Evidence from the grave – III

Information for medical research; conclusions

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 on Law and Religion. This is the third 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; Part II looked at their use in the proof of ancestry, and this post, Part III, looks at medical research and attempts to draw some conclusions on the application of the law in this area.

Medical research

Exhumation and DNA sampling for specific virology research In a private petition, Professor John Oxford sought permission to exhume the body of Sir Mark Sykes who had died in 1919 during the second wave of “the Spanish Flu pandemic”, in order that sample might be taken for his research team; it was also necessary to exhume the body of his wife who died in 1930 and was buried in the same grave, Re St Mary, Sledmere [2007] York Const Ct, Collier Ch.. The Court noted that the European Commission website describes Professor Oxford as “a world renowned influenza virologist” with “a research interest is the pathogenicity of influenza, in particular the 1918 Spanish Influenza strain”.

The purpose of the work of the research team was to “unravel the genetic structure of the virus.. they have for some time been searching for victims of the virus who were buried in sealed iron or lead coffins…[and] believe that such bodies may be better preserved than those so far made available to them.” Sir Mark Sykes was identified as someone who was so buried and so whose body may provide material of the quality required by the team [2]. The six surviving members of the family of Sir Mark and Lady Edith Sykes, namely their grandchildren, had written letters of consent for the investigation [4]. The scope and importance of the proposed work is described in [5] tp [9].

In considering whether the long held presumption against the exhumation of human remains was overcome in this case, Chancellor Peter Collier QC reviewed the principle as examined in In re Holy Trinity, Bosham and In re St Nicholas Sevenoaks, [11 to 15], both of which are reviewed in Part I of this post.

The speculative nature of the project was considered: firstly, it had not been possible to put percentages of likely success either on the chances of the human remains being of sufficient quality to yield material that will be of any greater use than those so far made available to Professor Oxford’s team, or on the chances of his research providing significant steps forward in the efforts to combat the avian H5N1 virus [16]. Secondly, the Chancellor noted [17]:

“The whole point of research is to carry out experiments against a theory, the result of which experiments either on the one hand may support the validity of the theory or on the other hand may disprove it. It is not the likely truth of the theory that represents the justification for the exhumation, it is the fact that it is a step in a piece of bona fide scientific research to test the theory.”

In relation to public benefit, in 1958 in In re Parish of Caister-on-Sea, Norfolk County Council v Knights [1958] 1 WLR 309, Ellison Ch was not persuaded in relation to the removal of 400 sets of human remains to create a road widening scheme based on alleged traffic danger [18].

Drawing the threads together from these cases, Chancellor Collier said:

“[19]. … applying principles of proportionality: the greater the public benefit that might ensue, the less weighty the ground that is required to tip the balance in favour of permitting the proposed exhumation.

“[20]. So if the public benefit is only in terms of increased historical knowledge, such as in the Bosham and Sevenoaks cases, then grounds that are very weighty and have a high likelihood of success are required; whereas if the public benefit is in terms of possibly providing answers about and advances in the treatment of dangerous diseases, then grounds of less weight and with perhaps an uncertain chance of success may suffice.”

Applying that approach to the instant case, he was satisfied that: (i) the proposed work was part of a piece of bona fide medical / scientific research: (ii) there were strong grounds for believing that the human remains sought might enable the team to carry out research not until then possible; (iii) there was a real prospect that the proposed research would advance the capability of others to combat the H5N1 virus; (iv) in order to exhume the remains of Sir Mark it will be necessary to remove, without otherwise disturbing its contents, the coffin of Lady Edith. Faculty granted.

Exhumation and DNA sampling for unspecified human osteology research The University of Oxford proposed building a prestigious School of Government over the Radcliffe Infirmary Burial Ground; planning constraints required the design to incorporate an extensive basement which, in turn, would necessitate the exhumation of over 500 sets of skeletal remains for reburial in a local cemetery. Whilst it would have been possible for the Bishop of Oxford to remove legal effects of consecration of the burial ground under s22 Care of Churches and Ecclesiastical Jurisdiction Measure 1991, the diocesan authorities declined. Consequently, the Chancellor, Masters and Scholars of the University petitioned the consistory court for permission to exhumeRe Radcliffe Infirmary Burial Ground, [2011].

