On 17 June 2020, we posted Of graves, headstones and “offensive” inscriptions: Re St Margaret’s Rottingdean in which we examined the judgment and directions in Re St Margaret Rottingdean  ECC Chi 4, handed down on 15 June 2020, in the context of the developments following the public protests associated with the Black Lives Matter campaign which 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.
By an interim faculty issued on 15 June 2020, Hill Ch had sanctioned the temporary removal of two headstones from the churchyard of St Margaret of Antioch, Rottingdean, to protect them from possible damage or destruction. The headstones commemorated G H Elliott and Alice Banford, and it was felt that the inclusion in the inscriptions of a highly-derogatory racist expression (reproduced in full, including the derogatory term, at paragraph  of the substantive judgment below) was likely to cause offence. The Petitioners were the vicar and churchwardens of the parish, with the Archdeacon of Brighton and Lewes and the heirs-at-law of those memorialised by each headstone joined as Additional Parties.
On 1 February, Hill Ch gave a substantive judgment in Re St Margaret, Rottingdean (No. 2)  ECC Chi 1. The Petitioners had sought a faculty:
(a) confirming the temporary removal of the headstones in accordance with the interim faculty (and their boarding up which had been authorised by a separate interim faculty a few days earlier);
(b) authorising the recutting of the inscription on each headstone stone such that the offending term is substituted with the expression “Music Hall Artiste”;
(c) authorising the addition on one of the headstones of a further inscription comprising the details of another family member whose cremated remains are interred in the grave; and
(d) permitting the reintroduction of the headstones into the churchyard in the positions they previously occupied .
The Petitioners had explained that a complaint had first been received in April 2019 in an e-mail from someone living nearby and that it had been agreed that the complainant would petition the Consistory Court for a faculty to have the headstones altered by the removal of the offending word; however, no petition had been issued [12-15].
Matters had been brought to a head by the toppling of the statue of Edward Colston during the weekend of 6/7 June 2020 and online posts by the People’s Republic of Brighton and Hove agitating for the forceful removal of the headstones [16&17]. The parish was therefore granted an interim faculty to board up the headstones for their protection, and, shortly thereafter, the further interim faculty permitting their removal for safekeeping , but the temporary removal of the headstones attracted critical coverage in the local press, and on 20 June a far-right group affiliated to the English Defence League targeted the church exterior with stickers bearing union flags and images of men in black balaclavas pointing guns. The vicar was also subjected to abusive e-mails and telephone calls over several weeks .
Hill Ch pointed out that, though churchyards are in the legal ownership of the incumbent and the responsibility for their maintenance rests with the Parochial Church Council, headstones belong, at first, to the individual who commissioned and paid for them (during their lifetime), and thereafter to the heir-at-law of the person (or persons) commemorated [24&25]: see s.66 Ecclesiastical Jurisdiction and Care of Churches Measure 2018. He also noted that both Historic England and the Cathedral and Church Buildings Division of the Archbishops’ Council were in the process of drawing up policies and guidance on “contested heritage” [21&22].
Re St Alkmund, Duffield  Fam 158 envisaged a balancing exercise at : “will any resulting public benefit (including matters such as liturgical freedom, pastoral well-being, opportunities for mission, and putting the church to viable uses that are consistent with its role as a place of worship and mission) outweigh the harm?”  and the list was clearly intended to be non-exhaustive . Removal or alteration were not the only options where contested heritage was concerned. One could take a positive decision to do nothing, after proper discussion and consideration, one could opt interpretation, contextualisation or the addition of explanatory text. Alternatively, an item could be altered in some way or relocated to a different position in the building: “Removal to storage, disposal to a third party, or destruction are more extreme options for which the justification must be stronger” . Any discussion of changes to contested heritage should begin with the least invasive option .
In the present case, the PCC had rejected the replacement of the headstones with new ones and had concluded that refacing and recutting the existing lettering to replace the derogatory term would remove the cause of offence with the least possible damage to the integrity of the headstone. The heirs-at-law, as owners of the headstones, had consented [37&38]. The Church Buildings Council had not dissented .
He concluded that a faculty should be granted, subject to the following conditions:
“(a) That prior to any works being undertaken, a high-resolution photographic record of the two headstones be created and copies deposited with the parish, the local records office, the Diocesan Advisory Committee, and the Church Buildings Council;
(b) That the stonemasons document the treatment of the headstones in detail and produce a report as a record of the works for deposit with the parish and with any of the bodies listed at (a) above who request it;
(c) That the foregoing records, together with all of the research carried out to date, be retained by the parish and the local record office and be made available for anyone interested in researching the lives of Elliott and Banford and their importance in music hall history. The documentation should explain when the headstones were refaced and recut and why.
(d) That an interpretative folder or other display be placed in the church on a permanent basis, the specification for which is to be submitted in advance to the Chancellor for approval.
(e) That the recutting of the inscription on the Elliott headstone is not to proceed until the additional wording in respect of Mrs Elliott has been approved by the Chancellor. The current proposal is unnecessarily lengthy, does not follow the existing style for the dates, and duplicates RIP. With a little imagination, a more fitting version can be devised;
(f) That the works are not to commence until the Court costs have been satisfied in full” .
The BBC reports the case here.