on whom the duty is cast has, ex hypothesi, had this hazard thrust upon him through no seeking or fault of his own. His interest, and his resources, whether physical or material, may be of a very modest character either in relation to the magnitude of the hazard, or as compared with those of his threatened neighbour. A rule which required of him in such unsought circumstances in his neighbour’s interest a physical effort of which he is not capable, or an excessive expenditure of money, would be unenforceable or unjust. . . . . . . .One may say in general terms that the existence of a duty must be based upon knowledge of the hazard, ability to foresee the consequences of not checking or removing it, and the ability to abate it”.

The legal position on churchyard maintenance was considered by the Select Committee on Environment, Transport and Regional Affairs in its Eighth Report in 2001, and more recently by the Church of England in its own legal guidance which states:

“Although the legal ownership of a churchyard, either open or closed, is usually vested in the incumbent, his own rights and obligations in respect of it are very limited.

Today, under Canon F13, responsibility for maintaining the churchyard in good condition and maintaining fences rests with the parochial church council (PCC), except in the case of a burial ground which has been closed by Order in Council and where the obligation has been passed to the local authority (see paragraphs 14-18), but the PCC can seek financial help from local authorities and other public bodies.

The PCC, whatever the funds at its disposal, must take appropriate steps to deal with any dangerous situation, such as an unsafe monument. The incumbent and the PCC should be adequately covered by insurance against any damages which may be awarded in the event of an accident, but the insured will still be required to take all reasonable steps to remedy any defect which is discovered.” [Emphasis added]

In the case of St Mary’s, the churchyard has been closed since 1865 and the Diocese of York is reported to be carrying out engineering work to stabilise the ground.  There has been concern for the church, a Grade I listed building, rated as ‘four stars’ Simon Jenkins in England’s Thousand Best Churches, (Penguin, 1999), but perhaps better described on the CofE site A Church near you as

“ . . . .  a church like no other. The character of Whitby has seeped into its fabric, and it stands as a testimony to the independent maritime spirit of the town. Each successive generation has left its mark on the original 11th century foundation.

The building is remarkable for its box pews, triple decker pulpit, and Elizabethan communion table, as well as several fascinating details. For those devoted to St. Hilda, it is a place of pilgrimage, and a warm welcome awaits you from our small but stalwart congregation.”

The church itself is not at risk of collapsing, nor is the ‘newer’ Whitby Abbey, beyond.

Other factors

The “Dracula connection” to Whitby and in particular to St Mary’s churchyard, is a source of contention between the church and those wishing to exploit this link, which some estimate as being worth ~£1M to the town each year.  In 2011, photographers were banned from taking pictures in the churchyard over the Whitby Gothic Weekend of Goths posing on or near gravestones, but close examination of our 2012 photograph will reveal the many visitors lining the edge of the churchyard, and (to the right of the seagull) climbing the famous 199 steps to the church and the Abbey. As custodians of Whitby Abbey, English Heritage is more than willing to exploit these weekends, with mock Victorian funerals, &c.

Whitby Abbey, IMG_2084The church is faced with two dilemmas: one of ensuring the safety of its many visitors, particularly on the biannual Goth Weekends; and the other on how to respond to a post-landslip request to use the 199 steps (which the church also owns) and churchyard for a vampire-based film. The churchwarden is reported to have given an emphatic “no” to the proposal, but the decision on their use rests with the incumbent.

The filming of controversial scenes in churches is not unknown, here, and astute readers will recall that the advice of Bishop Justin Welby was sought in relation to the fliming of a controversial episode of the 1960s police drama Inspector George Gently. In this case

“the episode reflected the cathedral’s history of having been a place of both sanctuary and brutality and was a kind of morality play in which it was obvious the perpetrator of the violence was bad, and good and evil were clearly identified.”

A subsequent report in the Church Times has suggested that the Dracula link could help to meet Whitby’s repair bill which is approaching £40,000, as news of the story has brought offers of help from around the world.

Of concerts and performances in churches and cathedrals

Earlier posts here and here have considered the discrimination issues faced by church authorities regarding the commercial letting of churches, chapels and church halls to other groups for yoga classes, concerts and other activities.  To the Portsmouth example of ‘spiritual yoga sessions’ should be added an earlier event in which the High Priestess at the Crystal Cauldron was refused the use of Our Lady’s Social Club in Shaw Heath, Stockport for her Pagan group’s Annual Witches’ Ball.