Timothy Briden notes that the judgment of Chancellor Bursell QC was directed to two principal issues: justification of the removal of human remains on the grounds of public benefit; and the prohibition in s3 Disused Burial Grounds Act 1884 against building on such a burial ground. He suggests “the Chancellor (at least by implication) considered [i.e. contrary to Briden’s arguments to the Court] that the prohibition would survive the removal of the remains and de-consecration of the land” [23]. However, as a result of the fortuitous history of ownership and sale of the burial ground through various Acts of Parliament, section 3 the Act was disapplied by the provisions within section 5.

With regard to the public benefit issue, Briden comments “the Chancellor was persuaded that proposed use of the land for [general] academic purposes amounted to a convincing justification for allowing exhumation. In this respect, the University was at a considerable advantage, as compared with a commercial developer, in advancing a case based on public benefit”. Chancellor Bursell cited the approach adopted by the Worshipful Mark Hill QC in Re Holy Trinity, Bosham regarding the special circumstances which could justify a departure from the presumption of permanency of burial [31]. However, he commented: “Fortunately, I do not have to decide in the present case whether exhumation should be permitted on the grounds of medical research as I have already concluded that exhumation should occur for the public benefit on other grounds” [34].

However, although the discussion in paragraphs 32 to 35 is headed as, and written in the context of “medical research”, the public benefit element is quite different from that considered in Re St Mary, Sledmere in which the results of the analysis were to be used in a prospective manner with a view to advancing medical knowledge in the field of virology. In Re Radcliffe Infirmary, the potential (but less detailed use) was essentially retrospective in the field of human osteology; In In Re St Nicholas, Sevenoaks, the Dean of Arches commented [24]: “…[I]t is accepted within the church that human osteology (the scientific study of human skeletal remains) is capable of benefitting the public by contributing to medical history and to forensic science”. Furthermore, the information relating to the proposed research in Re Radcliffe Infirmary, outlined in paragraph [32], was of a general nature and was likely to be of local rather than national importance.

Nevertheless, although the prospect of “medical research” did not provide the justification for exhumation, Chancellor Bursell permitted scientific investigation of the exhumed remains, citing with approval Re St Nicolas, Sevenoaks (at para 24). He said: “In these circumstances…a proper case has been made out by the petitioners that during and after the exhumation the bodies, or parts thereof, form the burial ground should undergo appropriate archaeological/medical research but only under very strict conditions. A faculty will therefore issue accordingly…” [35].

Removal of items buried with the deceased

For most interments in a grave, vault or mausoleum, there are few restrictions on items that may be placed inside the coffin, such as letters, books, items personal to the deceased (fishing rods, snooker cues &c), although necessarily, some restrictions apply to “green burials”. The removal of such items seldom comes before the consistory courts, although in Re St Aidan Thockrington [2016] ECC New 1 the Chancellor gave directions for the removal of the illegally buried ashes and other items of the author Tom Sharpe, reported here. Also in  “Digging up Exhumation” (1998) Ecc LJ 18-33, reference 89, Rupert Bursell notes that in the Diocese of Durham, he granted a faculty to recover the deceased’s wedding ring promised to one of her daughters but inadvertently buried with her. Citation was dispensed with and the faculty was granted within seven days of the burial.

There is little which would classify as “evidence” in the context of this post, although mention should be made of Dante Gabriel Rossetti who consigned a manuscript volume of poems to the coffin of Elizabeth Siddal when she was buried in Highgate Cemetery on 17 February 1862. However, seven years later, on 5 October 1869 the poems were retrieved after the Home Secretary, Henry A Bruce, had granted a licence under s25 Burial Act 1857. Fortuitously for Rossetti, it was Henry Bruce who had overseen his Triptych altarpiece at Llandaff Cathedral. Rossetti had been persuaded to exhume the manuscript by his literary agent, Charles Augustus Howell, to whom he granted power of attorney in the matter.

