At the Privy Council on 12 October 2022, amendments were made to an Order dated 20th March 1857 which prohibited further burials in All Saints Churchyard, Pontefract, West Yorkshire*. These changes permitted the burial of the unknown human remains from the 1340s to 1390s exhumed under a MOJ Licence from the former St Richard’s Dominican Friary in the then disused site of Pontefract General Infirmary.
The new Order concerns Re All Saints Pontefract  ECC Lee 6 and resolves an impasse caused by the burial, without authority, of human remains within this closed churchyard. The present incumbent sought assistance with a “troubling situation” that had arisen before she was collated in February 2019 . She only became aware of the re-interment in January 2022 on receipt of a letter seeking permission to install a stone plaque to commemorate the re-interment, itself problematic since the plaque had already been carved without consultation on the wording .
A Ministry of Justice (MOJ) Licence had been issued on 15 July 2011 under s25 Burial Act 1857 to the Pontefract and District Archaeological Society 27th to permit archaeological excavations at a former Dominican friary of Our Lady, Saint Dominic and Saint Richard, founded in 1256 and surrendered to the King’s Commissioners on November 1538 . The Licence concerned the removal of human remains of persons unknown from their place of interment at the site of Pontefract General Infirmary, then in the ownership of the Mid-Yorkshire NHS Trust, and their reinterment “in a burial ground in which interments may legally take place” or “retained in accordance with the requirements of the Wakefield County Archaeologist” .
The Court was not informed of the overall outcome of the excavation, but was informed that two partial skeletons, one male and one female, were discovered and Carbon14 dated to the second half of the fourteenth century; These two skeletal remains, in biodegradable paper bags, were interred in All Saints churchyard on 27 March 2015 at a location selected by PDAS .
Circumstance of the interment
The Roman Catholic Diocese of Leeds was unable to offer a burial space, and indicated that:
“. …[as] there is no designated catholic graveyard or cemetery in the area then the local authority multi-denominational provision used by the catholic families of Pontefract should be appropriate for these matters” .
At the suggestion of the late Revd Harry Merrick, an ordained permanent deacon assigned to All Saints at the material time, consideration was given to interment in the All Saints churchyard  to ; however, Mr Merrick did not discuss the matter with the then incumbent. The Court was presented with no evidence to suggest that a faculty (or any other permission) was ever granted for the interment; the then Incumbent of the parish and the then suffragan Bishop of Pontefract in the former Diocese of Wakefield each stated that they were unaware of the re-interment and did not purport to provide any form of consent ; furthermore, there are no references to these events in the PCC minutes of the time, and no entry in the Register of Burials relating to this re-burial .
Nevertheless, the remains were reinterred in All Saints churchyard in 2015 at a very brief ceremony attended by the Revd. Harry Merrick, a representative of PDAS, and “conducted by or at least involving a significant contribution from a Roman Catholic priest from a nearby Church”. The low-key ceremony comprised a “single prayer from a pre-1962 Roman Catholic rite, and a recital of the Our Father (or the Lord’s Prayer, as it would be known by many Anglicans) in Latin, a Hail Mary and a Glory Be, the whole ceremony lasting but a matter of minutes”. Glyn Samuel, Dep. Ch. noted:
“ …The [Diocesan] Chancellor§ has opined that this seems to reflect a misconception as to the nature of the ecclesiological and doctrinal understandings of the sixteenth-century Reformation and their impact on ecclesia anglicana.”
. The fact that a Roman Catholic Priest in-effect presided over the re-interment should not cause any great issue as under section 6 of the Burial Laws Amendment Act 1880 a burial may take place either without any religious service or with such Christian and orderly service at the graveside as seems appropriate”.