The general issues concerning what constitutes a religion are discussed in Chapter 3 of Law and Religion, and one of the few articles on the law and witchcraft is ‘Witchcraft: from Crime to Civil Liberty’ by Caroline Briggs-Harris, (2011) Law and Justice, Trinity/Michaelmas, No 167, p 54 which notes:

‘courts appear to be moving towards accepting a wider definition of religion and faith.  Paganism and witchcraft, although not yet specifically identified by the courts, could be deemed to fall within the protection afforded by the human rights legislation’.

But not yet.  However, Gloucester Cathedral appeared quite willing to permit the filming Harry Potter and the Sorcerers’ Stone.  The cloisters and crypt were transformed into Hogwart’s School of Witchcraft and Wizardry, causing upset to a local Christian group who complained that the cathedral was no place for a story about magic, sorcery and witchcraft.

Durham Cathedral was equally willing to allow the filming of the controversial final episode of the 1960s police drama Inspector George Gently, which featured a gunfight in the Cathedral, where young choristers are seen fleeing from rehearsals before characters are shot dead and collapse in the central nave.

The Northern Echo reports that Chapter of Durham Cathedral said ‘gave much consideration to the programme’s content before making a decision on filming and sought the advice of the bishop’.  It continues

‘the episode reflected the cathedral’s history of having been a place of both sanctuary and brutality and was a kind of morality play in which it was obvious the perpetrator of the violence was bad, and good and evil were clearly identified.’

In fact, a search on the internet for churches and cathedrals that have appeared in films will reveal that many have been used as such at some time or other.  Perhaps most problematic was the filming of the 1976 horror film ‘The Omen’, and the subsequent adverse reaction of those who might otherwise have visited the Cathedral, here.  The Dean voiced strong objections when the film was remade, (in Prague), but an official Church of England spokesperson ‘used more measured tones to fight its corner over The Omen’ is quoted as describing the Book of Revelation as a ‘difficult text full of allegory and allusion’.

The many issues to be addressed when permitting third parties to use an (Church of England) church building were reviewed in an article by Charles George QC, a former Chancellor of the Diocese of Southwark, ‘Shared Use of Church Buildings, or, Is nothing Sacred? (2002) 6 Ecc. LJ (31) 306.  He concluded that the nineteenth century outlawing of pure secular uses on consecrated land was (in 2002) merely part of legal history, and the present position was that the use:

  • need not be ecclesiastical in purpose, provided the primary use of the church remains that of worship;
  • need not be ancillary to worship;
  • not be pastoral in motivation;
  • can be purely commercial; and
  • the prime motivation for allowing the use can be to raise revenue for the church.

The only impermissible uses were those which:

  • prevent the primary use of the church being for the purpose of worship; or
  • involve activities which are unsuitable in a church, either because of some conflict with the teaching of the church, or because they would be unlikely to be regarded as acceptable by right-thinking members of the Church of England.

The situation has  progressed and the CofE now actively encourages the use of churches as venues for wedding receptions, here, and Diocese of London gives detailed practical and very useful advice on filming within the diocese, here, and on ‘marketing your church as a location’.

When addressing the use of a church building by other churches, faith communities and voluntary groups, here, the underlying issue within the Roman Catholic Church is how the building is considered: as domus Dei, the house of God; or domus ecclesiae, the house of the People of God.  After Vatican II there was a tendency to move from the first approach to the second, although the first concept remained important.  The guidelines note:

‘If the Church is considered the house of the People of God, then the use of the church will depend in part on who is seen as the ‘People of God’.

The present wider use of churches and cathedrals shares with this approach a common appreciation of a ‘sacred space’ within the building, although the delineation of that ‘sacred space’ and the permissible uses of the building may differ.

Health and Safety in the churchyard – national guidance and local interpretation

Whilst the substance of the concerns raised regarding the re-use of jam-jars, reported hereand here, has little to do with the health and safety in the churchyards, both issues have a common thread of the local interpretation of national guidance, and the application of legislation to the practical situation.  Those seeking guidance, either on a personal basis or on behalf of a group with common interests, are often left confused and left to their own interpretation.

IMG_1933(3)Following reports in the media, here, and here, that pots, vases and other items had been removed from the graves in a churchyard on ‘health and safety grounds’, the Health and Safety Executive, (HSE), issued a clarification.  This was placed on its web page devoted to ‘Putting the Record Straight’, i.e. ‘responding to health and safety related articles and reports in the British media’, and unlike the FSA in the jam-jars situation, issued the unambiguous statement:

‘There is nothing in health and safety law that would prevent people from placing pots or vases on the resting place of their loved ones. However, as the ownership and upkeep of the grounds falls to the Church, the Church is at liberty to make whatever decisions it feels appropriate in which to maintain its graveyard’.

