Exhumation and Articles 8 & 9 ECHR again: Re Putney Vale Cemetery [2015]

Application of Articles 8 and 9 ECHR to exhumation from consecrated ground, and changes to procedure for exhumation

Background

Prior to considering the recent proceedings in Re Putney Vale Cemetery [2015] Southwark Cons Ct, Philip Petchey Ch, it is necessary to revisit the earlier proceedings, concerning some members of the same Vietnamese Buddhist family, in Re Putney Vale Cemetery [2014] Southwark Cons Ct, Philip Petchey Ch, on which we reported on 14 August 2014.

These earlier proceedings involved the following family members:

  • Mr Kiet Kham Hong: the Petitioner;
  • Thuan Kiet Hong: Brother of the Petitioner, who died in an accident in 1991, and whose cremated remains were not interred at that time;
  • Thuc-Bich Tran: the Petitioner’s Grandmother, who died in 1993 and whose body was buried in the consecrated part of Putney Vale Cemetery;
  • Vinh Hong: Father of the Petitioner, who died on 28 June 2014. His body was buried 16 July 2014, in a coffin, also containing the ashes of Thuan Kiet Hong, in the plot where Thuc-Bich Tran had been interred.

Although Vietnamese Buddhist monks had made the arrangements for the funeral of his father and the interment of his brother’s ashes, his family subsequently informed him that according to Chinese Buddhist tradition, those arrangements were inappropriate: they adversely affected the spirits of the deceased and, if not rectified, would bring misfortune (“bad karma”), as burial in consecrated ground was considered inappropriate. The Buddhist monks advising the Petitioner informed the Chancellor that they would not know until after the exhumation of all the remains whether it was more propitious for Thuc-Bich Tran’s remains to be reinterred in her existing grave or in a new grave.

The Petitioner applied for three faculties to permit the exhumation of the remains of his brother, his grandmother, and his father from the consecrated area of Putney Vale Cemetery and for their reinterment in the unconsecrated part of the cemetery. In more detail, what was required to rectify the situation according to Chinese Buddhist tradition was:

  • for Vinh Hong’s remains to be exhumed, cremated and reinterred;
  • for Thuan Kiet Hong’s ashes to be exhumed and reinterred; and
  • for the remains of Thuc-Bich Tran to be exhumed, placed in a new container and then re-interred in the same grave.

In granting the petition, the Chancellor stated that his discretion to permit exhumation properly extended to circumstances of this kind, albeit where the mistake relied upon was of an unusual sort, and in granting the petitions commented:

“[t]he faith of Church of England is very different to the Buddhist faith and its views about the appropriate treatment of the remains of those who have died evidently diverge but the views of Mr Khiet Kham Hong and his family are genuinely held and are appropriately treated with respect.”

In relation to the remains of Vinh Hong and Thuan Kiet Hong, the Chancellor noted that, in addition, a Ministry of Justice “section 25 licence” would be required for exhumation. The faculty also permitted the exhumation of the remains of Thuc-Bich Tran. Within 6 months of the date of the faculty (or such extended period as might by order be permitted), the court required that her remains were to be reinterred either in the existing grave, for which a Ministry of Justice licence would be required, or a new grave within Putney Vale Cemetery[, but see Comments, below].

Proceedings in 2015

These later proceedings involved the following family members:

  • Mr Dong Hong: the Petitioner, uncle of Kiet Kham Hong, the 2014 petitioner Kiet Kham Hong;
  • Tich Trinh Hong: whose exhumation was being sought; he was the husband of Thuc-Bich Tran, Kiet Kham Hong’s grandmother, whose remains inter alia were the subject of the earlier petition.

This petition, dated 15 October 2014, sought permission for the exhumation of the remains of Tich Trinh Hong from Plot 162 (Block 8) in Putney Vale Cemetery to enable their reinterment within Plot 279 (Block 13) in that Cemetery, both plots being within consecrated sections of the cemetery. The Chancellor noted [3]:

“At the time last year that I granted the three petitions of Kiet Kham Hong, I was unaware that Tich Trinh Hong’s remains had also been interred in a consecrated plot in Putney Vale Cemetery. In the context of the present petition I have been assured that there are no other family members whose remains are interred in Putney Vale Cemetery.

