Exhumation for DNA testing in a criminal case: Re St John’s Cemetery

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].

Cite this article as: Frank Cranmer, "Exhumation for DNA testing in a criminal case: Re St John’s Cemetery" in Law & Religion UK, 8 February 2019, https://lawandreligionuk.com/2019/02/08/exhumation-for-dna-testing-in-a-criminal-case-re-st-johns-cemetery/

2 thoughts on “Exhumation for DNA testing in a criminal case: Re St John’s Cemetery

  1. Frank, this case reminds me of another exhumation at All Saints’ Church, Shelley, Suffolk (a few miles from where I live) back in June 2005. The purpose on that occasion was to extract a piece of bone from a body buried under the chancel floor in the 17th century in order to subject it to DNA testing with a view to establishing whether a skeleton dug up in Jamestown, USA, was that of founding-father, Bartholomew Gosnold. The body buried in the church was that of his sister, Elizabeth Tilney. The exhumation was widely reported at the time:

    https://www.thetimes.co.uk/article/exhumation-plans-in-quest-for-us-founding-father-9j7l7jc2f2q and
    http://www.bbc.co.uk/suffolk/content/articles/2005/05/26/gosnold_exploration_begins_feature.shtml

    The report in The Times prompted the then editor of the Law Reports to telephone the diocesan registrar to ask for a copy of the judgment, only to be told that there wasn’t one! The then diocesan chancellor, Sir John Blofeld, had simply rubber-stamped the faculty petition, which had the full support of the PCC and no objectors. The Americans, of course, were paying all the costs. So whether satisfying their curiosity over the identity of the body unearthed in Jamestown satisfied the Blagdon test for exhumation was never the subject of a reasoned judgment. Sadly, after all the publicity at the time (BBC and ITV vans, with news teams, were parked outside the churchyard on the day of the exhumation), the DNA test was inconclusive.

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