Order in Council – closure of churchyard
Whilst the closure of the churchyard under the Order made by Queen Victoria on 20 March 1857 was undisputed, “the Order proved difficult to locate, which can provide a salutary lesson for PCCs and diocesan registries of the importance of carefully retaining such documents”. Similarly, the documentation that transferred legal responsibility for the maintenance of the churchyard to Wakefield Council, s215 Local Government Act 1972, has not been located#, although the Chief Legal Officer accepted that the Council had maintained the churchyard for some years, and did not dispute the existence of the Order in Council or the transfer of responsibility. However, Council officers were unaware of the re-burial in 2015.
Burial in closed churchyards – the law
The Diocesan Chancellor§ had requested assistance from a number of sources in relation presenting the issue of the relevant legal and other principles applicable to the interment of human remains (as opposed to cremated remains) in a churchyard that has been closed by Order in Council: Advisory Panel on the Archaeology of Burials in England; Church Buildings Council; Historic England (which expressed no views); and the Secretary of State for Justice, through the Senior Caseworker on Death management, miscarriages of justice and Inquiries .
The judgment noted: “there is an unsurprising consensus that burial in a closed churchyard is unlawful. As is made clear by s3 Burial Act 1853, it is not merely unlawful it is criminal…”, although a faculty might be granted to inter cremated remains in a churchyard closed by Order in Council, Re St Mary’s Barnes  1 All ER 456. This is a simple matter of statutory interpretation – what is outlawed is the burial of the dead – not the interment of cremated remains – and the criminal offence attaches to those who bury “any body” or assist in the same. “There is a subtle but clear distinction between the wording of the first part of the statutory section (that establishes a statutory prohibition) and the second part (that creates a criminal offence). In the latter, reference is made to the burial of ‘any body’ and it must be conceded that it could be open to argument that that a skeleton is not a body for those purposes .
Disposal of the instant proceedings
The Deputy Chancellor noted that where the proposal for which permission is sought is contrary to English law, a faculty is ineffective and ought not to be issued, Re Christ Church, Spitalfields [unreported but reviewed noted at (2016) 18 Ecc LJ 128, and the second, substantive appeal reported at Re Chris Church Spitalfields  EACC 1. Hence, if a faculty, sought prospectively, could not have been granted as a matter of law, then neither can a confirmatory faculty. There are four circumstances in which burials may be made in a closed churchyard:
- Burials permitted under the original Order in Council: This may be through named individuals or members of particular families, those to be interred in family vaults or family graves, or otherwise. However, There is no standard form, and such orders have been variously expressed over past centuries.
- Burials under an amended Order in Council: Examples are that for R.A. ‘Rab’ Butler MP to be buried in the closed churchyard of St Mary, Saffron Walden, Essex.‡. A similar amended Order was made in the case of the remains of the navigator and cartographer, Captain Matthew Flinders, in Re St Mary and the Holy Rood Donington  ECC Lin 1.
- Reburials of human remains disturbed in the same cemetery: In Re St Mary’s Barnes  1 WLR 531, Southwark Consistory Court, which was approved obiter by the Court of Arches In Re St Michael and All Angels, Tettenhall Regis  Fam 44, Both of these passages were cited by the Court of Arches, without adverse comment, in the second Spitalfields judgment, “and therefore there seems no reason to question its accuracy as a correct expression of the law”.
- The interment of cremated remains: s88 Ecclesiastical Jurisdiction and Care of Churches Measure 2018. The significance of this provision is the power to grant a faculty to permit the burial of cremated remains in a closed church, but the expression “cremated remains” must be given their ordinary and natural meaning. Skeletons unearthed in the archaeological excavation cannot be treated in the same way as cremated remains. Section 3 of the Burial Act 1853 makes it unlawful ‘to bury the dead’ in a closed churchyard, and the interment of cremated remains does not amount to the burial of the dead as intended by that statutory section.
The Deputy Chancellor noted that at the time of the petition what occurred in the instant case did not come within any of the above four exceptions. The members of PDAS did not wish to seek an exhumation. However, that would seem one of only two options open to the Court in the circumstances as they stood at the time of the petition, viz.
