Despite impression given in media, Chancellor preferred experts’ opinion to fanciful speculation
Encouraged by the kudos and other benefits resulting from the identification of the remains of Richard III in Leicester, a number of groups have been attempting to replicate this success by seeking out other “high profile” burials, previously thought to be lost. As we have noted earlier, however, whereas archaeological interest has consistently been considered a “good and proper reason” to grant a licence for exhumation, it is much less likely to form the grounds of a successful petition for a faculty, as in Re St Nicholas, Sevenoaks  1 WLR 1011 and Re Holy Trinity, Bosham  Fam 125.
Next year marks the 400th anniversary of the death of William Shakespeare and a television production company, Arrow Media, is planning to produce a 60-90 minute film following the research by the University of Staffordshire, investigating what can be learnt about the death and burial of Shakespeare using new technology and science. An important component of the programme was to have been an examination of a skull currently located in the vault beneath the Sheldon Chapel of St Leonard’s Church, Beoley.
Two pamphlets attributed to a former vicar of St Leonard’s suggest that the this could be that of William Shakespeare, stolen from Holy Trinity, Stratford upon Avon, at the time of the Shakespeare Jubilee in 1769; in response to an unfulfilled offer by Horace Walpole of £300 for securing the skull; when the money was not forthcoming, instead of replacing the skull in Holy Trinity, it was allegedly hidden in the vault at Beoley.
“[a] the temporary removal from the vault beneath the Sheldon Chapel of a skull, possibly that of William Shakespeare, to enable [the carrying out of] a detailed archaeological investigation to include: [i] laser scanning; [ii] radio carbon dating; and [iii] an anthropological assessment;
[b] the subsequent return of the skull to its [present] resting place.”
Although the petition was made by the Team Vicar responsible for St Leonard’s Church and the two churchwardens, significantly “the impetus for this proposal comes from Arrow Media, an independent film company. Arrow Media and the University of Staffordshire will be funding the proposed works and investigations, under the terms of a draft agreement between them and the petitioners”, . Three options were suggested, [36-37]:
- Option 1, the preferred research strategy, centred on the removal of the skull to the laboratories for assessment and scanning;
- Option 2, which allows for investigative work to be carried out within the vault, but not for the removal of the skull elsewhere; and
- Option 3, a contingency method using micro-surveying technology that could be developed if access to the vault were not to be permitted.
Since access to the vault is a component of the Quinquennial Inspection, the Chancellor believed there was little point in prohibiting access on principle, and restricted his considerations to Options 1 & 2.
Jurisdiction of the court
A preliminary question was raised as to whether the faculty jurisdiction is engaged at all, since the skull had previously been removed from its present resting place in the vault and photographed, . Accepting that the skull had not been “buried” in the conventional sense, the Chancellor noted that although it had been informally removed on previous occasions, this of itself did not justify a further removal – albeit on a temporary basis – from the church to a location elsewhere without authorisation and certainly did not justify the removal of a small bone fragment from the skull, .
Furthermore, “even if the deposit of the skull were not considered to be analogous to the burial of a full body, so as to bring into play the requirement for a faculty to be obtained for its temporary removal, the faculty jurisdiction also operates to protect at least some objects, including ornaments and furniture, associated with a church (sometimes referred to as “treasures” where they are of particular value) deposited in a church – unlike the system of listed building control applying to secular buildings” . The Chancellor was therefore satisfied that the petition fell within the jurisdiction of the court.
The Diocesan Advisory Committee, (DAC), had recommended the proposal without any provisos, and no objections were received following public notice under Part 5 Faculty Jurisdiction Rules 2013 . The Chancellor had directed that a request be sent to the Church Buildings Council, (CBC), for its advice, and in particular for its views as to the credibility of the reasons put forward for the investigation; he noted “[t]his procedure, under rule 8.7 of the 2013 Rules, provides a valuable means whereby a chancellor can obtain an independent and authoritative view on a proposal that is unopposed but which may nevertheless be of more than merely local importance.”
Exceptionally, he was unconvinced by the proposal as originally put forward, especially in the light of the decision in St Nicholas, Sevenoaks, below. In particular he was unconvinced as to the credibility of the reasons adduced to justify the proposed investigation and was concerned as to the effect that granting a faculty in this case might have on other proposals for high-profile archaeological explorations, in the Worcester diocese and elsewhere. The Chancellor therefore directed that he was not willing to grant a faculty without first holding an oral hearing at which these matters could be more fully explored; and at which more detailed evidence could be presented from the DAC archaeological adviser, as well as from the petitioners and those proposing to carry out the investigation.
Law and good practice
In his review, [13 to 19], the Chancellor noted the similarities with Court of Arches, in Re St Nicholas, Sevenoaks, the judgment of which stated, [emphasis added]:
“13. Both in the Blagdon judgment and in the Alsager judgment, [Re Alsager, Christ Church  Fam 142], Chancery Court of York], the appellate court was considering an application to exhume the remains of a specific person rather than the removal of a number of remains, possibly of unknown persons. However, the basic principle is the same, namely that it is only when special circumstances have been proved to the satisfaction of the court that a faculty will be granted permitting exhumation of one or more sets of remains.” 
15. … we consider that a crucial point, which needs to be emphasised at the outset, is that the test of special circumstances for exhumation is not the scale of what is proposed but the credibility of the reasons put forward for the exhumation. It is an evaluation of the evidence, which the chancellor has to carry out in determining whether special circumstances have been established. There is no question of it being permissible for that evaluation to be any less rigorous, because the proposed interference will be small … To succeed each needs to be based upon a sound factual base providing a convincing reason or reasons for the exhumation proposed,”
and with regard to DNA testing,
30. … The reasons may be many and varied but the common element, if an application is to succeed, is the proof of a good reason for the exhumation in order to carry out a DNA test. There can be no proper authorisation on the basis of a whim or idle curiosity.
