R (Rudewicz) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | The Master of the Rolls,Lord Justice Stanley Burnton,Lord Justice McFarlane |
| Judgment Date | 24 April 2012 |
| Neutral Citation | [2012] EWCA Civ 499 |
| Docket Number | Case No: C1/2011/2873 |
| Court | Court of Appeal (Civil Division) |
| Date | 24 April 2012 |
[2012] EWCA Civ 499
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION, DIVISIONAL COURT
The Rt Hon Lady Justice Hallett and the Hon Mr Justice McCombe
Claim No. CO/3422/2010
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Stanley Burnton
and
Lord Justice McFarlane
Case No: C1/2011/2873
Mr M Fordham QC and Mr G Lee (instructed by Sutovic and Hartigan) for the Appellant
Mr J Strachan (instructed by the Treasury Solicitor) for the Respondent
Written submissions were received from the First Interested Party
Mr O Hyams (instructed by Pothecary Witham Weld) for the Second Interested Party
Hearing date: 28 March 2012
This appeal is brought by Elizabeth Rudewicz with the permission of Arden LJ. The appeal is against a decision of the Divisional Court (Hallett LJ and McCombe J) given on 18 October 2011 – [2011] EWHC 3078 (Admin). By that decision the Divisional Court refused to grant judicial review of the decision of the Secretary of State for Justice to grant a licence under section 25 of the Burial Act 1857 ('the 1857 Act'). The effect of that licence was to permit the remains of Father Jarzebowski ('the Priest') to be exhumed from Fawley Court, Henley upon Thames, in order to be transferred to Fairmile Cemetery ('Fairmile'), some two miles away.
The background facts
The factual background to this appeal is very clearly and fairly set out in the judgment of Hallett LJ at [2011] EWHC 3078 (Admin), paras 1–17. In summary form, the salient facts are as follows.
Some time in the 1950s, Fawley Court, which consists of a 27 acre site with buildings, was acquired by the Marian Fathers ('the Fathers'), a Roman Catholic religious order and a charitable institution. Although the Fathers are a world-wide order, it was the Polish Province which was at all times involved with Fawley Court. The Fathers initially used the property as a school ('the school') until 1986, and then as a retreat and conference centre. A church was built on the site by a member of the Polish royal family, Prince Radziwill ('the Prince'), and he is now buried in the crypt.
The Priest founded the school and played a very prominent part in the life of the community from its inception. As Hallett LJ said at [2011] EWHC 3078 (Admin), para 1, he was 'a very special priest' who 'achieved almost saint-like status amongst many in the Roman Catholic community'. On his death in Switzerland in 1964, his body was returned to England and buried at Fawley Court. It appears that he had expressed a wish to be buried there, indeed in the particular location in which his remains are currently interred.
By 2008, Fawley Court was no longer required by the Fathers, and it was deconsecrated and sold to a company called Cherrilow Ltd ('Cherrilow').
A couple of years later, the Fathers applied to the Ministry under section 25 of the 1857 Act ('section 25') to disinter the Priest's remains and to re-inter them in Fairmile, where a number of the Fathers who died after 1964 are buried. The application was supported by the Provincial Superior of the Polish Province of the Fathers, the Superior General of the Congregation of the Fathers in Rome, and the local Bishop. The reasons given for the removal of the Priest's remains to Fairmile included (i) the fact that it will be easier for those who wish to visit his grave to do so, and (ii) his remains will thereby be together with the remains of many of his former brothers with whom he lived and worked at Fawley Court.
The application attracted significant opposition, including from Ms Rudewicz, who is the nearest living relative of the Priest, being his first cousin once removed, who was aged seven when he died. Although she never met him, she has visited his grave on a number of occasions. Around 2000 other people ('the objectors'), almost all of whom appear to be members of the Polish Roman Catholic community in England, wrote to object to the proposed disinterment, often expressing their views in strong terms. The objectors included Save Fawley Court Heritage Committee, described by Mr Fordham QC, who pursued this appeal with Mr Lee, as 'an umbrella organisation representative of almost all Polish organisations in the UK'. The Fawley Court Old Boys Association, and the Vicar Delegate, who is the sole representative of the Polish Roman Catholic Community in the UK, also objected. As Mr Fordham said, the general thrust of the objectors' case included the contentions that (i) the Priest's remains should remain undisturbed, and (ii) they should be able to visit his grave.
