Exhumation after home burial

On 10 January, The Independent reported “For sale: Four-bedroom terraced house, £650,000 – with previous owners’ bodies in back garden”. The estate agent’s description of this property in Teddington ended with the statement “[t]he rear garden measures approximately 50ft in depth and has significant width. It is important to note that the previous owners’ last wishes were to be buried in this garden, which is where both currently rest..” It continued “if the new owners did want to remove the bodies, they would have to seek permission from the next of kin and pay an estimated £7,000”. A quick call to Curchods, the estate agents, by The Guardian elicited further information,

“the husband and wife … are both interred under a floral display in the garden. But … the husband indicated before he died that he was happy for them to be moved if necessary in the future. With no direct relatives still living, an exhumation licence should be easy for buyers to secure.”

Readers who answered question 4 of our 2012 End of Term Quiz will be aware that certain environmental criteria must be satisfied prior to home burial of human remains [1]. Additionally it is necessary to check: whether the local Council would consider this as a “material change of use” and require this to be registered; and the existence of relevant bye laws or restrictive covenants. Nevertheless, according to the Independent article, the practice is “more common than thought in most populated areas of the UK”. In the reported case, in view of the estimated £100,000 costs of necessary extensive repair work, it is suggested that the 1875 property would be sold to a developer. However, regardless of the purchaser, some clarification of the reports in the media is clearly necessary.

Comment

The presence of human remains within the curtilage of any property raises two questions in relation to its sale: if they are to remain in situ what access, if any, are relatives to be permitted to visit the burial; and if the remains are to be exhumed, which parties should be consulted and where should their final resting place be. The absence of direct relatives such as in relation to the Teddington property adds a further dimension.

Access Issues relating to access would normally be addressed within the terms and conditions of the sale, and the absence of direct relatives should simplify this aspect. In Rudewicz, R (o.a.o.) v Secretary of State for Justice & Ors [2012] EWCA Civ 499, Stanley Burnton LJ acknowledged that the purchaser of the property in question was under no obligation to permit access for that purpose, and if such access were to be accorded at all, it would only be on a very restricted basis, i.e. once per year. Furthermore, it was noted that any such permission could be withdrawn at any time.

Exhumation This would require a licence issued by the Ministry of Justice under section 25 Burial Act 1857, for which there is a standard Application Form. Part A of the form requires a number of details concerning the deceased, and although it can be completed by anyone, it must be signed by the next of kin and those of equal kinship (i.e. if a child is the next of kin, then all the children would need to sign the form)[2]. In Rudewicz, the judge noted [para.10]

“the practice of the Secretary of State in relation to applications under section 25 has always been to regard the wishes of the deceased’s next of kin as very important”, [para.10].

There is no general definition of “next of kin” in English law although the Administration of Estates Act 1925 refers to the ‘statutory next of kin’ and lists a hierarchy of persons who will inherit the possessions of someone who dies intestate. This is included in Rule 22 of the Non-Contentious Probate Rules 1987, No. 2024 (L. 10) which gives the order of priority for grant in case of intestacy, although it is subject to section 116 of the Senior Courts Act 1981, (formerly known as the Supreme Court Act 1981).

Rudewicz was a special case, since

“when it comes to members of religious orders, the head of the relevant order is generally regarded as the next of kin. Such an approach is reinforced in the present case by the fact that the constitution of the Fathers (as laid down in 1930) does not entitle a member, even one as exceptional as the Priest, to have enforceable views as to where he should be buried”, [para.10],

and it was this factor, rather than the familial relationship between Ms Rudewicz and the deceased – first cousin once removed – that was considered to be critical in relation to this point.

The FAQs produced by the MoJ address the issue “What if I cannot obtain the consent I need?” and state:

“If the person whose consent you need is not immediately available, you should explain the circumstances in a covering letter. Without the consent, however, a decision on the application is likely to be delayed.

