The issue of the exhumation and re-interment of cremated remains has recently been considered in Glasgow Sheriff Court.

Background

In Diocese of Glasgow, Application by the Diocese of Glasgow and Galloway of The Scottish Episcopal Church [2019] ScotSC GLA 33, Holy Cross Church had been closed in 2017 and the building and land were sold to a business operating a children’s nursery [1]. Adjacent to the church is a memorial garden, which from time to time was used to inter what were described as “cremains”. Said Sheriff Cubie in a footnote to [2]:

“Cremated remains are apparently properly referred to by the portmanteau term ‘cremains’, although I note that the Burial and Cremation (Scotland) Act 2016 which comes into force on 4th April 2019 confines itself to defining ‘ashes’ as the material (other than any metal) to which human remains are reduced by cremation.

There were 107 recorded cremains; and part of the sale agreement was that the Diocese would remove the interred ashes at its own cost and make good all damage by 25 June 2022 [2]. The intention was to create a new memorial garden at St Bride’s Church, Hyndland, and re-inter the cremains there [3]. The proposal was that after careful excavation overseen by an archaeologist experienced at identifying cremains, the entire volume of soil and material would be removed – to ensure that all of the areas with definite evidence of cremains would be included – and “carefully placed” into the new memorial garden. The wooden crucifix, plaques and flower vases from the original garden which remained intact would be reinstated and the area landscaped [19].

The issues

The Diocese had initially sought a declarator on two issues:

• Crave One of the application was that “All processes of disintegration have occurred at the memorial garden adjacent to former Holy Cross Church. And no warrant to disinter cremated remains is required for the disinterment of the remains within the memorial garden” [4].
• Crave Two was “To grant a warrant to the applicant to disinter the remains which are interred in the memorial garden adjacent to the southwest wall of the former Holy Cross Church” [14].

As a matter of law, there was no requirement for a warrant from the court to disinter bodies if the process of disintegration had occurred. In Steel v St Cuthbert’s 1891 18 R 911, the Lord President (following Erskine’s An Institute of the Law of Scotland ii. 1, 8) said (at page 918): “But it is a very well established fact, leading to a rule of law, that after a certain period human remains resolve into their original dust, and it is by no means necessary to maintain the ground, in which they are buried, intact.” [5] However, it was not clear that the test of whether all “processes of disintegration” had occurred could be read across to cremains and “it can hardly be correct that cremains are not subject to some measure of control over their interment or disinterment” [7]:

“Modern cremation gives rise to different considerations. If, as may be the case, there is no further process of disintegration to occur in relation to cremains, theoretically no warrant would be required for any interference with memorial gardens or other areas where ashes are buried or scattered, whatever the timescale between interment and interference. The absence of that natural period of disintegration could potentially impact upon the requirement for reverence, dignity and respect which the court takes into account in exercising its discretion. Accordingly in my view, any intention to disinter cremains should involve an application to the court” [9].

The Sheriff had previously declined to grant the declarator sought in Crave One [10] and the Diocese no longer insisted on it [11].

As to Crave Two, the Diocese and its agents had made strenuous attempts to identify and contact surviving relatives of those whose ashes were in the memorial garden [12] None had intimated any wish to oppose the application and the Lord Advocate had indicated that he would not intervene, given that Crave One was no longer insisted upon [13].

The law on cremains

The Sheriff noted that there was, apparently no authority dealing with cremains [20]. He considered that a parallel could be drawn with the development of the law in Scotland on the disinterment of coffins. In Paterson Petitioner (No 2) 2002 SC 160, Lord Carloway had identified the broad principles which applied to bodies after interment as follows:

 “51. The broad principles of the relevant law affecting this case are best set out in summary by Lawrence Hill Watson, Advocate, in his introduction to subject of Burial and Cremation in Green’s Encyclopaedia (2nd edn, Vol 2, para 1265) and I cannot improve upon his succinct statement of the position. After a body has been interred: ‘the remains are sacred wherever they are interred; and so a grave is protected against disturbance, at least until “the process of disintegration is complete” … There are two exceptions to this rule: (1) If those having the management of a public burial-ground are compelled to disturb the grave from considerations of necessity or high expediency …or (2) if the burial was in ground in which there was no right of burial; in these cases disinterment appears to be permissible, on condition that the remains be reinterred with all decency and respect. In other cases authority to disinter and reinter may, on cause shown, be obtained from the Court of Session or (more usually) from the sheriff’…

52. Where there is no right to be enforced but a person wishes to disinter remains for practical or other reasons then he may apply to the court for authority to do so. The court may grant that authority on cause shown. Because of the manner in which the general law regards remains, such cause would have to be something more than a matter of convenience … the court [is] exercising a discretion whether or not to permit the disinterment having regard to all the circumstances.” [21]

He also noted the judgment of Sheriff Principal Reid in Sister Jarlath, Petitioner [1908] SLT (Sh Ct) 72 that a private burial place “may be dealt with by the owner like any other part of his property subject to the sole condition that, except for some good cause, the graves shall not be disturbed until the process of disintegration is complete”, that the case required the court to exercise its discretion and that “The only way that the applicant can proceed is if the court grants warrant” [22].

The judgment

Sheriff Cubie concluded as follows:

“Standing that the issue of disintegration is not insisted upon, I conclude that remains including cremains are sacred wherever they are interred. The memorial garden and the cremains therein are protected against disturbance. Cause must be shown for the disinterment. The reason for disinterment must be necessity or high expediency – something more than mere convenience. The court should be satisfied that the remains are to be reverently reinterred, with dignity and respect” [23].

The applicant is bound contractually to remove the cremains; on one view, that obligation engages “necessity.” But it is an unattractive proposition if applicants, by committing themselves contractually to a course of action, could elide the legal requirement by arguing for that self-imposed necessity. I consider that the court should look beyond the contractual obligation. The existence of that contractual obligation is relevant but not determinative and must be looked at in context [24].

Given that the church building had come to the end of its useful life as a place of worship, the new occupier proposed to use the church and its grounds as a nursery and the continued presence of the memorial garden was not consistent with a building no longer used as a place of worship, the Diocese wanted to have another memorial garden, had found a suitable location and had provided information about the sensitive excavation, removal and reinterment of all material contained within the original garden [25], the Sheriff was satisfied that there was “a necessity or high expediency” in disinterring the cremains and that they could be “re-interred with decency and respect into an atmosphere and situation akin to the previous garden” [26].

The declarator sought in Crave Two was granted [27].

Comment

Looked at from South of the Border, the case is interesting because, under s.25 Burial Act 1857 (Offence of removal of body from burial ground), in England and Wales “It is an offence for a body or any human remains which have been interred in a place of burial to be removed” [my emphasis] without either a faculty or a licence from the Ministry of Justice: see the current MoJ application form, here. And while the statement that “[t]here is apparently no authority dealing with cremains” is no doubt true for Scotland, there are numerous judgments on the treatment of ashes by the consistory courts of the Church of England.

Further, having excavated Anglo-Saxon skeletons at St Peter’s, Monkwearmouth, and St Paul’s, Jarrow, I’m not convinced by the Lord President’s observation in Steel that “it is a very well established fact … that after a certain period human remains resolve into their original dust”. Flesh decays: bones remain intact. To the best of my knowledge, you still need an MoJ licence or a faculty to disinter a skeleton, even if it’s a thousand years old.

[With thanks to Marc Quigley-Ferriday for drawing the case to my attention.]