The issue had arisen as a result of a local interpretation of the Church of England’s own Churchyard Regulations and those of the diocese, neither of which made reference to health and safety issues.  Under ecclesiastical law, the ownership of the churchyard is vested in the incumbent, whereas the control over the churchyard lies with the Chancellor of the Diocese.  Although every change in a churchyard requires the authority of the Chancellor, some aspects are generally delegated to the incumbent of Rural/Area Dean during a vacancy.  The decision to remove the flower containers was apparently made locally and in line with diocesan regulation that:

‘Permission may be given for a single flower vase to be sunk in the base of the headstone and it may, if granted, have a stone cover to be placed over the flower vase in the winter’, [Regulation 15],

although it is not clear whether this is for aesthetic or health and safety considerations.

Comment

The regulations concerning churchyards and graveyards are complex, and the HSE’s clarification represents only one aspect of their management and maintenance.  Even in this narrow area, whilst statutory health and safety legislation does not preclude the circumstances referred to, the common law of negligence must also be considered and whether an accident resulting from the breakage of vases &c would be regarded as ‘reasonable foreseeable’.  The HSE statement could be taken as suggesting that such an incident was unlikely, although a narrower interpretation might be the view that specific provisions on this issue were not included in any statutory provision.

The range of safety issues associated with churchyards is demonstrated in the Church of England’s Guidance Legal Advisory Commission of the General Synod: The Maintenance of Monuments in Closed Churchyards.  In the case of monuments in churchyards closed by an Order in Council, the primary responsibility rests with the owner of the monument.  If the owner defaults, a secondary responsibility is imposed on the body having the duty to maintain the closed churchyard, which may be the PCC or the local authority if it has taken over its maintenance.  Some dioceses publish detailed health and safety advice concerning churchyards in general, here, and the charity Caring for God’s Acre has issued a scheme for risk assessment, here, an useful exercise whatever the legislative requirements.

Unfortunately, there is no such definitive test for jam-jars, and some might be tempted to follow the advice of W S Gilbert’ Pooh-Bah, (though not of this blog),

“Oh, as your Solicitor, I should have no hesitation in saying ‘Chance it —‘ ”

Messages from the grave – QR Codes on headstones

An undertaker in Poole, Dorset, UK is now offering to provide Quick Response (QR) Codes to be included on the headstones of graves, or positioned on or near other items commemorating the departed such as trees, shrubs, seats &c.  The code links to a page on a specific website and gives an opportunity for the inclusion of text, photographs and video material, and for subsequent updates with additional material.  It is reported that a QP Code on a headstone was first used at St Mary the Virgin, Lytchett Matravers.

At first sight, this initiative appears to provide a flexible means of providing detailed information on a headstone that would otherwise be impossible to include, but the use of this technology does raise a number of questions regarding it use and its long-term value.

Comment

There are normally quite rigorous controls on the materials, shape, location and inscriptions on headstones in most churchyards and graveyards, and consecrated ground within Church of England churchyards falls within the faculty jurisdiction of its Consistory Courts.  The management of these churchyards falls within the Pastoral Measure 1983, and whilst individual dioceses have developed their own Churchyard Regulations, these encompass the requirements of the measure and the guidance within the Churchyards Handbook (3rd Edition.).

In the Diocese of Exeter as elsewhere, a limited authority is delegated by the Chancellor to the incumbent, priest-in-charge (or Rural Dean during a vacancy) to allow headstones to be erected which fall within the terms and conditions of the delegation.  With regard to the Epitaph,

‘Inscriptions must be simple, reverent, appropriate and of Christian significance. They must be incised, and lettering may be in black, white or silver paint or gold leaf (not gold paint). Plastic and lead inlaid lettering is not permitted. Subsequent additions to an inscription must be approved separately. By way of advertisement or trademark, only the mason’s name may be inscribed at the side or on the reverse in unleaded letters, no larger than ½” (13 mm) in height.’

The Exeter Churchyard Regulations include a Pro Forma for Application for Introduction of Monument or Tablet in a Churchyard, (Annex A), whereas those of the Oxford Diocese are more prescriptive and in addition to:

 ‘fall[ing] squarely within the ambit of these Regulations (and any supplementary regulations imposed by the PCC and authorised by the Consistory Court)’,

require that

‘a contract is entered into by the legal personal representative or executor (usually, but not always, a close relative of the deceased), seeking to erect the it. The agreement is to be in the form [within the Regulations]’,

and includes the condition that:

‘[the Applicant has] also understand that the authorisation that is given . . . .  to erect a memorial is subject to the provisions of the Pastoral Measure 1983 (or any replacement Measure) and in the first instance only permits the memorial to remain in the churchyard for a period of 100 years. [The Applicant] acknowledge[s] that this period of time may be shortened, or extended, by a faculty of the Consistory Court.