If you do not know the identity or the whereabouts of any person whose consent is necessary we would normally expect you to show that appropriate enquiries had been undertaken. This could be, for example, by advertising in a newspaper circulated within the appropriate area (e.g. the person’s last known whereabouts.”

From this it appears as though the onus of providing evidence of “appropriate enquiries” rests with the person seeking permission for exhumation, although no guidance is given of the extent of such enquiries needed to satisfy the MoJ. However, in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWCA (Admin) (15 August) the court noted [para.28] the statement of the Head of the Coroners, Burials, Cremation and Inquiries Policy Team at the MoJ that that the Secretary of State’s practice is only to “consult” relatives of identified remains in cases where that individual has been buried “recently” and, for these purposes, recently means “within the last 100 years”. Although not relevant in the present case, were an archaeological investigation in prospect, different information would be required as in the case of Richard III.

Human Rights The application of human rights legislation in the context of the deceased is uncertain. In Rudewicz, when assessing whether Article 8 was engaged Burnton LJ stated

“[i]t might have been different if there had been a close personal relationship, or even a close familial relationship, between Ms Rudewicz and the Priest, but they never met, and she is a distant relative. It is difficult to see how her family life or private life can fairly be said to be involved on the facts of this case”, [para. 39].

However, in his consideration of this statement, in Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor [2013] EWCA (Admin) (15 August), Haddon-Cave J stated:

“It is clear from European jurisprudence, however, that the views of a deceased person as to his funeral arrangements must now be taken into account (per Cranston J in R (Burrows) v HM Coroner for Preston [2008] EWHC 1387 (Admin)). For this reason, and in view of the unusual circumstances of this claim by traceable descendants of a famous Royal figure, [Richard III], it may be said that Article 8 has some role to play” [para 33].

Nevertheless, this is not an universally held view and in Ibuna & or v Arroyo & orsi [2012] EWHC 428 (Ch) Peter Smith J observed [para. 50]

“I confess that I have some difficulty in a post-mortem application of human rights in relation to a body as if it has some independent right to be heard which is in effect what Cranston J is saying [in Burrows]. I would respectfully disagree with his conclusion in paragraph 20 and 29 as set out above. It seems to me that the established law is correctly summarised by Hale J as she then was in Buchanan which gives the executor the primary duty to dispose of the body. In disposing of the body the executor is entitled to have regard to the expression made by the deceased but is not bound by them. Given that principle in my view there is no room further for any application of any human rights concepts to protect the right of the body to speak from death as it were.”

When the judicial review Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor is heard this year, it is hoped that there will be some clarification on this issue, and other aspects of the implementation of section 25[3]. With regard to consultation, the court has already acknowledged [para.28] that “Secretary of State’s practice is to “consult” relatives of an identified [person] in cases where that individual has been buried ‘recently’ ” – In the case of the four-bedroomed property in Teddington, the wife died in 2011 and her husband in 2013.

Wishes of the deceased In Ibuna, Peter Smith J reviewed the issue of possession of the body and stated [para. 44]

“A recent starting point is the decision of Hale J as she then was in Buchanan v Milton [1999] 2 FLR 844 at paragraph 845H as follows:-

There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 ChD 659; Rees v Hughes [1946] KB 517). An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 ChD 468, 472; Dobson v North Tyneside Health Authority and Another [1997] 1 FLR 598, 602, obiter) even before the grant of probate. Where there is no executor, that same duty falls upon the administrators of the estate …”

As noted above, Peter Smith J did not subscribed to the view that this position was altered by human rights provisions. Furthermore, most of the relevant case law associated with these various decisions focuses on the custody and possession of a body up to and including burial, but not thereafter.

Comment

In summary, the position would appear to be:

– unless a specific agreement is made, the purchaser will be under no obligation to permit the access of relatives and others to the grave;

– permission to exhume the bodies must be granted by the Ministry of Justice, and the wishes of the next of kin will be one factor it takes into consideration.

