The coroner, the diocesan chancellor, and the Thames Valley Police

In the anonymised judgment Re An Exhumation for a Forensic Post-mortem Examination [2023] ECC Oxf 2, the Thames Valley Police applied for a faculty to authorize the exhumation of the body of a person who had died a few years previously, when the cause of death had been given as “old age”. This case provides an example of the interaction between the various organizations involved and the associated legislation.

The Oxford Consistory Court considered this unopposed petition in the form of a letter dated 16 March 2023 by a Detective Inspector serving with Thames Valley Police; it was submitted after discussions between the police and the Associate Archdeacon who was aware of the unfortunate circumstances of this case [1]. “A very few years ago”, a very elderly person passed away in their home, and their general practitioner was able to certify the cause of death as “old age”. At that time, there were no suspicions relating to the death, which was therefore not referred to the local coroner. The deceased was laid to rest in a consecrated churchyard shortly thereafter [2].

Subsequently, evidence came to light which prompted concerns as to the actual cause of death, and the investigating police force now wished to exhume the deceased’s body, with a view to conducting a forensic post-mortem examination to investigate the true cause of the deceased’s death. A forensic pathologist had confirmed that this should be possible; and a Senior Crown Prosecutor had been briefed and confirmed that, should there be sufficient evidence in the case, then it would be in the public interest to seek to prosecute anyone who might have been involved in causing, or contributing to, the deceased’s death [3].

In advance of the petition, authority for the exhumation had been granted by HM Coroner who signed a direction to exhume the deceased’s body. To ensure proper planning, the police requested that the exhumation should take place between dates identified to the court [6]. In the case of a petition that relates exclusively to exhumation, the chancellor may dispense with the giving of public notice (pursuant to rule 6.6 (3) of the Faculty Jurisdiction Rules 2015, as amended) if satisfied that any near relatives of the deceased still living, and any other persons who, in the opinion of the chancellor, it is reasonable to regard as being concerned with the matter, are either (a) petitioners, or (b) consent to the proposed faculty being granted.

In the particular circumstances of the instant case, however, Hodge Ch considered that it was neither just nor expedient for the court to require special notice of this petition to be given to anyone who may be interested in the proposed exhumation since the deceased’s immediate next of kin had been identified as suspects in the investigation into the suspicious death. FJR 6.6 (4) provides that in any other case of a petition that relates exclusively to exhumation, the chancellor may dispense with the giving of public notice and may direct that any of the persons referred to in paragraph (3) who are not petitioners be given special notice.

The Chancellor considered that it was just and expedient for him both to dispense with the giving of public notice and to direct that no-one referred to in paragraph (3) need be given special notice. Alternatively, and insofar as necessary, he considered that the suspicions entertained in relation to the deceased’s next of kin constituted “other factors” which meant that it would not be expedient to require the giving of public notice of this exhumation application; he therefore dispensed with the giving of such notice under FJR 6.7. He proceeded in the absence of notice of this exhumation application to any of the deceased’s relatives, recognizing that this imposes a duty of full and frank disclosure on the applicant detective inspector of police; also that an exhumation will be intensely upsetting for the deceased’s relatives; and that this will be exacerbated by the lack of any advance warning or notice [7].

In the present case, it was necessary to determine whether, on the balance of probabilities, the facts of this particular case warranted a finding that it should be treated as an exception to the normal rule that Christian burial is final: Re Blagdon Cemetery [2002] Fam 299 at 307 A-B. Although the Court of Arches in that case considered various factors which can arise in connection with a petition for a faculty for exhumation, none of them were similar to the facts of the present case [10]. Hodge Ch indicated that he had been unable to identify any reported case where an exhumation has been sought to facilitate a forensic post-mortem into the cause of the deceased’s death. However, the court has granted orders for exhumation in aid of DNA analysis. or present purposes, the most relevant and helpful authority being the decision of Chancellor Euan Duff in Re St John’s Cemetery, Elswick [2018] ECC New 4 (in the Diocese of Newcastle).

The Chancellor indicated that the applicant had satisfied him, on the balance of probabilities, that special circumstances exist which constitute good and proper reasons for making an exception to the normal rule that Christian burial is final, viz. the need to establish, if possible, the true cause of the deceased’s death. This was necessary in justice to the deceased and in justice to the deceased’s next of kin:

“If any of them were responsible for, or contributed to, her death, then that fact should be established, and they should be brought to justice. If, on the other hand, they are innocent of any involvement in the deceased’s death, then the suspicions that have been raised in relation to them should, if possible, be dispelled” [11].

For these reasons, the court granted a faculty for the exhumation of the deceased’s human remains from their present place of burial and their transportation to the location identified to the court, where they are to be retained for a sufficient period of time to allow both for an initial post-mortem examination to take place and then, if a prosecution ensues, for the defence to request a further post-mortem examination, should they wish to do so [12].

At the earliest opportunity, the deceased’s remains are to be returned for reverent reburial in the same grave in the same churchyard. Hodge Ch directed (by way of condition) that the exhumation is to take place at a time and date to be notified in advance to the Registry and the parish church, which is not to be within two hours of the scheduled start or end time of any service or other special event (such as a marriage, baptism or burial) in the church or its churchyard, or at a time when children are likely to be arriving at, or leaving, any local school. He concluded that “the police will need to discuss with the parish church how to mitigate the effects of the exhumation on anyone visiting the grave“[12].

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Cite this article as: David Pocklington, “AN INSPECTOR CALLS – for an exhumation” in Law & Religion UK, 20 April 2023, https://lawandreligionuk.com/2023/04/20/an-inspector-calls-for-an-exhumation/