32. An example of the correct approach to assessment of evidence in a case involving the proposed use of modern scientific techniques is to be found in the full and clear judgment of Hill Ch. in Bosham Holy Trinity … In that case the petitioners sought a faculty to open a coffin under the floor of the church with a view to taking a sample of bone in order to ascertain whether the remains were those of King Harold. The chancellor … [concluded] that the proposal was doomed to failure for several reasons. He said:
“it is a matter of conjecture whether any human remains will be found in the coffin; such remains as may be found are highly unlikely to be those of King Harold since the vast preponderance of academic opinion points to his having been buried at Waltham Abbey.”
He went on to point to the weaknesses in relation to the prospect of recovering material for DNA testing and the lack of any comparator.
The CBC/English Heritage’s Guidance for Best Practice on the Treatment of Human Remains Excavated from Burial Grounds in England was drawn to the court’s attention by CBC, particularly paragraph 190 in Annex E6, The Ethics of Destructive Sampling of Human Remains, which suggests that consideration should centre on whether the investigation proposed in this case is taking place within a planned research programme, and whether it has a realistic prospect of producing useful knowledge.
The court examined evidence relating to the skull, which was described as “…small. It seemed to be more for a teenager or possibly a woman”, according to former churchwarden Mr Richardson who had removed and photographed it, ; and the two articles published in Argosy magazine. Written by an author under the nom-de-plume “A Warwickshire Man”, How Shakespeare’s Skull was Stolen and How Shakespeare’s Skull was Found were published in 1879 and 1884, and also as a pamphlet in 1884, [21 to 24]. The significance of the story was assessed by various experts: the Shakespearean scholar, Professor Stanley Wells, CBE, directed the court to a number of assessments of the story, [27 to 31], and concluded that it was “a piece of Gothic fiction in the manner of Horace Walpole” – although he would not discount the possibility that there were grains of truth in it.
With regard to Shakespeare’s tomb in Stratford upon Avon, the lead archaeologist of the Beoley project [who was also involved in the Stratford work] accepted that there was very little evidence to suggest that there had been any disturbance of the tomb, other than contained in Langston’s account; and noted that the Vicar and churchwardens at Holy Trinity Church were not interested in the skull at Beoley, considering the story as to its identity to be without foundation, . In parallel to the proposal to investigate the skull at Beoley, faculty was granted for the undertaking an investigation of Shakespeare’s tomb, and a preliminary report was published in March 2015. The Chancellor stated, ,
“For present purposes, it is sufficient to note that, whilst there is some evidence that may suggest that there has been post-burial activity and disturbance in the vicinity of the traditional burial place at Stratford, there seems to be no suggestion of any evidence indicating an incomplete skeleton, or anything of that nature. In particular, the … report contains as an appendix a report written in November 2013 by Dr Robert Bearman, the retired Head of Archives and Local Studies at the Birthplace Trust, looking at various stories associated with the ledger stones in Holy Trinity Church. In his conclusion, Bearman refers to the story by “A Warwickshire Man”
“The story, though made superficially credible through the clever use of circumstantial details, can in none of its essentials be confirmed and is now generally regarded as witty satire.”
After considering the proposed investigations at Beoley and television programme, [35 to 43], the views of the parish, DAC and CBC were considered, [44 to 51]. The parish had not given a great deal of thought on what would happen if the skull were found to be Shakespeare’s – or indeed if that idea was disproved; although not formally objecting to the petition, the CBC considered that the evidence provided did not provide a justification for the disturbance of the disarticulated human remains in the burial vault and advised against the proposed temporary removal and investigation of the skull unless more convincing evidence is produced which would suggest that the project has a realistic chance of success.
In rejecting the petition, the Chancellor agreed with the various experts that the story by “A Warwickshire Man”:” reads like a piece of Gothic fiction”; was described as “lurid fiction”; and categorized as “witty satire”. An alternative argument proposed in Simon Andrew Stirling’s book entitled Who Killed Shakespeare? was “arguably even more fanciful”, [however, see Simon’s comments, below]. He concluded:
“ … There is no indication of any corresponding evidence from Stratford in support of the truth of the story – indeed quite the reverse. Mr Richardson [the former churchwarden] seemed to be at least willing to suspend disbelief sufficiently to justify the investigation; but Mr Irving [vicar of St Leonard] and Mr Clark [Team Rector], in my view correctly, summarised the evidence as to the skull being that of Shakespeare as being “highly tenuous”.
53. I have seen no scholarly or other evidence that comes anywhere near providing any support for the truth of the story. I have already noted that Professor Wells concluded that that one could not discount the possibility that there is a grain of truth in it; but that is perhaps the lowest possible standard of proof, just above something being classified as complete fabrication.
54. It follows that the skull in the crypt at Beoley is simply that – a disarticulated human skull, of wholly unknown age and gender. There is no evidence as to when, how or why it ended up in the vault beneath the Sheldon chapel. And there is in particular nothing whatsoever to link it to William Shakespeare.
55. It follows from the above conclusion that the curiosity as to the skull at Beoley has no factual base whatsoever to justify exhumation, removal or investigation. The whole enterprise is entirely speculative. As in the Bosham case, the evidence led by the petitioners fails to come near to the standard required; and the proposed research has no realistic prospect of producing useful knowledge.
The Chancellor ordered that court costs, including the correspondence fees of the registrar, were to be paid by the Petitioners, on the assumption that these would be met on its behalf by Staffordshire University and Arrow Media in accordance with clause 21 of the draft agreement between them and the Petitioners.