– whilst the wishes of the deceased should be taken into consideration, most authorities indicate that there in no obligation to follow them.

– further clarification may result from the judicial review Plantagenet Alliance Ltd, R (o a o) v Secretary of State for Justice & Anor.


[1] Environment Agency non-statutory guidance Funeral practices, spreading ashes and caring for the environment.

[2] There is no general definition of “next of kin” in English law although the Administration of Estates Act 1925 refers to the ‘statutory next of kin’ and lists a hierarchy of persons who will inherit the possessions of someone who dies intestate.

[3] In November 2013, the Church of England General Synod approved for Final Drafting and Final Approval the Draft Church of England (Miscellaneous Provisions) Measure, GS 1866B which will inter alia make changes to s 25 Burial Act 1857 only in so far as it affects the CofE, as we discussed here.

Cite this article as: David Pocklington, "Exhumation after home burial" in Law & Religion UK, 17 January 2014, https://lawandreligionuk.com/2014/01/17/exhumation-after-home-burial/

9 thoughts on “Exhumation after home burial

  1. What if any obligations would a purchaser of the property have in relation to the grave? Could s/he simply ignore it, remove all sign and record of it, and get on with designing a garden?

    • Interesting question, David, but property law isn’t really my area. Perhaps another reader better versed in these issues might indicate what restrictive covenants might be placed upon the sale?

      As you will have gathered from this and other posts, there is a degree of uncertainty in both the common law and the interpretation of statutory provisions in relation to what happens after burial. If the back garden of the Teddington property was formally registered as a “burial ground” through a “change of use”, the Disused Burial Grounds (Amendment) Act 1981 and other statutory provisions would have been relevant. Likewise, had the graves been in ground consecrated by the CofE, the issues raised in Re St. Peter in the East, Oxford would have been relevant. But again, they’re not.

      However, what comes across from both the secular and the ecclesiastical law are the limitations on constructing a “building” in a disused churchyard or burial ground.

      • Property law isn’t my speciality either: but though a purchaser could certainly remove all signs of a burial and get on with designing the garden, what he or she could certainly not do is to disturb the human remains in the process.

        As David points out, in order to exhume human remains you have to obtain a licence from the MoJ (or a faculty from the diocesan chancellor if the burial is in consecrated ground and the remains are to be reinterred in the same churchyard). So if a purchaser wanted (eg) to build a rockery over the graves then I don’t see how that would engage the requirement for a licence. If, on the other hand, he or she wanted to replace the existing “floral display” under which the previous owners are currently buried with a pond, then it very well might.

  2. Dear David,

    Some quick thoughts on your article ‘Exhumation after home burial’.
    I’m reasonably sure I have already outlined my understanding on exhumation law, i.e. why S.25 Burial Act 1857 and “any place of burial” cannot mean “any place” which is not regulated by what remains of the set of Burial Acts. It is not possible to cherry pick when deciding which laws do and do not apply and it cannot be legitimate for the MoJ to defy relevant case law.

    The Rudewicz and Richard III cases do not involve a direct question, as to whether or not exhumation licences can be issued for private land, such as private schools, car parks and back gardens. The Alice Barker Trust applied for permission to raise this question in the case of Richard III but as mentioned in my letter on the Leicester Mercury website, permission was refused. That same letter refers to the need for a court rule on what to do, when any judgment “could or would” encourage criminality.
    It is all too common to find completely false information, about having to record burials in property deeds and records held by HM Land Registry and Local Charges Registers. The true position has long been clear. All burials in England & Wales, must be recorded in permanently protected land burial registers. That applies to gardens and anywhere else. Damage to or destruction of any burial register carries a maximum penalty of life imprisonment. By contrast, property deeds can be destroyed without penalties.

