Our selection of some of the more interesting consistory court cases over the past year

The post Law & religion in the UK courts 2022 highlights some of the most significant UK religion cases in the secular courts over the past year. Decisions of the consistory courts of the Church of England have been reported on a monthly basis and these ~150 cases were summarized in our annual review. In this post, we summarize nine cases which demonstrate different aspects of ecclesiastical law which have been of interest during the year. These include: “contested heritage“; the practical aspects of the Church’s “net zero“ commitment; a variant on the “seats vs pews” debate; a hark back to the Pre-Raphaelites; the Burial Act 1855; and  cautionary tales from the courts.

”Contested heritage”

It has been argued that the term “contested heritage” is otiose since all heritage is or has been contested, or is contestable. Nevertheless, it provides a convenient shorthand for describing a group of consistory court cases of which in 2022 Re The Rustat Memorial, Jesus College Cambridge, [2022] ECC Ely 2 attracted widespread comment in the ecclesiastical and the popular press. Unlike many Oxbridge colleges, Jesus College is not subject to a peculiar jurisdiction, and the case was therefore considered by the Bishop of Ely’s consistory court, at which he gave evidence in support of the college petition. The case is reviewed in Law & religion in the UK courts 2022.

Although not as widely reported, in Re St Peter Dorchester [2022] ECC Sal 4 the Vicar and Churchwardens sought to move a memorial from inside the church to the County Museum next door to the church and erect a replacement memorial in the church. Arlow Ch determined that in this case the public benefit to be derived from the removal of the memorial, subject to its replacement with a memorial omitting details which might cause offence, would outweigh the harm caused.

In our review of Re St. Peter Dorchester, we noted that a further case, Re St Mary Barnes [2021] ECC Swk 10, considered a monument commemorating the Hoare family of Barn Elms and their links with the slave trade. This was not cited by either court but provides an example at the opposite end of the spectrum of involvement with slavery. In this case, Petchey Ch considered that none of the family members to be commemorated had links to the slave trade – only a member of the family two generations earlier than the oldest of them.

”Boiler replacement”

Most churches will be faced with the replacement of church heating systems in the short- to medium- term. Although issues relating to heating have been addressed on a number of occasions, here, as from 1 July 2022 the Consistory Courts have been required to assess petitions on the basis of the Faculty Jurisdiction (Amendment) Rules 2022; this aligns future considerations of the courts to the “net zero by 2030” requirement, for which the target year was changed from 2045 after minimal consideration at the General Synod in February 2020. The recently circulated case Re St Saviour Croydon [2022] ECC Swk 5 is the first to be considered in relation to the new provisions. Here, the churchwardens applied for an interim faculty for the replacement of the existing gas boiler of the Grade II Victorian church with a new one.

The Diocesan Heating Adviser had observed that in the “complex area” of carbon off-setting addressed in The Church of England Route Map to Net Zero Carbon by 2030, an early move towards offsetting might divert funds from emissions-reductions initiatives. He expresses his view that rather than spending money on offsetting, the parish would do better by spending on (or saving up for) future net carbon projects, which could include replacing the gas boiler in due course [32].

The Chancellor was satisfied that the Petitioners had carefully considered all the available options and that there was no alternative at reasonable cost to replacing the gas boiler with another gas boiler. Also, the urgency of the situation (a non-functioning boiler as winter approached) was a strong justification for granting a faculty. However, in his introductory remarks, he said:

“[16] If it were easy to achieve carbon neutrality, the 2030 or 2035 targets (the Diocesan target year is 2025) would be met; indeed they would be bettered. However it is difficult and the reason it is difficult is that it is expensive. Many parishes have to work very hard in order to pay their parish share to the Diocese and the ambition to achieve carbon neutrality is invariably a further financial burden. Accordingly decisions about ‘going green’ are inevitably ultimately about money.”

”Permanence of Christian burial”?

Removal of jewellery from coffin

The series of posts “Evidence from the grave” explored the application of Re Blagdon Cemetery [2002] Fam 299 – In Part I  the identification of the remains for historical and other purposes was considered;  Part II addressed their use in the proof of ancestry and in forensic investigations; and Part III looked at medical research, including the removal of items buried with the deceased.

Cases involving the removal of such items seldom come before the consistory courts, but in 2022  Humphreys Ch granted a faculty to authorize the exhumation of the remains of the Petitioner’s father and their re-interment after the removal of some jewellery. This resulted from a mistake by the funeral directors and had been included in the interment contrary to the wishes of the family, Re Stourport Town Cemetery [2022] ECC Wor 8. As the Worshipful Chancellor noted:

“[4] The circumstances of this petition fit within the legal exceptions to the doctrine of permanence, such that it is lawful and appropriate to permit exhumation in this case”,

and although the Parks and Cemetery Superintendent for Stourport Town Council was unenthusiastic about the proposal, he stopped short of directly opposing it.