The retrieved document was “in a disappointing but not hopeless state”, reeking of disinfectant and decay with a number of large worm-holes obscuring some of the text. Nevertheless, the line beginnings and endings were legible and assisted Rossetti reconstruct it. He judged that the full transcription would quickly be accomplished “& the original burnt”.

Financial matters

The issue of finance is of secondary importance in the determination of the court. However this need to be considered by the petitioners in two area: the costs ordered by the court; and the sums involved in the proposed investigation should a faculty be granted. A number of cases were initiated by actors outwith the incumbent and PCC responsible for the proposed disturbance of the burial, as a result of university research, publication of a book, possibility of television or film production. In Re St Leonard Beoley it appeared that the costs would be borne by the organizations seeking the exhumation, under the terms of a draft agreement with the petitioners [57]. However, no such agreement seems to have been in place in Re St. James Gorton.

Although the proposed works were be undertaken without cost and supervised by an archaeologist named by the initiators, the petition was in the name of the incumbent and churchwardens, thereby exposing them to any liability for costs ordered by the court [14]. This raised the issue of the charitable status of the PCC and whether the submission of such a petition (and the expected successful outcome) was entirely consistent with its charitable objects. Furthermore, the petition appears to have been sought in advance of approval being granted by the PCC.

With regard to the examination of samples taken, much depends upon the objective of the investigation, from a straightforward comparison of DNA in forensic examinations to the application of such results where ancestry of the deceased is sought

Comment

The remains of the deceased have the potential to resolve issues of importance to the living, and the consistory courts have considered a number of petitions seeking permission for exhumation in order to obtain such information. This three-part post has examined a range of consistory court judgments in relation to the somewhat arbitrary classification of: the identification of remains; for purposes of ancestry and forensic investigations; and for medical research. Given that Re Blagdon Cemetery [2002] Fam 299 underpins recent judgments, it comes as no surprise that permission to exhume is granted only exceptionally, and in most of the cases reviewed, the petition has been refused.

The potential use of DNA was first addressed in Re Holy Trinity, Bosham [2003] Chichester Const Ct, Hill Ch, and Chancellor Mark Hill outlined the special circumstances which could justify a departure from the presumption of permanency of burial in the context of a speculative search for the remains of King Harold II, viz. 

“[31]. … (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”.

Subsequent cases have adopted a similar approach, although the criteria adopted for the justification of what constitutes “a cogent and compelling case for the legitimacy of the proposed research” have depended upon the facts of the case in question and the expected public benefit. As the Chancellor stated in Re St Mary, Sledmere [2007] York Const Ct, Collier Ch. [emphasis added],

“[20]. So if the public benefit is only in terms of increased historical knowledge, such as in the Bosham and Sevenoaks cases, then grounds that are very weighty and have a high likelihood of success are required; whereas if the public benefit is in terms of possibly providing answers about and advances in the treatment of dangerous diseases, then grounds of less weight and with perhaps an uncertain chance of success may suffice.

This is evident from the cases discussed in the three parts of this post; these demonstrate that the judgments have turned on the combination of factors, rather than relying upon just one: the likelihood of successful outcome and the strength of the supporting evidence; the extent of public (or other) benefit; the collateral issues to be addressed (such as disturbance of other interments). Importantly, it is not necessary for the a strong case to be made out for each of these factors; the context of the petition is important when the court undertakes its balancing exercise and determines their relative importance on the facts of the case.

Cite this article as: David Pocklington, "Evidence from the grave – III" in Law & Religion UK, 4 April 2019, https://lawandreligionuk.com/2019/04/04/evidence-from-the-grave-iii/

 

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