    The property deeds could be used to create a restrictive covenant, to prevent an exhumation, if and when any exhumation law may come into being on private land, i.e. ignoring Compulsory Purchase Orders and so on. However, restrictive covenants might be ignored. It would be better for someone other than the landowner to own the “burial rights” in the grave and in the document which sets out those rights, to also state that access rights exist and ownership of any grave markers, which may have been sunk out of sight. That would give someone other than the landowner the right to decide whether the grave or graves must remain protected. It is highly unlikely that long term security of any grave, could be adequately dealt with in a one-off contract of sale.
    You may have noticed, that one press report regarding Teddington, refers to obtaining permission from the next of kin and another states that there are none. Whatever the true position, ownership of the burial rights seems the better answer.

    You state that, “certain environmental criteria must be satisfied prior to home burial” but there is no question of “must”, as there are none in law. I worked with the Environment Agency on national guidelines for its staff. It accepted that no burials have ever caused environment concerns. You may have noticed that there were no issues after the mass burials of farm animals, following the outbreak of Foot & Mouth Disease. The Royal Society had advised that burials of farm animals could be increased. Distances from standing water and so on which are used by the Environment Agency, were ‘borrowed’ from advice given on oil storage tanks, which have very different environmental implications. The Environment Agency even advised a Dover newspaper that graves give off very dangerous pathogenic gases. That was a nonsensical idea in the mid 19th century and even now, myths are often more powerful than sound facts. Be wary of pseudoscience and never incorporate it into guidance or law!

    There may still be no legal precedents on burials and “material change of use” under planning law. I am only aware that in decisions taken on Certificates of Lawfulness, the Planning Inspectorate has never accepted that planning permissions have been necessary. Certificates of Lawfulness can be obtained before or after burials but they are really pointless. Planners have no powers to force exhumations.
    There is nothing in law which allows the MoJ to give permission for exhumations from private land. The mention of 100 years does not appear in any law on this specific point. Any arbitrary number of years has no force in law. It is often overlooked that exhumation licences are not permissions as such, even for public cemeteries. An exhumation licence is no more of a permission to exhume, than a driving licence is a permission to drive someone’s car without their permission, car tax and insurance. In other words, any valid exhumation licence requires at least the permission of the owner of the burial rights. If validly issued, a licence only means that a prosecution cannot then take place under S.25 Burial Act 1857. That is clear from a careful reading of S.25. An exhumation licence is not a permission to exhume, remove gravestones, burial or access rights. Put another way, the MoJ has no obvious power to force exhumations, with licences or anything else.

    In reply to a number of Parliamentary Questions raised by the MP of Teresa Evans, the MoJ stated that it will only rarely issue a licence if the owner of the burial rights objects. The MoJ has yet to justify that answer, e.g. I have no knowledge of any court case which gives the MoJ power to override any ownership rights, even in exceptional circumstances. Were that not so, all burial rights would in effect be in the ownership of the MoJ..

    I’ve not read the opinion of Peter Smith J.. Does he explain why European judgments (such as Dödsbo-v-Sweden 2006) might not apply? Presumably he is not arguing that European law does not override national common and statute law? The duty of an executor or next of kin to “dispose” of a body and duty to bury, are both misleading and wrong in terms of English grammar. Indeed the notions are more suited to Alice In Wonderland. If the wording of the assumed offence were to be clarified, it would be that bodies must not be abandoned or neglected. Bodies can be preserved and the easiest example to find is that carried out by the late Robert Lenkievicz (see The Times article online for 12 Nov 2002). If there was a duty to bury, then cremation and sea burial would be unlawful. Indeed, common and statute law make clear that a body can be “disposed” of by any means. That was not picked up by the Court of Appeal judges in the successful funeral pyre case. Note by the way, that the decision issued 17 Feb 2010 set aside the whole of the judgement of the judicial review, so that has no legal standing.

    John Bradfield.