All Mr Hong’s family support the present petition”.

The reasons for the recent petition were different from the reasons for the petition which was granted last year. Mr Dong Hong explained:

“[a]ccording to our Vietnamese tradition and culture, the eldest son of the family [i.e. Mr Dong Hong] will have to carry out the exhumation of the deceased father’s body 10 years after it was first buried, and then to re-bury it. This is to show respect to the deceased father, all the deceased’s close relatives of the family and the ancestor. The surviving family, the children and grandchildren of the deceased will receive blessing from the ancestor bringing them good health and luck from generations to the next generation … I have bought a grave space in Putney Vale Cemetery [in the consecrated part] to rebury him next to my deceased mother [Thuc-Bich Tran] and this will be the greatest respect that I can show to my deceased parents and ancestor..”, [4].

Noting that that was “obviously very different from the Christian tradition of burial as practised in this country”, the Chancellor was satisfied that exhumation after 10 years was a part of Vietnamese tradition, as indicated in a letter from a priest at the Linh Son Temple at Upper Norwood, and that the petition was brought in good faith and reflected the Petitioner’s beliefs and those of his family, [5].

Accepting that the issue had not been addressed earlier because of a genuine mistake by the family, the Chancellor noted that this was not necessarily a sufficient basis for the proposed exhumation; however, there was the further aspect that if the family are unable to exhume the remains, they will be unable to observe a religious practice which in good faith they wish to observe, [10]. He therefore considered the potential engagement of Articles 8 and 9 of the European Convention on Human Rights, for which the Convention is given the force of law in England by the Human Rights Act 1998.

With regard to Article 8 ECHR, Chancellor noted, [14]:

“In In re Blagdon Cemetery, the Court of Arches considered that Article 8 was not engaged in an exhumation case. Since In re Blagdon Cemetery [2002] Fam 299, was decided, in Dodsbo v Sweden, [2007] 45 EHRR 22, the European Court of Human Rights considered the lawfulness of a decision under Swedish law to refuse permission for exhumation engaged Article 8 (although the Government of Sweden had conceded this).

In In re St Andrew’s Church, Alwalton [2012] PTSR 479 Jones Dep Ch considered Article 8 was engaged in an exhumation case.

In the Scottish case C v Advocate General of Scotland [2012] WLT 103 the Court of Session held that an act which resulted in a person’s body being interred in a place not of his widow’s choosing engaged her Article 8 rights.”

He therefore considered that in his opinion, “in cases of this kind, Article 8 rights are engaged, and that the Court of Arches, if it had to consider the matter again would hold that they were.

With regard to 9 ECHR, he said, [15]:

“In Re Durrington Cemetery [2001] Fam 33 it was held that Article 9 was engaged where the petition was for the exhumation of a Jew who had been buried in consecrated ground and made by his Jewish relatives to achieve his reburial in a Jewish burial ground.

In In re Crawley Green Cemetery [2001] Fam 308 Article 9 was held to be engaged where a humanist had been buried in consecrated ground.

In In re Blagdon Cemetery, the Court of Arches evidently would have preferred to categorise these as cases of mistake’ but did not say that those cases were wrong.

More generally, he noted [17] that:

“ … consideration of petitions for exhumation with reference to the European Convention is potentially circular: if the Chancellor is minded to refuse permission because he has not identified exceptional circumstances he will have the basis for saying that such a decision is justified on the basis of the limitations contained in Articles 8 (2) and 9 (2). Further, a Chancellor might say in any particular case that he would have given permission irrespective of whether the petitioner was able to rely on Articles 8 and 9,”

and in the present case, [18]:

“ … Tich Trinh Hong was voluntarily buried in the consecrated part of Putney Vale Cemetery and it has proved to be a satisfactory resting place for over 30 years. If refusing to permit exhumation did not impact upon the expression of the family’s religious beliefs, the case would not be a strong one. What Article 9 … does is to emphasise that the “norm” is non-interference with the manifestation of religious belief. Even though the general justification for exhumation may be weak, it seems to me that there must be a clear justification for interfering with this particular manifestation of religious belief.”

