In a consistory case that has received a good deal of media attention, Re St John’s Cemetery, Elswick [2018] ECC New 4, Moira McKenna, the daughter-in-law of the late Thomas McKenna, petitioned for his remains – interred in the consecrated section of St John’s cemetery, Elswick, Newcastle upon Tyne – to be temporarily disinterred for the purposes of obtaining a DNA analysis from bone fragments to be taken from the remains [1].

The petitioner contended that her husband, Eric McKenna, Thomas’s son, had been wrongly convicted in 2018 of two offences of rape – committed in 1983 and 1988 – for which he had been sentenced to a total of 23 years imprisonment [2]. The sentencing of Mr McKenna was widely reported in the media, prompting Mrs Eileen Hutton, his sister, to contact his legal team seeking to be put in touch with her brother and the petitioner – she having lost contact with her brother many years previously [3]. Mrs Hutton told Mrs McKenna that she did not believe that her brother had committed the rapes but that her father, Thomas Edward McKenna, who had died in 1993, might well have been the perpetrator. She alleged that he was a violent person, particularly towards women, and had served terms of imprisonment [4].

Eric McKenna had been convicted solely on the basis of DNA evidence and, with consents from Eric McKenna himself and Eileen Hutton, the only children of the deceased, and from the Newcastle City Council Bereavement Services Manager, Mrs Moira McKenna petitioned for the exhumation and re-interment of the remains of Thomas McKenna so that DNA tests could be carried out that might cast fresh light on whether or not he, rather than his son, had in fact been the rapist [5-7]:

“the entire case against Mr McKenna relied upon the DNA evidence against him. There were areas of the evidence upon which the defence relied as suggesting that someone other than Eric McKenna was the perpetrator” [7].

Duff Ch concluded:

“Having considered all of the material with which I have been provided I consider that the petitioner has made out a case for the temporary disinterment of the remains and sampling of bone fragments for DNA analysis. I hasten to say that the granting of this faculty should not in any way be taken as support for the contention that Eric McKenna has been wrongly convicted or that the deceased might be the perpetrator of the offences of which Eric McKenna has been convicted. However, I consider that if there is even a slight, but real, possibility that there has been a serious miscarriage of justice then it is wholly proper that everything be done to ensure that that is not the case. If, as may well be the case, ultimate DNA analysis establishes that the deceased could not possibly have been the perpetrator then that will put an end to any untoward allegation that he might have been guilty of the offences. I am entirely satisfied that these circumstances are sufficiently compelling to justify exhumation” [10].

He noted that it was an entirely different situation from those envisaged in Re Blagdon Cemetery [2002] Fam 299 – which was about exhumation and the presumption of the permanence of Christian burial – or the other authorities dealing with petitions for exhumation and permanent transfer of remains and that

“a clear methodology and proper arrangements [were] to be made involving Newcastle City Council Bereavement Services and Cellmark Services dealing with the extraction, retention and re-interment of such of the remains as require removal…” [11].

A faculty would issue accordingly, on the basis of directions as to payment of the appropriate costs and the details of the temporary exhumation and reinterment [12].