Consistory court considerations on the identification of buried remains
The permanence of Christian burial and the application of Re Blagdon Cemetery  Fam 299 has been a continuing theme on L&RUK, and has also been explored in Leading Works on Law and Religion. This is the first of three posts in which we consider exhumation for the purpose of examining the remains of monarchs, mass murderers, and for medical research. Most recently, in Re St. John’s Cemetery Elswick  ECC New 4, the court granted a faculty for a temporary disinterment for the purposes of obtaining a DNA analysis from bone fragments to be taken from the remains, in relation to a criminal conviction of the petitioner’s husband.
In this first Part we consider the identification of the remains for historical and other purposes and Part II will consider their use in the proof of ancestry and in forensic investigations. Part III looks at medical research, and attempts to draw some conclusions on the application of the law in this area.
The first patent covering the modern process of DNA profiling was not taken out until 1983, and consequently its application in relation to exhumation is a relatively recent development. Needless to say, the technique was not addressed in Re Blagdon Cemetery, although subsequently it has been considered in a number of judgments, along with other developments such as carbon dating.
The first occasion in which a consistory court was invited to permit the exhumation of human remains so that a sample for DNA analysis might be removed and destroyed was said to be Re Holy Trinity Bosham,  Chichester Const Ct, Hill Ch . Exhumation had been sought for the identification of the interment in a number of earlier cases, summarized below, but prior to the development of DNA analysis these were reliant on a physical examination of the interred remains and were of limited relevance to subsequent cases.
DNA analysis has been sought in a number of subsequent consistory court (and other) cases in order to resolve a range of disparate issues, including the examples listed below; however, the basic criteria for these considerations were identified in Re Holy Trinity Bosham. Its starting point was paragraph 33 of the Court of Arches judgment in Re Blagdon Cemetery:
“[w]e have concluded that there is much to be said for reverting to the straightforward principle that a faculty for exhumation will only be exceptionally granted’
The general test has been variously articulated, such as by Chancellor Quentin Edwards QC, as ‘”good reason” and “special and exceptional grounds”. The Court of Arches in Re Blagdon Cemetery continued at paragraph 35: “The variety of wording which has been used in judgments demonstrates the difficulty in identifying appropriate wording for a general test in what is essentially a matter of discretion”. With regard to applying the law in the instant case, the Worshipful Mark Hill QC said [emphasis added]: “…in order to displace the doctrinal principle that human remains are not to be disturbed a cogent and compelling case must be proved for the legitimacy of any research” . In addition to the general norm of the permanence of Christian burial and the presumption against exhumation, comprising any disturbance of human remains which have been interred, he said:
“. … (iv) Departure from such presumption can only be justified if special circumstances can be shown for making an exception to the norm; (v) An applicant might be able to demonstrate a matter of great national, historic or other importance concerning human remains; (vi) An applicant might also be able to demonstrate the value of some particular research or scientific experimentation; (vii) Only if the combined effect of evidence under (v) and (vi) proves a cogent and compelling case for the legitimacy of the proposed research will special circumstances be made out such as to justify a departure from the presumption against exhumation”.
Use of DNA and other evidence by the courts
Identification of remains
King Harold II: In Re Holy Trinity Bosham the incumbent and churchwardens sought a faculty to authorize: “Archaeological investigation of two grave sites in the nave, to be followed by complete restitution of the area”. This would involve inter alia the use of “the comparatively new technologies of carbon dating and DNA testing” on such human remains as may be found and exhumed from the grave(s) with a view to determining whether the remains were those reputed to be Harold Godwinson (King Harold II, c.1022-1066).
The Chancellor was satisfied that “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”; however, despite the laudable objective of the petitioners, he was far from satisfied that their proposal would advance their aim, on which he was convinced that it was “doomed to failure”:
“. … 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 Harold since the vast preponderance of academic opinion points to him having been buried at Waltham Abbey; the prospect of recovering Y-chromosome material from such bone as may be found is as little as 10%-30%; there is currently no evidence of putative descendants of Harold sharing a recent common male-line ancestor through Y-chromosome evidence; 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”.
The petition was dismissed and the costs of the petition, including those of the acting archdeacon, was to be borne by the petitioners.
Richard III Perhaps the most widely-reported example of the identification of unknown remains is that relating to those of Richard III which were discovered in a Leicester car park; we have covered the legal developments associated with the exhumation and identification of the remains. These fell within the jurisdiction of the Ministry of Justice rather than the consistory courts, and therefore the exhumation of the remains required a sections 25 licence issued by the MoJ under Burial Act 1857 rather than a faculty from the Leicester consistory court. Furthermore, the MoJ decision was the subject of judicial review. It should also be noted that under the secular planning system, there is no general presumption against the disturbance of human burials than against other classes of archaeological remains.
The web site of the University of Leicester illustrates the complexity of the measuess necessary for its scientists to identify the remains as Richard III. However, analysis of the remains would have been meaningless without a known relative with whom to compare the DNA, and this involved another thread of the investigation. The investigation, exhumation and analysis highlighted the substantial costs of obtaining meaningful evidence, and also the role of publicity in generating public interest and possible funding, and subsequent income generation.
Had the exhumation come before the ecclesiastical courts, the unlikely probability of success would have been balanced against the public benefit in the potential discovery of a “lost” English king. In the early stages, Richard Buckley, the archaeologist heading the team, had admitted the project was a long shot: “We don’t know precisely where the church is, let alone where the burial site is.” He is quoted as indicating that he thought the odds were “fifty-fifty at best for [finding] the church, and nine-to-one against finding the grave.”