- grant a faculty for an exhumation, so that the terms of paragraph 2(d) of the MOJ Licence could be complied with (i.e. return the human remains to the safe custody of those named in the Licence so that they could either be reinterred in a burial ground in which interments may legally take place or else be retained in accordance with the requirements of the Wakefield County Archaeologist); or
- leaving the matter to lie as an irregularity and take no action.
Understandably, the latter option did not find favour with the Ministry of Justice, and with regard to the former, in the light of Re Blagdon Cemetery  Fam 299 the Deputy Chancellor observed:
“. …Any application for a faculty for exhumation (in the circumstances as they stood when [the incumbent] made her petition) would almost certainly have been granted because the burial in 2015 was conducted owing to a mistake, in this case a mistaken belief that the burial was permitted in law…A refusal to grant a faculty for exhumation would be to condone an unlawful act.
Rather than exhuming the remains and returning them to the care of those named in the expired MOJ licence, it was proposed by the Ministry of Justice that a petition be made to the Monarch to vary the order in council so as to permit their reburial, as in fact happened on 12 October 2022 . However, the Deputy Chancellor stressed “[t]hat amendment to the Order in Council is not, of course, retrospective, but the solution appears to satisfy both the Local Authority and the relevant government department”. He concluded:
“. Given the above I cannot grant a retrospective faculty, but I do grant a confirmatory faculty for the burial of these human remains. It would seem ludicrous just for forms sake to require exhumation and then immediate re burial of the remains, and that would be contrary to the principles of permanence of Christian burial espoused in Re Blagdon Cemetery. That means that for a period of over seven years the remains were unlawfully buried.
I shall direct that both the burials register of the Church and the log book of the 27th Church be endorsed that the human remains were unlawfully buried on March 2015 but that illegality was corrected by a variation of the Order in Council closing the churchyard to permit burial of these human remains, and by a confirmatory faculty. The burial plan of the Churchyard should also be amended to show the site of this reburial.”
He made a provisional order that the PDAS, being a party to the proceedings, pays 50% of the Court costs as assessed by the Registrar, to come into effect as a costs order at 35 days after the Registrar has made his assessment. He invited the Registrar to keep the costs to the minimum possible, and waived any Chancellors’ fee for preparation of this judgment.
Notwithstanding anything in the Order in Council made under the Burial Act 1853 on 20th March 1857, directing the discontinuance of burials in All Saints Churchyard, Pontefract, West Yorkshire (referred to in the 1857 Order as “the old parish churchyard”), the burial may be allowed of the unknown human remains from the 1340’s to 1390’s [sic] exhumed from the former St Richard’s Dominican Friary in the then disused site of Pontefract General Infirmary, within the burial ground of All Saints Churchyard, Pontefract, West Yorkshire.”
§ Glyn Samuel, Dep. Ch. prefaced his judgment “I should also state from the outset that a significant amount of the work in preparing this judgment, especially as regards the background in fact and in law, was carried out by the Chancellor of the Diocese [The Worshipful Mark Hill, KC], who is regrettably unavailable to make judgment on this matter”.
‡ See St Mary’s, Saffron Walden Burial Registers 1558-1892, Saffron Walden Historical Journal,  Vol 2 (4), in which John Read notes that although the churchyard was closed from 1 January 1857, 18 further burials are recorded at sporadic intervals between 1858 and 1892 – possibly burials in family graves which were not full by 1856, and still had some reserved spaces. Depending upon the wording of the closure Order, this is consistent with the analysis in the judgment.
The article notes that a special dispensation was granted in 1982 when Lord Butler (better known as R A Butler), the former Cabinet Minister and M.P. for Saffron Walden died, and was buried in a plot on the north-east side of the church.
# A noted on Closed Churchyards by the Diocese of Gloucester indicates that legal provisions for the transfer of responsibilities prior to 1 April 1974 (when the 1972 Act came into force) are governed by the provisions of s18 Burial Act 1855.