““Coffin Sliding“

The procedure of “coffin sliding” is one of the tricks of the funeral trade for moving coffins to adjacent plots to remedy errors in their interment. The practice was strongly condemned by McGregor Ch. in Re Fairmile Cemetery Lower Assendon [2017] ECC Oxf 2 (at [35]), and in Re St John Washborough [2019] ECC Lin 6, in which Bishop  Ch explained [9]):

 “… if the coffin could be kept beneath the surface of the ground while work was done around it, then a faculty for exhumation may not have been required. I make no finding upon this issue which has not been argued before me”.

In Re St Andrew Horbling [2022] ECC Lin 2  it was suggested by Mr Barnacle, “a very experienced gravedigger used by the undertakers”, that if there were issues regarding the location of a coffin, a trench could be dug to an adjacent space and the coffin dragged there without it activity constituting “exhumation”. However, Bishop Ch provided the useful clarification (at [10]) (emphasis added):

“I am satisfied that such a procedure would not constitute exhumation of the body because at all times the remains would not be lifted from the ground but remain at the depth at which they were buried. A Faculty is required for this process because it interferes with human remains after burial, which would be unlawful without lawful permission, but because it is not an exhumation the legal framework set out in In re Blagdon 2002 Court of Arches does not apply”.

Bishop Ch expressed concern that the Rural Dean had found there to be no record of any burials in the churchyard since 2017, and emphasised the importance of an up-to-date and accurate churchyard plan being kept in the church. He noted that the Petitioner had accepted liability for the faculty fees, but not for the costs of the undertaker in the works that had been authorised. In addition, he was minded to require the PCC of St Andrew Horbling to pay or make a contribution to these costs but did not do so until the PCC, and in particular the churchwarden, had an opportunity to make any submissions, and the undertakers had provided a bill of costs for the works [14].

”Closed Churchyards”

A “closed churchyard” is generally taken to mean a churchyard which has been closed for burials by an Order in Council under the “Church Burial Acts”. Once an Order in Council to close a churchyard has been made, it is not possible to revoke it, but it is possible to vary the terms of the order, for example, to redefine the boundaries of the churchyard where they have been inaccurately described, or to change the categories of burial which are to still be allowed. During 2022, the Privy Council issued two such Orders. On 16 February 2022, an Order made under the Burial Act 1855 was issued giving notice of varying the Order dated 10 November 2021 concerning further burials in St Peter Churchyard, Blackley, Manchester. This referred to the removals of the exceptions listed in that Order and for burials to be discontinued entirely in the churchyard.

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 an MoJ Licence from the former St Richard’s Dominican Friary in the then-disused site of Pontefract General Infirmary. This resolved the issue of an unlawful burial so as to permit the interment of the human remains recovered from the site of the former Friary, and by the Deputy Chancellor granting a confirmatory faculty for the interments, Re All Saints Pontefract [2022] ECC Lee 6.

”Church seating”

Petitions seeking the replacement of pews and benches with chairs, and the associated considerations of whether the replacements should be upholstered or not, are a common theme in the consistory courts. However, in Re St Mary the Virgin Primrose Hill [2022] ECC Lon 2, the issue was the introduction into the church of 150 new upholstered chairs of mixed colours – 65 white, 65 light blue, 10 pink and 10 lavender, as shown in the photographs in the Church Times. This faculty petition had “a somewhat unfortunate history in that the works were undertaken and completed prior to any faculty being granted”, the Petitioners sought post facto permission for their introduction.

The Chancellor determined that there was no convincing need for more than one colour, but bearing in mind that the majority of the chairs were in the two muted colours of white and light blue, and had been purchased at considerable expense, he granted a faculty for the white and blue chairs to remain, but directed that the brighter-coloured chairs (10 pink and 10 lavender) should be removed from the church.

”Cautionary tales”

In Re St Cuthbert Etherley [2022] ECC Dur 5, the Petitioner sought permission to inter the cremated remains of her mother in a grave containing the remains of two members of the family, and to replace the existing worn memorial. The DAC noted “the memorial did not comply with the churchyard rules in too many areas and would not be appropriate to the churchyard setting”, and the use of the term “passed” instead of “died” did not meet judicial approval.  Iles Ch concluded:

“If I had been prepared to grant a faculty I would in any event have first required the petition to be re-advertised, because the public notice was misleading in stating that it was to be a granite base memorial rather than constructed from man-made Corian®” (“Its primary purpose appears to be for internal use as a material from which kitchen worktops are made”).

“It is unfortunate that [the Petitioner] has incurred wasted expense in having the new memorial made without seeking permission beforehand, but this demonstrates the perils of going ahead without first consulting the incumbent or the diocesan registry”.

However, he granted a faculty for the interment of the cremated remains.

And finally…

Should shortened pews be designated as ‘pewlets’ – a term referred to in an HRBA post in 2020? Not in the Consistory Court of St Edmundsbury and Ipswich. In Re St Peter Sibton [2022] ECC SEI 3, Gau Ch observed: “I note that the petitioners refer to shortened pews as ‘pewlets’. I will not” – adding the footnote:

“Indeed, if any petitioner chooses to use the word ‘pewlet’ to refer to a shortened pew in any future application, they will have an uphill task persuading me to grant their petition.”