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 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