Information for ancestry and forensic investigations

The permanence of Christian burial and the application of Re Blagdon Cemetery [2002] Fam 299 has been a continuing theme on L&RUK and has also been explored in Leading Works in Law and Religion. The courts employ DNA profiling, carbon dating and others techniques in relation to: the identification of remains; the proof of ancestry; forensic evidence for use by the courts; and for medical & other related purposes. This is the second of three posts in which we consider the exhumation for the purpose of examining the remains of monarchs, mass murderers, and for medical research. In Part I we considered the identification of the remains for historical and other purposes; This post will consider their use in the proof of ancestry, and Part III looks at medical research and attempts to draw some conclusions on the application of the law in this area.

Proof of ancestry

Alleged family relationship to HRH Princess Louise: Concurrent with the case of Re Holy Trinity Bosham, [2003] Chichester Const Ct, Hill C, discussed in the earlier post, was an on-going case Re Locock, deceased [2002] Rochester Consistory Court, Goodman Ch in which the petitioner sought a faculty for the exhumation of his grandfather who had been buried in December 1907. It was contended that he was the illegitimate son of Her Royal Highness Princess Louise, a daughter of Queen Victoria and it was proposed to compare DNA obtained from his remains with that of the Russian Tsarina. In November 2002 the Rochester Consistory Court refused to grant a faculty for the exhumation and extraction of bone for DNA sampling, and the decision of Chancellor Goodman was upheld by the Court of Arches.

The appellant relied on two reasons for the exhumation: (1) he and his family wished to have their belief (their curiosity according to the consistory court judgment) that Princess Louise was the deceased’s mother confirmed or disproved (2) confirmation that Princess Louise gave birth to a child at that time would be of interest in various areas of nineteenth century law. The biographer of Sir Charles Locock (First Physician Accoucheur to Queen Victoria) was a member of the deceased’s adoptive family. The Arches Court agreed with the appellant’s submission’s that there would be no problem in identifying the remains, that there would be a better than 50% chance of obtaining DNA but dismissed the appellant’s submission that Article 8 was engaged or, if it was, that no breach could be established because of the remoteness of the relationship which the appellant sought to investigate, Re Saint Nicholas’s, Sevenoaks [2005] 1 WLR 1011.

Nevertheless, it ruled that the petitioner had not shown that there was a real likelihood of a connection between the deceased and Princess Louise; much of the argument he relied upon “when analysed, demonstrated improbability, and that has defeated his argument”. Furthermore, the Court stated that a crucial point was that the test of special circumstances for exhumation was not the scale of what was proposed, but the credibility of reasons put forward for exhumation [emphasis added]:

“The evaluation of the evidence which had to be carried out in determining whether special circumstances had been established was not to be any less rigorous because the proposed interference would be small. There was no inconsistency between the court’s approach when considering a petition to exhume a number of remains to achieve an objective of public benefit, and that adopted when considering a petition to exhume individual remains for some private purpose. To succeed, each needed to be based on a sound factual base, providing convincing reasons for the exhumation proposed.”

Mary Jane Kelly, Jack the Ripper’s last victim: In August 2015, it was reported that the Ministry of Justice had indicated that it would be “happy to consider [an] application for an exhumation licence” of Mary Jane Kelly, subject to two criteria: the provision of a letter from a forensics laboratory which is prepared to carry out the DNA testing; and the posting of a public notice on the grave for three months. The request was submitted by Dr Wynne Weston-Davies, the author of a book on the subject, who believed her to be his great aunt and was seeking approval for the exhumation of her body to permit a comparison of DNA samples taken from her bones or teeth with those taken from himself or his brother.

Subsequently, the members of the “Richard III team” at the University of Leicester became involved in a new project to identify Mary Jane Kelly. A university Press Release explains:

“The researchers were commissioned by author Patricia Cornwell…to examine the feasibility of finding the exact burial location and the likely condition and survival of her remains. This was done as a precursor to possible DNA analysis in a case surrounding her true identity following contact with Wynne Weston-Davies who believes that Mary Jane Kelly was actually his great aunt, Elizabeth Weston Davies.

A desk‐based assessment was undertaken of the identity and burial location of Mary Jane Kelly (d. 1888), St Patrick’s Catholic Cemetery, Leytonstone;  the summary of their 2017 Report concludes [emphasis added]:

“Today, Kelly’s modern grave marker likely has little relevance to the real location of her grave, which appears to have been unmarked before the 1980s, and the present marker is positioned in a burial system that has only been in use since the 1940s … As information presently stands, a successful search would require a Herculean effort that would likely take years of research, would be prohibitively costly and would cause unwarranted disturbance to an unknown number of individuals buried in a cemetery that is still in daily use, with no guarantee of success. As such, it is extremely unlikely that any application for an exhumation licence would be granted.”

With regard to the legal issues, one of the research team said:

“In order to make an application to the Ministry of Justice for a licence to exhume Mary Jane Kelly’s remains, the case for Kelly being Elizabeth Weston Davies needs to be compelling, not least because to test the theory by exhuming the remains will almost certainly involve disturbing the remains of other individuals buried in the vicinity.
“Relatives of these individuals would need to give consent and therefore traced and permission sought. Given the number of individuals whose remains would likely be disturbed, it would take months, possibly years, of genealogical research to trace them all.”

