The Daily Telegraph reports that the identity of Jack the Ripper has been ‘solved’ in new book (to be serialized exclusively in the paper), and an application has been made for the body of the last of his “canonical five victims” to be exhumed. The book identifies the Ripper as Francis Spurzheim Craig, a 51-year-old reporter covering the police courts and inquests in the East End of London, and suggests that he murdered Mary Jane Kelly, an East End prostitute in an act of marital vengeance. The author of the book, Dr Wynne Weston-Davies, believes her to be his great aunt and is seeking approval for the exhumation of her body to permit a comparison of DNA samples taken from her bones or teeth with those taken from himself or his brother.

After giving “detailed consideration” to the new theory put forward by Dr Weston-Davies, the Ministry of Justice has indicated that it would be “happy to consider [his] application for an exhumation licence” subject to two criteria: provision of a letter from a forensics laboratory which is prepared to carry out the DNA testing; and the posting of a public notice on the grave for three months.

Comment

Mary Kelly was buried in a “public grave” in St. Patrick’s Roman Catholic Cemetery, Leytonstone on 19 November 1888: the headstone carries the inscription “Marie Jeanette Kelly, died November 9, 1888, aged 25 years” and the grave is number 66, row 66, plot 10. Although the proposed exhumation falls outwith the faculty jurisdiction of the Church of England, it is instructive to compare the approach that might have been adopted by the ecclesiastical courts with the considerations relevant to the grant of a “section 25 licence” under the Burial Act 1857. Ministry of Justice guidance indicates:

“[g]round consecrated by the Roman Catholic Church, the Church in Wales or any other religious denomination does not have the same legal effect as ground consecrated by the Church of England.”

Given the CofE’s “long-established presumption against exhumation and in favour of the permanence of Christian burial in consecrated ground[1]”, it seems highly unlikely that Mary Kelly’s exhumation would have been permitted for the purpose of taking a sample for DNA analysis to confirm the conclusions of independent research that would primarily benefit the petitioner.

Re St Mary, Sledmere [2007] York Const Ct, Collier Ch. demonstrates the criteria that ecclesiastical courts have applied in relation to exhumation in the course of research. In this case a faculty was granted since: the petition was presented as part of a piece of bona fide medical/scientific research; there were strong grounds for believing that the human remains … might provide sufficient tissue samples of a quality that will enable [the] team to carry out research that they have until now not been able to carry out for want of tissue samples of adequate quality; there was a real prospect that the research they wish to carry, whether by proving or negating the theories advanced by a world-renowned scientist.

With regard to the potential success of the examination of buried remains, Re Holy Trinity, Bosham [2003] Chichester Const Ct, Mark Hill Ch. considered a petition for the exhumation of those alleged to be King Harold II. The Chancellor stated, [32]:

“…there may well be a legitimate national historic interest in identifying the final resting place of the only English monarch since Edward the Confessor of whom this is unknown … Despite their laudable objective, I am far from satisfied that the petitioners’ proposal will advance their aim … the prospect of obtaining such evidence remains speculative; thus any DNA testing is futile and the margin of error in carbon dating testing can, at best, only produce an inconclusive result.”

However, some of these elements examined by the consistory courts are to be found the on the MoJ form requesting an exhumation, and in the requirements imposed by the MoJ in this case: the letter from a forensic laboratory serves the purpose of demonstrating the likelihood of undertaking a meaningful comparison between the DNA obtained from Mary Kelly and that from Dr Weston-Davies and is brother; and the material already considered by the MoJ presumably satisfies the requirement that there is a reasonable possibility of the DNA results proving or disproving Dr Weston-Davies’s theory. Since the interment was over 100 years ago, there is no requirement to comply with the provisions of the Human Tissue Act 2004.

Although the Telegraph article indicates that Dr Weston-Davies and his brother are probably Mary Kelly’s only living relatives, the 3-month public notification provides the opportunity for others with a possible interest to make objections to the MoJ. The critical questions on the exhumation application form is Q7 asking “[a] Are you the nearest surviving relative?”; and [b] Please indicate your relationship to the deceased”, and where this is identified as “other”, the Applicant must make the declaration in Q9. A further requirement is obtaining the consent of the grave owner.

The Roman Catholic Church and the Church of England have a similar position on the permanency of Christian burial, but the former (and similar views of other faith groups) are not addressed specifically on the MoJ form. However, there is a requirement for Applicant to provide details of any person (relative or otherwise) who may object to the proposal to remove the remains or is likely to do so, [Q 8]; and for the Burial Authority to declare that is has no objection to the grant of a licence and is not aware of an objection by any other person, [Q B7].

We shall await developments with interest.

Update – 13 February 2019

A  desk-­‐based  assessment  of  the  identity  and  burial   location  of  Mary  Jane Kelly  (d.  1888),  St  Patrick’s   Catholic  Cemetery,  Leytonstone was undertaken by the University of Leicester and reported in 2017. The summary concludes:

“Today,  Kelly’s  modern  grave  marker  likely  has  little  relevance  to  the  real  location  of  her  grave,  which   appears  to  have  been  unmarked  before  the  1980s,  and  the  present  marker  is  positioned  in  a  burial  system   that  has  only  been  in  use  since  the  1940s … As  information  presently  stands,  a  successful  search  would  require  a  Herculean  effort  that  would  likely  take  years  of  research,  would  be  prohibitively  costly  and  would  cause  unwarranted  disturbance  to  an  unknown   number  of  individuals  buried  in  a  cemetery  that  is  still  in  daily  use,  with  no  guarantee  of  success.  As  such,  it   is  extremely  unlikely  that  any  application  for  an  exhumation  licence  would  be  granted.”

[1] An extended form of the Note prepared for the Court of Arches by the Rt Rev Christopher Hill is published as: C Hill, “A Note on the theology of burial in relation to some contemporary questions”, (2004) 7 Ecc LJ 447.