    • 5. Dear John
      Thank you for your comments on the issues concerning burial and exhumation. With regard to some of the points you raise:

      The meaning of “any place of burial”:

      In an earlier post we commented that there is a degree of uncertainty regarding the scope of “any place of burial”, and whether this applies as a default position to any land which is not consecrated by the Church of England, or covered by another statutory provision. As changes to the 1857 Act seem unlikely, further judicial consideration is required for this to be resolved.
      The Ministry of Justice experienced problems when in 2007 it re-interpreted “any place of burial” in accordance with Foster v Dodd (1867) L.R. 3 Q.B. 67, and soon reversed its decision in view of potential common law action against archaeologists exhuming remains without the statutory protection given by a licence issued under the 1857 Act.

      Environmental Issues:

      Although the quasi-legislative document issued by the Environment Agency, Funeral practices, spreading ashes and caring for the environment, does not have statutory authority, there has been some form of strict liability pollution offence based on “causing or knowingly permitting” pollution of controlled waters since the late 1800s. The Environment Agency advice “Assessing the Groundwater Pollution, Potential of Cemetery Developments” states “[t]he burial of corpses in cemeteries, and their subsequent degradation, may potentially cause pollution of groundwater. Local authorities have a responsibility for control of new cemeteries through the planning process. The Environment Agency … has new powers under the Groundwater Regulations 1998 to take action where groundwater pollution occurs, or is likely to occur.”

      Applicability of Dödsbo v Sweden 2006:

      Peter J Smith did not refer to Dödsbo v Sweden in Ibuna & or v Arroyo & ors. However, in Burrows v HM Coroner for Preston & Joan McManus, Cranston J states [at para. 19],

      “in Dödsbo v Sweden, ECHR 2006 No 5, all parties accepted that Article 8 was engaged by the refusal of the Swedish authorities under the Funeral Act to permit a wife to disinter the urn with her husband’s ashes so that it could be buried in the family burial plot in Stockholm. However, as in the earlier decision of the Commission the Court held that the interference could be justified under Article 8.2.”

      Article 8 is a qualified right, not an absolute right, and whilst it was engaged, the court deemed that interference with this right could be justified.

      • I am very interested in the input of Teresa Evans in the matter of the Legality of the ” Licence for the Removal of Human Remains” issued in respect of King Richard lll.

        After reading her input on your site I cannot understand why the lawyers acting on behalf of the Plantaganet Alliance have not fought for a decision on the illegality of the licence rather than the next of kin angle.

        Whilst a former member of the Richard lll Society, I have no connection whatsoever with anyone involved in the case. Having obtained copies of all documents etc relating to this matter I can understand Ms Evans’ contribution and would like to know if she is qualified in the legal profession in any way.

        Sincerely,

        D. Hennessy

        [posted on his behalf by Frank Cranmer: it arrived on the mobile site]

        • Thank you Derek

          Whilst I could not possibly second-guess the reasons for the approach taken by the lawyers acting on behalf of the Plantagenet Alliance, I think it is probably fair to say that many in the legal world are surprised that the judicial review has proceeded as far as it has to date, and this appears to provide a degree of justification in the course of action they have chosen to take.

          I’m afraid that I cannot assist in the matter of Ms Evans’ legal qualifications, but unless acting in a legal capacity on someone’s behalf, it is the legal soundness of her arguments rather than the ability to pursue them professionally that is of importance.

          David

  3. Pingback: Back-garden burials? | Law & Religion UK

  4. Dear David,

    Exhumation licences and “any place of burial”.

    I’ve just spotted that I didn’t respond to your reply dated 6th Feb 2014.

    You state that there, “is a degree of uncertainty regarding the scope of “any place of burial”, and whether this applies as a default position to any land which is not consecrated by the Church of England, or covered by another statutory provision”.

    With respect, legal precedents make the position very explicit and unambiguous.

    Those stipulate that common law applies and not statute law. It doesn’t matter what any statute says about anything, when legal precedent stipulates that the statute being cited, has no legal relevance.