Alfred the Great Following the successful identification and commercialization of the remains of Richard III, others have sought to discover and identify other pre-conquest English monarchs (but note the Comment on our post on Re St Leonard Beoley). On 10 February 2013 we reported that as a result of interest generated by this discovery, attention had been directed towards other “lost” English monarchs, of which King Alfred the Great (849–899) headed the list of likely possibilities. The church of St Bartholomew, Winchester and its local community had been undertaking research over three years, and in February 2013 the University of Winchester sought permission to examine the contents of the grave where King Alfred was last thought to have been buried.
However, events took a new turn when at the request of the PCC, the remains within the grave were exhumed. This was under the authority and advice of the Chancellor of the Diocese of Winchester, Judge Christopher Clark QC, whose order imposed a confidentiality measure for reasons of security. A news release from the Diocese of Winchester stated: “the immediate decision to carry out this exhumation was made by the PCC … of St Bartholomew’s to counter the risk of theft from or vandalism to the grave; this is in light of heightened risk owing to widespread recent speculation about the significance of its contents”.
At this stage, no application had been made to carry out any scientific investigation, but when permission was granted for carbon dating, it was found that these remains were from the 1300s; however, a fragment of pelvis bone discovered at a previous dig at Hyde Abbey was dated to 895-1017, and consequently, this could belong to King Alfred the Great or his son Edward the Elder, or not. The carbon dating of the remains offered the potential to distinguish between the different sets of bones in the grave, c.f. the remaining six Winchester Mortuary Chests which are thought to include the remains of pre-conquest monarchs amongst those of the 11 or 12 people contained.
This case differs from others in that the decision to examine the remains took place after exhumation has authorized on the grounds of protecting the remains from unauthorized attempts at their removal; furthermore, the remains of King Alfred were thought to have been buried along with those of Queen Aelswitha (a.k.a. Elswith) and their son Edward the Elder. It was accepted that the investigation was a “long-shot” and under normal circumstances, it seems unlikely that permission would have been given to exhume.
William Shakespeare A petition was sought for a faculty to undertake various works at St Leonard’s Church, Beoley, Re St Leonard Beoley  Worcester Const Ct, Charles Mynors Ch, viz.
“[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.”
Three options for the investigation were put before the court [36, 37]; however, the Chancellor concluded:
“. 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”.
However, spurred on by the 400th anniversary of Shakespeare’s death, 23rd April 2016, there was renewed interest in his burial in the church of Holy Trinity, Stratford upon Avon. Non-intrusive examination of Shakespeare’s grave at Holy Trinity by the Staffordshire University strongly suggested that his skull had “at some point in history” been removed from the burial. The university’s team was then granted access to the crypt to laser scan the skull and carry out a forensic anthropological analysis [one of the options in Re St Leonard Beoley. However, the results revealed that this skull belonged to an unknown woman who was in her seventies when she died – ironically supporting the assessment of the former churchwarden of St Leonard’s: “I thought the skull small. It seemed to be more for a teenager or possibly a woman” .
Part II of this post will address issues of ancestry, forensic evidence and Part III will consider medical and other issues.
- Re Sarah Pope (1851) 15 Jur 614 determination whether or not the deceased, very recently buried having died in a workhouse, was Sarah Pope, a co-trustee of certain property who had gone missing some months before.
- Druce v Young  P 84 concerned a disputed probate action and whether or not there were any remains at all in the vault; it was alleged that the testator had been seen alive after the date of the grant of probate.
- Re Walker, deceased (2002) 6 Ecc LJ 417, a faculty was granted permitting an exhumation for a pathological inspection and examination of the remains of stillborn twins since cogent evidence indicated that only one twin might have been buried.
- Re Makin, deceased (2001) Liverpool Const Ct: Hamilton Ch, (reported as Re Makin, deceased (sub nom Molyneux) (2002) 6 Ecc LJ 414, a faculty for the opening up of a casket was refused despite questions being asked about whether it contained all the bodily organs of a five month old child who had died at Alder Hey Hospital in Liverpool. This is considered in Part II of this post.
- Re Holy Trinity Bosham,  Chichester Const Ct, Hill Ch
- Re Locock, deceased  Rochester Consistory Court, Goodman Ch*
- Re Saint Nicholas’s, Sevenoaks  1 WLR 1011* [Arches Court consideration of appeal from Re Locock, deceased].
- Re St Mary, Sledmere  York Const Ct, Collier Ch.
- Re Radcliffe Infirmary Burial Ground (2012) 14 Ecc LJ 139-140
- R (Plantagenet Alliance Ltd) v Secretary of State for Justice  EWHC 1662, but for DNA aspects, see Richard III’s DNA and section 25 Burial Act 1857 ‡
- Alfred the Great, 2013 [unreported], but see Alfred the Great’s Remains Exhumed?
- Mary Kelly, 2015, see Exhumation of Jack the Ripper’s last victim? ‡
- Re St. James Gorton  Manchester Const Ct, Tattershall Ch.
- Re St Leonard Beoley  Worcester Const Ct, Charles Mynors Ch.; see Shakespeare’s Skull – Church court rejects Gothic fiction and the follow-up Shakespeare’s missing skull – the mystery deepens.
- Re London Road Cemetery Mitcham  ECC Swk 12
- Re St. John’s Cemetery Elswick  ECC New, see also Exhumation for DNA testing in a criminal case: Re St John’s Cemetery.
* The exhumation of Richard III was undertaken under a Ministry of Justice licence issued under s25 Burial Act 1857, R (Plantagenet Alliance Ltd) v Secretary of State for Justice.
‡ Denotes consideration outwith faculty jurisdiction.