The public protests associated with the Black Lives Matter campaign came to a head in the UK over the weekend of 6/7 June 2020 with the toppling of the statue of slave-trader Edward Colston and its deposit in the harbour in Bristol. This prompted subsequent action in Bristol and elsewhere, including a review of the “Colston windows” in Bristol Cathedral and a consideration of the inscriptions on two headstones at St Margaret’s Church, Rottingdean.
On Monday, the BBC reported that two headstones at St Margaret’s, Rottingdean – those of G H Elliott and Alice Banford, music-hall entertainers who wore blackface makeup – had been covered temporarily. The Archdeacon of Brighton and Lewes noted the deeply offensive nature of the inscriptions on their two headstones, and the investigations that had been underway as to the legal and other considerations around seeking a solution; the PPC website carries a statement which includes this:
“Following conversations which have taken place over the past year with local residents, and also following the recent high profile campaigns which have rightly drawn attention to issues surrounding racial prejudice, the Parochial Church Council (PCC) of St Margaret’s, Rottingdean took the decision last week to place protective coverings on the headstones of G H Elliott and Alice Banford, who both died in 1962.
The PCC has now decided to apply for a faculty to remove both headstones into safe storage as soon as possible. It has taken this decision for two reasons. It wishes, as is its legal obligation, to protect the property (the gravestones) of the relatives of the deceased, but at the same time would welcome an urgent conversation with descendants about the appropriateness of the wording of the inscriptions in their churchyard.
“A temporary expedient”
In his Judgment and Directions in Re St Margaret’s Rottingdean  ECC Chi 4, Hill Ch authorised an emergency faculty on Thursday, 11 June at 17.52 and a further emergency faculty was permitted on the afternoon of 15 June at 12.25 – on each occasion within minutes of the application being made to the Registry . Due to the sensitive nature of the proceedings, the judgment was not made public until the work authorised under the second faculty had been implemented .
The judgment notes that “some of the language used, whilst it may have been unobjectionable at the time, is now deeply offensive”  and “the considerable unease within the parish for some time but, for whatever reason, no application for a faculty has previously been made to the Court” . The circumstances leading to the emergency faculties are described in paragraphs  and , following which the Chancellor takes the opportunity to remind what he described as “some explanatory context”:
“. … The public generally regard the Church of England as a single entity. It is not. As Lord Hope of Craighead stated in the House of Lords’ decision of Wallbank v PCC of Aston Cantlow  UKHL 37: ‘The Church of England as a whole has no legal status or personality’: para 612.”
In the present context:
“. Churchyards are in the legal ownership of the incumbent or parish priest; although the responsibility for their maintenance rests with the PCC. Headstones, however, are not treated as part of the churchyard, but legally belong to the heir-at-law (living descendent) of the deceased person commemorated. An incumbent cannot remove a headstone or make an alteration to one, nor can he or she be directed to do so by the Archdeacon, the Bishop or any diocesan authority.
. Works in a churchyard, including the removal or alteration of a headstone, can only be carried out with the permission of a faculty, which is granted by the Chancellor, being the judge of the Consistory Court, wholly independent of the Diocese. A faculty can be sought by parochial clergy, by churchwardens, by PCCs, by archdeacons and by individual parishioners.
It is worth quoting the Chancellor’s reasoning and conclusions at some length:
. The emergency faculty which I authorised this afternoon is a temporary expedient. It was sought by the incumbent and PCC in order to keep the headstones safe during the current climate while a decision about their future is made. I considered it just to direct their removal to save the headstones from harm and to avoid any threat to public order or public safety in the churchyard. I have had particular regard to third-party rights, namely the living relatives of Mr Elliott, Miss Banford and Mr Banford, who are the legal owners of the respective headstones. The temporary removal of the headstones does not pre-judge the question of what is to become of them in the future. The Court may direct:
i. that they be reinstated, either unaltered or with some of the inscription obscured or re-cut; or
ii. that substitute headstones be installed in their place with different inscriptions; or
iii. that some other resolution be imposed.
Any works which are authorised will have to be paid for by someone. The Court is likely to be assisted by the expert opinion of a stonemason or professional letter-cutter to indicate the practical options which might be available. The Petitioners are to come forward with a detailed proposal as soon as possible, and in any event within six months.
. It is imperative that the legal owners of the two headstones are traced so that they can be made parties to these proceedings and their views taken into account. It is also appropriate that the Archdeacon be made a party to these proceedings.
. In order that this matter can be resolved as swiftly and sensitively as possible, I direct as follows:
(1) That the headstones erected in respect of (i) GH Elliot and (ii) Alice Banford (together with her husband Henry Banford) be removed from the churchyard of St Margaret, Rottingdean and stored in an undisclosed location approved by the Archdeacon of Brighton and Lewes where they are to be kept safe and secure until further order of this Court;
(2) That the headstones are to remain subject to the jurisdiction of the Consistory Court of the Diocese of Chichester;
(3) That the Archdeacon of Brighton and Lewes be made an additional party to these proceedings;
(4) That the Petitioners use their best endeavours to establish the heir-at-law of, respectively, GH Elliot, Alice Banford and Henry Banford in order that they can be served with these proceedings, made additional parties, and fully participate in the resolution of the matter;
(5) That on or before 15 December 2020 the Petitioners are to lodge at the Registry a petition seeking a confirmatory faculty for the matters authorised herein together with detailed proposals concerning the future of the two headstones
(6) Upon the lodging of the petition, the Court will make further directions for the determination of the matter including, but not limited to, public notice, DAC consultation, special citation and the service of lay and/or expert evidence.
(7) Liberty to the parties to apply to the Court for further directions.”
The wording of inscriptions on headstones has been reviewed in relation to the judgments in Re St Giles Exhall  ECC Cov 1 and Re Holy Trinity Drayton Parslow  ECC Oxf 3 in our posts here and here, respectively. However, the circumstances in St Margaret’s Rottingdean are appreciably different: in this case, the confirmatory faculty is to be sought by the petitioners with the possibility of heirs-at-law of GH Elliot, Alice Banford and Henry Banford as additional parties. The Court has determined three possible courses of action, and once a scheme has been developed and lodged it will make further directions for the determination of the matter.
Frank Cranmer and David Pocklington
[With our thanks to David Lamming.]
Cite this article as: Frank Cranmer and David Pocklington, “Of graves, headstones and ‘offensive’ inscriptions: Re St Margaret’s Rottingdean” in Law & Religion UK, 17 June 2020, https://www.lawandreligionuk.com/2020/06/17/of-graves-headstones-and-offensive-inscriptions-re-st-margarets-rottingdean/.