In June 2019, the General Synod Legal Advisory Commission published new guidance Burial of a portion of a deceased’s body or ashes (“the Opinion”). Aspects of the Opinion are relevant to the recent consistory court judgment In the Matter of SMF deceased  ECC Lee 4, which considered whether cremated remains could be exhumed to permit a small quantity of the buried ashes to be processed to form a glass-like material to be set into a ring as a memento of the deceased. The case will be reviewed in a later post. Here we consider the wider implications of this guidance which focusses on issues relating to burial rather than to exhumation.
The Legal Advisory Commission was asked for an Opinion on the burial of a portion of a deceased’s ashes, and in view of the legal commonalties with the burial of part of a deceased’s body, the Opinion seeks to address both matters . After a whistle-stop canter through the legislation associated with transplants, anatomical teaching, post-mortems &c, the Opinion comments “[o]nce disposal is required or permitted the body parts may inter alia be the subject of burial or cremation” . The statutory provisions are not addressed in the Opinion, but are summarized below.
Mandatory Burial: Canon B 38
The Opinion explains the distinction between a burial which is mandatory under Canon B 38, and a burial which is discretionary by reason of its falling outwith the scope of the Canon. Paragraph  lists the relevant parts of Canon B 38 Of the burial of the dead:
“(1]) In all matters pertaining to the burial of the dead every minister shall observe the law from time to time in force in relation thereto, and, subject to this paragraph in general, the following paragraphs of the Canon shall be observed.
(2) It shall be the duty of every minister to bury, according to the rites of the Church of England, the corpse or ashes of any person deceased within his cure or of any parishioners or persons whose names are entered on the church electoral roll of his parish whether deceased within his cure or elsewhere that is brought to the church or burial ground or cemetery under his control in which the burial or interment of such corpse or ashes may lawfully be effected…
(3) Cremation of a dead body is lawful in connection with Christian burial.
(4) … (b) The ashes of a cremated body should be reverently disposed of by a minister in a churchyard or other burial ground … or on an area of land designated by the bishop for the purposes of this sub-paragraph or at sea.
(6) If any doubt shall arise whether any person deceased may be buried according to the rites of the Church of England, the minister shall refer the matter to the bishop and obey his order and direction.”
Where a duty to bury arises, there is a concomitant right, which is enforceable by the personal representatives of the deceased, to have the corpse, body or ashes buried in accordance with that duty, s88 Ecclesiastical Jurisdiction and Care of Churches Measure 2018.
The Opinion notes that neither the word “corpse” nor the word “body” is defined by Canon B38, but the online Oxford Dictionary of English defines “corpse” as “a dead body, especially of a human being rather than an animal” and “body” inter alia as: “The physical structure, including the bones, flesh, and organs, of a person or animal; the trunk apart from the head and limbs; a corpse” . On this basis, it concludes:
“… It is the opinion of the Commission that the word “ashes of a deceased body” should be construed ejusdem generis with the preceding word “corpse” so as to refer to the ashes of the main physical body of a deceased person and thus falling within the mandatory requirements of Canon B 38 rather than (subject to what is said below) referring to any lesser amount of ashes pertaining to parts of that body.
This being so, there is no duty on the minister to bury, for example, a separate heart or the ashes of such a heart unless, subject to other legal requirements, it is to complete the previous burial of the deceased’s body or ashes.”
In the light of footnote 8, (which indicates that “other requirements” may include the necessity for a faculty for exhumation, the depth of the grave and health and safety considerations), the phrase “unless, subject to other legal requirements” appears to imply “unless, precluded by other legal requirements”.
Paragraph 6 notes “[c]learly the decision whether the bodily remains constitute “a corpse”, or ashes are those which constitute “a body”, within the meaning of Canon B38, paragraphs 2 and 4(b) respectively, is a matter of fact and degree and is situation specific … The separate burial of those organs, such as a heart, would not amount to the burial of a corpse or body. The same reasoning applies in relation to the ashes of a deceased person or parts of that person’s body. It continues:
“The removal of “some few particles of … cremated remains” prior to interment would be regarded as de minimis and the remaining ashes would still constitute those of a human body [footnote 9, v infra]. In cases of doubt the matter must be referred to the bishop and the minister must obey his order and direction: see Canon B 38, paragraph 6.”
This paragraph is relevant to the creation of jewellery from ashes, and was explored recently in In the Matter of SMF deceased  ECC Lee 4. The removal of cremation ashes following exhumation is considered further in footnote 9, which includes a summary of In the Matter of Carleton Cemetery (Blackburn Diocese, petition number 61 of 2015). In this case, the petitioner sought permission to remove “a little of her mother’s cremated remains [to be] placed in a ring” [para.14 of the judgment]. Chancellor Bullimore noted: “It is worth remembering that in times gone by, families had death masks taken of those recently deceased, usually I believe eminent people, and in more recent times they kept clippings of hair or nails in lockets or other personal jewellery, as a link with loved ones” [para.17 of the judgment]. The footnote further observes “the considerations pertaining to a petition for exhumation are necessarily wider than those pertaining to the original burial”. It refers to Re St Aidan’s Throckington Churchyard  ECC New 1 as “an interesting exhumation case concerning ashes”, summarized below.