    Thus, it can only make sense to discuss what “any place of burial” means, when dealing with properties where the Burial Acts definitely have application.

    The 1867 precedent has never been overturned because it has never been challenged. It is because of that precedent, that the Burial Acts have no relevance to former burials in private land. That judgment acknowledged that Burial Act licences have no relevance, with the statement that the graves were still protected by common law, from any disturbance.

    In another former burial ground, Jacobson was found guilty of exhuming without a Burial Act licence, before the 1867 precedent.

    He was prosecuted a second time in 1880, over further exhumations in the same place. However, just before that second prosecution, the Master of the Rolls said that the Burial Acts did not apply to Jacobson’s former Methodist burial ground, because of the 1867 precedent. Jacobson had complained to the MR about an Order in Council issued by Her Majesty. The MR agreed that she had “no authority” to issue that instruction because the Burial Acts did not apply to his land. The Order in Council was therefore declared legally invalid.

    It appears that the second prosecution for exhuming without a Burial Act licence, started a few weeks later.

    However, when the matter was looked into more carefully, the charges for exhuming without a licence, were immediately struck out because of, (a) the 1867 precedent as reinforced by (b) the judgment issued by the MR.. It was obvious that those charges could not be valid. However, they were immediately replaced with the only offence possible, i.e. the common law offence. The trial was moved to the Old Bailey and then to a higher court and presided over by the highest judge in the land, the Lord Chief Justice.

    I have never heard any judge, lawyer or academic argue that the panel of judges in 1867, the MR in 1879 or 1880 and Lord Chief Justice in 1880, failed to have a sound grasp of relevant law. That remains unchanged to this day, despite the failures to examine the whole truth and nothing but the whole truth, in the recent cases of Rudewicz and Richard III.

    The law has been crystal clear since 1867, which raises the question of why anyone would keep referring to uncertainty?

    It would not be unreasonable in the circumstances, to suspect that what law professor Paul Campos once said, may have some relevance:- “It’s difficult to get someone to understand something when their (career) depends on them not understanding it”.

    It looks as though there may be a hidden agenda to keep torturing the issue, when doing so makes no legal sense whatsoever. The only hidden agenda which appears to make sense, is to cover up the fact that many thousands of graves have been destroyed illegally, because of Burial Act licences, which should never have been unlawfully issued (ultra vires).

    One crucial legal question is why this clarity on law was withheld from the courts, not only in the Rudewicz case but also Richard III?

    In the former, it is plain to see that Lord Neuberger struggled to try and make sense of the 1880 precedent. He should have been presented with a crystal clear picture, because the picture is crystal clear..

    Why was he left to struggle and why was he not told what is outlined here?

    In the Richard III trial, former Secretary of State for Justice Chris Grayling was reminded in a preliminary court order, that he had a “duty of candour”. Had that duty been fulfilled, the courts would have been informed of the 1867 and 1880 precedents, how those came about and their continuing significance, in terms of when Burial Act licences cannot be lawfully issued.

    In the 1901 Kenyon trial, about criminal exhumations in a former Roman Catholic burial ground, Judge Phillimore said the Lord Chief Justice in the 1880 case, “was shocked, very greatly shocked” by what had been done. Judge Phillimore said, “memory of (the 1880 case) had apparently disappeared”. To make sure it would be remembered, he said the offenders “would be very largely punished”. They were then imprisoned.

    It is not that the 1880 case has been forgotten in the 21st century. The question is why it and the 1867 precedent keep being studiously avoided?

    At no time during the 1901 trial did anyone ask about any Burial Act licence or the meaning of “any place of burial”, ostensibly because the judge and lawyers knew the Burial Acts had no legal relevance.

    Will the issue of “any place of burial” ever be left to rest in peace or will it keep being exhumed, in order to keep avoiding the clarity which has existed since 1867?

    Will the whole truth ever be outlined to the courts?

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