The Secretary of State decided to grant the application to disinter the remains of the Priest, in a decision letter dated 5 September 2011, which included the condition that the Priest be re-interred at Fairmile so that anyone who wished to visit his grave could do so. The reasons for this decision were set out in an impressively detailed schedule (which were appended to an earlier letter for reasons given at [2011] EWHC 3078 (Admin), paras 7 and 10).
The relevant factors which led the Secretary of State to arrive at this conclusion were as follows.
First, the practice of the Secretary of State in relation to applications under section 25 has always been to regard the wishes of the deceased's next of kin as very important, and, when it comes to members of religious orders, the head of the relevant order is generally regarded as the next of kin. Such an approach is reinforced in the present case by the fact that the constitution of the Fathers (as laid down in 1930) does not entitle a member, even one as exceptional as the Priest, to have enforceable views as to where he should be buried. The constitution provides that the decision as to where a member is to be buried is that of the Head of the Fathers' Order; whether one takes that person to be the Provincial Superior or the Superior General, he clearly supports the proposed disinterment.
Secondly, the removal of the Priest's remains to Fairmile would have the benefit of re-uniting him with his former brothers with whom he lived and worked. That opportunity did not exist in 1964, as the area of Fairmile in which deceased members of the Fathers who lived at Fawley Court are buried was only set aside for that purpose after 1964.
Thirdly, if the Priest remains buried at Fawley Court, there will be a problem for those who wish to visit his grave. Cherrilow has no obligation to permit access for that purpose, and its solicitors have confirmed that, if such access is to be accorded at all, it would only be on a very restricted basis (possibly once a year). And, of course, any such permission could be withdrawn at any time. If the Priest's remains were moved to Fairmile, on the other hand, access to his grave would be unimpeded (at least during the day), and it would have the advantage of being combined, for those who wished, with visiting the graves of any of his former brothers.
The Secretary of State did not ignore the countervailing factors, which he identified as (i) the Priest's wish to be buried at Fawley Court, (ii) the stress which would be caused to many members of the Polish community by the Priest's disinterment, (iii) the possible feeling of 'disrespect' that his decision might be seen as signalling to the Polish 'heritage', and (iv) the objections of the Priest's nearest living relative. Nonetheless, the Secretary of State decided to grant the application.
That led Ms Rudewicz, with the support of Save Fawley Court Committee (who have made written submissions to this court in support of the appeal), to apply for judicial review of the decision. In full and clear judgments, Hallett LJ and McCombe J decided to reject the application. Ms Rudewicz now appeals to this court.
The applicable law
It was a common law indictable offence to disinter a dead body without lawful authority, however laudable the reason, or, it would appear, however unintentional the disinterment – see e.g. R v Lynn (1788) 2 TR 733.
Statute in the form of the 1857 Act then intervened. Section 25 provides, so far as relevant (with sub-paragraphs added for convenience):
'(i) Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose,
(ii) it shall not be lawful to remove any body, or the remains of any body, … without licence under the hand of [a Secretary of State], and with such precautions as such Secretary of State may prescribe as the condition of such licence;
(iii) and any person who shall remove any such body or remains, contrary to this enactment, … shall on summary conviction … [pay a fine on the appropriate prescribed scale]
In these circumstances, it will be appreciated that the licence granted by the Secretary of State in this case was granted pursuant to what I have referred to as section 25(ii).
Apart from this statutory provision, there is, as is referred to in what I have called section 25(i), the power of a consistory court to grant a faculty for the exhumation of remains where they are interred in consecrated ground of the Anglican church. Perhaps the leading modern authority on that jurisdiction is the decision of the Arches Court of Canterbury (on appeal from Briden Ch) in In re Blagdon Cemetery [2002] Fam 299. However, as section 25(i) makes clear, it is only where the purpose of the disinterment is to remove the remains from one Anglican consecrated site to another that section 25(ii) does not apply.
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