On this reasoning, the faculty was granted [19], for

“… unless permission for the exhumation of Tich Trinh Hong’s remains be permitted, Mr Hong and his family will be unable to manifest their religious beliefs. Although the right to manifest such beliefs is not an unfettered one, I do not think the general arguments which otherwise strongly support the maintenance of the principle of the permanence of Christian burial in consecrated ground should prevail to prevent that manifestation.”

One unsatisfactory aspect of this outcome was that re-interment was to be in consecrated ground, presumably since the burial plot had already been purchased next to the Petitioner’s deceased mother, [4]. The faculty in Re Putney Vale Cemetery [2014] had been specific in that the remains of Vinh Hong and Thuan Kiet Hong were to be re-interred in unconsecrated Garden of Remembrance. Nevertheless, the Chancellor’s 2015 judgment concluded “whether it be consecrated or not is now a matter of indifference to Mr Hong and his family, there being no foreseeable possibility of the further exhumation of Tich Trinh Hong’s remains.”

Comment

If nothing else, this judgment and those it refers to are a reminder that exhumation from ground consecrated to the use of the Church of England engages the faculty jurisdiction, whatever the faith of the person interred. However, where Articles 8 and 9 ECHR, particularly the latter, are engaged, it is necessary for the consistory courts to take into account the manifestation of other religious beliefs.

In addition to the development of case law subsequent to Re Blagdon Cemetery, it should also be noted that in the period between the two judgments the legal position changed. In late 2014 the Ministry of Justice issued a circular, Change to the granting of exhumation licences from 1 January 2015 which begins as follows:

Background

1. On 1 January 2015, section 25 of the Burial Act 1857 will be amended to simplify exhumation procedures in a small number of cases involving consecrated ground. This document explains how the change will affect applications to the Ministry of Justice for a licence (whether the burials are recent or of archaeological interest).

Current system

2. The Secretary of State for Justice grants licences to exhume human remains in accordance with section 25 of the Burial Act 1857 (as amended). Currently, the law requires a licence from the Secretary of State unless “a body is removed from one consecrated place of burial to another by faculty” granted by the Church of England authorities.

3. The Church of England has to authorise exhumations from consecrated ground and other ground under its jurisdiction. Therefore, due to the wording of the Act, there are certain circumstances where both a licence and the Church’s authorisation may be required, for example, when a body is removed from consecrated ground and then reburied in the same place or in unconsecrated ground.

New system

4. From 1 January 2015, the procedure will be simplified. Section 25 of the Burial Act 1857 will be amended by the Church of England (Miscellaneous Provisions) Measure 2014.

5. From this date, you will only need approval from either the Secretary of State or the Church of England, depending on the current location of the remains. This change will eliminate the small number of cases where approval was needed from both. Exhumations from land which is subject to the Church of England’s jurisdiction will need the Church’s authorisation (a faculty or the approval of a proposal under the Care of Cathedrals Measure 2011). This includes consecrated ground in cemeteries. Exhumations from land which is not subject to the Church of England’s jurisdiction will need a licence from the Secretary of State.” [emphasis added]

So an MoJ licence was necessary in the earlier case but not in the later one.

David Pocklington and Frank Cranmer

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Cite this post as: David Pocklington and Frank Cranmer: “Exhumation and Articles 8 & 9 ECHR again: Re Putney Vale Cemetery [2015]” in Law & Religion UK, 3 November 2015, https://www.lawandreligionuk.com/2015/11/03/exhumation-and-articles-8-9-echr-again-re-putney-vale-cemetery-2015/.

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