The Opinion states “the fact that in any given circumstances there is no duty on a minister to bury parts of a body, or its equivalent ashes, does not mean that those parts cannot lawfully be buried according to the laws of the Church of England. Such a disposal must, of course, be reverently carried out whether it relates to ashes or to a body part or parts” . Footnote 10 comments “[i]t is difficult to argue that, because ashes have already been split into different parts, the disposal of one of those parts can no longer be “reverently” carried out: see Canon B 38, paragraph 4(b)”.
Paragraph 8 of the Opinion addresses the knotty question of the burial of body parts, or the ashes of such body parts, when a decision has been taken by the deceased’s personal representatives (or, in their absence, the deceased’s relatives) that some parts of the body or ashes should be buried elsewhere or not buried at all. In view of the Opinion’s comment in paragraph 5, it follows that this relates to circumstances involving ashes or remains of the “main physical body” of a deceased person:
“… Putting aside pastoral considerations there is. .. no duty to bury any other body part or ashes and the decision whether to do so is within the discretion of the minister of the parish. In reaching that decision the minister must pay due regard to any general guidance given by the relevant parochial church council and should take all other relevant matters into consideration, for example, whether the other body parts or ashes have received Christian burial, or are to remain under the physical control of relatives; or whether the ashes have been scattered on, or strewed in, ground that has not been consecrated. In such cases it is good practice for the minister to seek the advice of his or her bishop and the diocesan registrar”.
In this context, footnote 12 directs the reader to the Ecclesiastical Jurisdiction and Care of Churches Measure 2018, section 88(4)(5):
(4) A person who does not have a right of burial in the churchyard or other burial ground of a parish may not be buried there, or have his or her cremated remains buried there, without the consent of the minister of the parish.
(5) In deciding whether to give consent under subsection (4), the minister must have due regard to any general guidance given by the PCC of the parish in question.
The Opinion concludes:
“. The duty of any minister officiating at a burial according to the rites of the Church of England to enter the required particulars in the appropriate register book of burials applies to any burial whether or not the entire body or its ashes has been interred. Nevertheless, when the minister is aware that it is only a partial burial, it is suggested that a note to that effect should be made in the margin together with an indication of the location of the burial (if known) of any other parts of that body or ashes”.
The Opinion provides practical and timely advice, both in the text and in its footnotes which contain some important insights into partial burial. Distinguishing between the mandatory and discretionary duties of a minister is a fundamental consideration, and the guidance benefits from the inclusion of examples which qualify the discretionary requirements. Furthermore, it notes the importance of addressing pastoral issues in addition to adherence to the legislation, and of the reverent disposal of any ashes or body parts.
An area in which some clarification is necessary is in the use of the terms “main physical body” and “de minimis”; the former is used in the context of whether there is a duty on a minister to bury a part of the remains of a body or ashes, and the latter in relation to the removal the subsequent use of ashes (and presumably other small samples of hair, nails &c) either before interment or after interment and exhumation. The identification of items as de minimis suggests an absence of strong objections within the Church on the matter in the removal (and use) of small quantities of ash &c. However, this does not necessarily equate to the traditional position within the Church – that cremated ashes should be treated in like fashion to a human body and interred in one place, undivided – a view which was expressed in In the Matter of SMF deceased and which is reinforced by paragraph 6 of the Opinion.
Whilst requirements for jewellery are undoubtedly de minimis in terms of the quantity of material required, (which on our calculations would amount to only 0.14% to 0.20% of the total mass of ashes), their use does not sit easily with “reverent disposal”. Exhumation for the retrieval of ashes is likely to be a rare occurrence, the costs on the petitioner adding substantially to those involved in the production of the setting for a ring. However, the ease with which “a teaspoonful of ashes” can be secured before their burial or strewing, according to ecclesiastical law, suggests a further clarification is required, if such an application of the de minimis criterion is indeed acceptable within the Church.
In England and Wales the statutory provisions relating to cremation are The Cremation (England and Wales) Regulations 2008 SI 2841, section 19 of which relates to the cremation of body parts and section 29 to the incineration of body parts as waste. [Cremation in Scotland is governed by separate legislation, here and here, but the Opinion relates to the ecclesiastical law of the Church of England].
These alternative approaches are problematic in relation to foetal remains since they do not have legal personality. As we noted in our post Cremation, incineration and the foetus, although the need for a sensitive approach is quite explicit in the guidance currently available [reference 6 in the post], it is not assisted by these legal provisions. Furthermore, there are at present no requirements for the registration of a stillbirth before 24 weeks of pregnancy, although under section 3 of the Civil Partnerships, Marriages and Deaths (Registration Etc.) Act 2019 the Secretary of State is required to “make arrangements for the preparation of a report on whether, and if so how, the law ought to be changed to require or permit the registration of pregnancy losses which cannot be registered as still-births under the Births and Deaths Registration Act 1953”.
Re St Aidan Thockrington Churchyard  ECC New 1] was covered in our post Tom Sharpe burial no longer “Blott on the (ecclesiastical) Landscape”. The judgment concerns the successful application for a Restoration Order for Throckington Churchyard following the illegal burial of “loose mortal remains (ashes) from a small plastic bag, a medium sized bottle of Famous Grouse whisky, a fountain pen, two small tea-light candles and two red plastic numerals (broken)”.
Tom Sharpe died in June 2013 in Llafranc in North East Spain, and the items found in the churchyard were said to have been put there without permission by the respondent. The respondent claimed that the majority of his ashes were taken by his widow, but some had been left with her. Although she claimed to the contrary, the court was “wholly unable to accept [her] account of what happened and, in particular, that no human remains were buried by her” .