The main problem with the use of QR Codes in this context would therefore appear to be three-fold:

  • Given the potential of including a wide range of material via a QR Code, the requirements of being ‘simple, reverent, appropriate and of Christian significance’ are unlikely to be met;
  • The content of the material accessed by the QR Code is controlled by the executor (or anyone with an appropriate password), and not by the incumbent, and may be changed at any time in the future;
  • The longevity of QR Code technology or the associated web facilities to access that data may not withstand the test of time, (e.g. the video recording technologies of: Betamax; VHS; and DVDs).

Of these, the technology issue would seem to be the most problematic, since it is necessary to match the longevity of a physical memorial, (i.e. for up to 100 years or so), with an upgradable electronic data-retention system.

Whilst control over the content will prove difficult if left unchecked, the existing faculty system provides a framework within which the use of QP codes can be licenced and controlled.  Given the widespread interest in genealogy, there are significant business opportunities for a holder of comprehensive information on the deceased.  Perhaps the Church of England should take the initiative and develop such a system itself whereby it would be able to retain control, monitor the information, and generate income?

The Church of England cannot ignore this new technology. As a very minimum it must revise its guidance to acknowledge the potential widespread use of a technique that will seem attractive to many of those wishing to remember departed relatives.  It might also explore whether it should itself become involved in the licensing and use of this new technology.

Britain Leads in Natural Burials, but . . .

A new study by Durham University suggests that ‘Britain is leading the way globally in ‘natural– or woodland burials where people are typically buried in a woodland setting, field or meadow in wicker, cardboard, or other ecologically appropriate coffins’.  The findings of the work are published in the book Natural Burial: Traditional-Secular Spiritualities and Funeral Innovation by Professor Douglas Davies, Director of the University’s Centre for Death and Life Studies and Dr Hannah Rumble, a Research Associate at Durham based at the University of Bath.  The book will be formally launched at an event in Durham on 7th September to coincide with the opening of Britain’s newest woodland burial site on South Road, Durham City.

Comment

The concept of environmentally-friendly, ‘green’ funerals is relatively new, and ‘woodland’ or ‘natural’ burials were unknown prior to 1993 when Carlisle City Council opened the first burial ground of this type in the UK in a woodland site on an unused part of the municipal cemetery.  Since then there has been a significant increase and there are now over 260 sites many of which are members of the Association of Natural Burial Grounds (ANBG) which was established by The Natural Death Centre in 1994.  The Durham research found a number of reasons why people choose natural burials including:

  • Environmental concerns about other forms of funeral such as cremation;
  • Reconnecting with nature and ‘returning to the earth’ in a peaceful woodland setting;
  • Reducing the burden on families to tend more traditional graves; and
  • The cost of traditional funerals.

Doe has observed that ‘the disposal of human remains is regulated by a complex tangle of state-made and church-made law’, [N Doe, The Legal Framework of the Church of England, (Clarendon Press, 1996, Oxford), Chapter 14].  Unlike Church of England churchyards and municipal cemeteries, ‘green burial’ is not subject to specific statutory legislation and Ministry of Justice Guidance notes that whereas:

‘most burial law is directed at particular types of burial grounds and various burial authorities who own the burial grounds’ . . . .

‘privately owned natural burial grounds are not covered by the Local Authorities Cemeteries Order 1977 (LACO) provisions and are largely unregulated’.

Nevertheless, ANBG Members are subject to its Code of Conduct, and to the general legislative provisions associated with: burial law; authority for burial; health and safety; contract and employment; planning regulations; and the environmental legislation, including that relating to wildlife.  Of the ~260 natural sites only those of the St Albans Burial Trust and Much Hoole Woodland Burial Ground include consecrated areas, and these will additionally fall within the faculty jurisdiction of the Church of England.

Although cremation has long been favoured over burial, the UK is facing a major shortage of burial space and a 2004 Home Office Report indicated that there was further capacity for only 20 to 25 more years.  Successive administrations have been aware of the problem which has been considered by a Select Committee in 2001, surveys in 2004 and 2007, and a consultation in 2004.  However, they have been anxious to maintain the control of municipal burial within local control, and an increasing number of local authorities are seeking assistance from the private sector within the financing and management of cemeteries and crematoria.

Whilst the trend towards green burials is to be welcomed, there remain serious legal, financial and operational issues to be addressed for the whole sector.