Bartholomew Gosnold, US founding-father: A skeleton dug up in Jamestown, USA, was thought to be that of founding-father Captain Bartholomew Gosnold; his sister, Elizabeth Tilney Gosnold, was buried beneath the chancel floor of  All Saints’ Church, Shelley, Suffolk, and the Diocese of St Edmundsbury & Ipswich consistory court granted permission to retrieve a small amount of DNA to enable a comparison, i.e. a tooth or a 5 cm² piece of bone from the pelvis.

David Lamming points out that “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 only records of the events are in media reports, (The Times (£) and the BBC); these indicate:

• it was unnecessary to exhume remains and samples could be taken after digging a narrow shaft in specific areas. However, it was necessary to remove Victorian tiles, a layer of 18th century bricks and the sand which provided a bedding layer for the brick floor.
• permission was granted because of the strength of the educational and scientific rationale presented to the court by the Jamestown team.
• The costs of the dig were met by the National Geographic Society.
• National media from the UK and the US attended the first day of the excavation.

Further reference to All Saints, Shelley is to be found in the APABE Supplementary Guidance Note 1 on sampling human remains for ancient DNA analysis; referring to this “landmark ruling” (albeit without an extant report on the judgment) indicated that the analysis was inconclusive and no match was found. Identification of the Jamestown body remains uncertain, as the body in All Saints’ Church – thought to be Elizabeth’s – turned out to be that of a much younger woman, possibly Anne Framlingham, who had married Philip Tylney, of Shelley Hall, in 1561 and died around 1601.

Forensic and other evidence

Evidence left by Ian Brady, One of the “Moors Murderers”: On 2 December 2014, the Rector and churchwardens of St James petitioned for a faculty:

“to excavate the top soil (to a maximum depth of 12 inches) in an area of St James Gorton churchyard measuring eight foot square which surrounds and includes the grave of the late Martha Bowring (private grave number 550 in the said churchyard) without disturbance to any of the remains interred in the said grave” Re St. James Gorton [2015] Manchester Const Ct, Tattershall Ch.

The possibility of investigating the grave was initiated following an email on 25 June 2014 to the Chancellor from Mrs Erica Gregory, who was “part of a group undertaking investigations into the murder of children in the 1960s by Ian Brady and Myra Hindley”; this indicated that Mrs Gregory had contacted some or all of the Petitioners because she believed that a hessian bag may have been buried by Ian Brady in 1963 or 1964 in the grave of Martha Bowring at St James, Gorton.

However, in Court refuses Moors Murder excavation we noted that the Chancellor “could not but be influenced by the fact that the Greater Manchester Police had declined to comment on Mrs Gregory`s application, let alone support it” [40].  He therefore concluded that on the facts of the case [41]: “the matters raised by Mrs Gregory do not justify the excavation of the topsoil, albeit only to a maximum depth of 12 inches in the area surrounding and including the grave of the late Martha Bowring [42]”.

Confirmation of ancestry for court-awarded compensation: In Re London Road Cemetery Mitcham [2016] Exhumation, ECC Swk 12, a petition was sought for permission to exhume the remains of Michael McGrory from a plot in London Road Cemetery, Mitcham, with a view to obtaining DNA samples. These would be used to confirm whether the petitioners were children of the deceased, and as a consequence, to determine their eligibility to certain funding. The deceased had been abused in a residential institution in the Republic of Ireland when he was young, and an Irish Court was holding an award made under the Residential Institutions Redress Act 2002.

Establishing whether the two petitioners were the children of the deceased would determine whether they were entitled to the award. The Parties Opponent were the brother and sister of the deceased. Much of the 17-page judgment [paragraphs 4 to 27] concerns actions in the Irish courts prior to the instant hearing at the consistory court. Noting that the determining an entitlement to an inheritance could provide special circumstances justifying exhumation, a position accepted by counsel for the Party Opponents, the Chancellor determined that it was appropriate to grant a faculty, subject to conditions relating to the undertaking of the exhumation, obtaining of DNA samples and re-interment.

Evidence relating to murder conviction: In 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. 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.

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.

The Chancellor noted that this 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. He commented [emphasis added]:

“[10]. …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.”

A petition was granted on the condition 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…”.

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

Identification of remains in aftermath of Alder Hey scandal: In Re Makin, deceased (2001) Liverpool Const Ct: Hamilton Ch, (reported as Re Makin, deceased (sub nom Molyneux) (2002) 6 Ecc LJ 414), the petitioner sought to resolve discrepancies concerning the contents of the casket returned to her by the hospital containing the retained organs of her child (M). The casket was buried in consecrated ground in the same grave as M had been buried. “The chancellor refused to grant the petition, observing that there was no expert evidence to show whether it would be possible to make such determination when two years had passed since the burial. He stated that, as a matter of principle, it would not be right to open the grave simply to check its contents when there was so much uncertainty whether it could provide a satisfactory answer.”

Part III of this post will look at exhumation for medical research.