Re Churchyard of All Saints, Pontefract
| Jurisdiction | England & Wales |
| Year | 2022 |
| Court | Consistory Court |
2022 Oct 28
Ecclesiastical law - Faculty - Burial ground - Human remains lawfully exhumed from archeological site - Human remains unlawfully reburied in nearby closed burial ground - Petitioner seeking confirmatory faculty to authorise reburial - Whether faculty to issue -
In the course of archaeological excavations at the site of a 14th century Dominican friary, human remains dated to the late 14th century were exhumed pursuant to a licence issued by the Secretary of State for Justice. It was a condition of the licence that the remains be reburied in a burial ground where interments might legally take place. On 27 March 2015, with the apparent permission of the then incumbent, the human remains were reburied in a nearby churchyard which had been closed to burials by Order in Council in 1857. The petitioner, the current incumbent, now sought a confirmatory faculty to authorise the reburial, doubts having arisen as to its legality. At the time of the petition the original Order in Council did not make provision for future burials but a petition was later made to the Crown to vary the Order in Council so as to permit burial of the remains in the churchyard, which was granted on 12 October 2022.
On the petition—
Held, granting a confirmatory faculty, (1) that as section 3 of the Burial Act 1853 made clear, burial of “the dead” in a closed churchyard was unlawful; that “the dead” meant those who had died, whether recently or many centuries ago; that a faculty was ineffective and ought not to be issued where the proposal for which permission was sought was contrary to English law; that if a faculty, sought prospectively, could not have been granted as a matter of law, then nor could a confirmatory faculty; that the circumstances in which, exceptionally, an interment might take place in a churchyard which had been closed by Order in Council were: (i) where the original Order in Council made provision for future burials notwithstanding the closure, (ii) where the Privy Council varied an Order in Council either to allow a particular burial or class of burials, (iii) where human remains that had been disturbed were reburied in the same cemetery and (iv) where a faculty was granted pursuant to section 88 of the Ecclesiastical Jurisdiction and Care of Churches Measure 2018 to permit the burial of cremated remains in a closed church; and that, since none of the four exceptions had applied at the time of the present petition, the reinterment had been unlawful and, but for the recent amendment to the Order in Council, the petition for a confirmatory faculty would have had to be dismissed (post, paras 4, 22, 23, 24, 25, 26).
(2) That although any application for a faculty for exhumation would almost certainly have been granted because the burial in 2015 had been conducted owing to a mistaken belief that the burial was permitted in law, in light of the amendment to the Order in Council such a course was not necessary; that while the amendment to the Order in Council was not retrospective so that it was not possible to grant a retrospective faculty, given that it would seem ludicrous just for form’s sake to require exhumation and then immediate reburial of the remains and that such a course would be contrary to the principles of permanence of Christian burial, a confirmatory faculty for the reburial of the human remains would be granted; and that the court would direct that the church burials register and log book be endorsed that the human remains had been unlawfully buried on 27 March 2015, but that illegality had been corrected by a variation of the Order in Council closing the churchyard to permit burial of the human remains and by a confirmatory faculty (post, paras 27, 28, 29).
Per curiam. The apparent breach of the condition in the exhumation licence is a matter for the Secretary of State and not the consistory court and the investigation and prosecution of criminal activity under section 3 of the 1853 Act is a matter for the relevant police force and Crown Prosecution Service. They are not matters upon which the court should express a view (post, para 26).
Quaere. Whether a skeleton is “a body” for the purposes of section 3 of the 1853 Act so as to make its burial in a closed churchyard a criminal offence (post, para 23).
The following cases are referred to in the judgment:
Blagdon Cemetery, In re [
Churchyard of Christ Church, Spitalfields, In re [
St Mary and the Holy Rood, Donington, In re [
St Mary’s, Barnes, In re [
St Michael and All Angels, Tettenhall Regis, In re[
R (HM Coroner for Eastern District of London) v Secretary of State for Justice
Seaton Delaval Churchyard, In re (
Spitalfields Open Space Ltd v Governing Body of Christ Church Primary School [
PETITION
The petitioner, the Reverend Canon June Lawson, sought a confirmatory faculty in respect of the reburial of certain human remains which had been unearthed during archaeological excavations under a licence issued in the name of the Secretary of State for Justice, pursuant to section 25 of the Burial Act 1857, and unlawfully reburied on 27 March 2015 in the nearby churchyard of All Saints, Pontefract in the diocese of Leeds, which had been closed by Order in Council in 1857. The burial did not appear in the record of burials for the church nor upon the burial plan and the petitioner had only become aware of the reburial in January 2022 when she received a letter from the finds officer of the additional party, the Pontefract and District Archaeological Society, seeking permission to install a stone plaque to commemorate the reburial.
The petitioner and the additional party agreed to the matter being dealt with by written representations under rule 14 of the Faculty Jurisdiction Rules 2015 (SI 2015/1568) without a hearing in court.
The facts are stated in the judgment, post, paras 6–19.
28 October 2022. GLYN SAMUEL DEP CH handed down the following judgment.
1 This case concerns the extent to which burials may take place in a churchyard that has been closed by Order in Council. It is hoped it will prove useful for those who have the care and control of such closed churchyards, as well as for those to whom the state entrusts the weighty obligation of securing the lawful reburial of human remains that have been exhumed for scientific research or other purpose. 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, who is regrettably unavailable to make judgment on this matter.
2 In this matter the incumbent of All Saints and St Giles with St Mary, Pontefract, has sought assistance with a troubling situation that arose before she was collated as incumbent (in February 2019). Her written inquiry has been deemed to amount to a petition seeking a confirmatory faculty in respect of a burial in 2015 of certain human remains which were unearthed during archaeological excavations nearby. The burial in question does not even appear in the record of burials for the church nor upon the burial plan. Canon Lawson only became aware of the reinterment in January 2022 when she received a letter from Dr Janet McNaught seeking permission to install a stone plaque to commemorate the reinterment. The plaque has already been carved—which it should not have been without consulting the incumbent about wording—and reads as follows: “Near This Place Lie the mortal remains of our forebears, excavated from St Richards Dominican Friary in 2011 Originally laid to rest in the early 14th Century” (sic). Canon June Lawson promptly made inquiries and sought assistance from the diocesan registry. (I should add that the Pontefract and District Archaeological Society (hereafter “PDAS”) have thus far declined to formally seek a faculty for installation of the memorial stone, so the chancellor has deemed that no such permission is being sought in these proceedings—it is of note that the inscription appears to be inaccurate in any event as the original date of burial of the bodies seems to have been in the late 14th century not the early 14th century.)
3 The principal complication of this case is that the churchyard in question, at All Saints, Pontefract, was closed for burials by Order in Council a long time prior to this burial, in fact as long ago as 1857. A deacon of the church (since deceased) allegedly volunteered that the human remains could be buried in the closed churchyard, and also participated in a service of reinterment, apparently conducted by or at least involving a significant contribution from a Roman Catholic priest from a nearby church. That is not as surprising as it may seem for the human remains are likely of 14th century residents of a former Dominican friary which lay beneath the area excavated. (Also it is averred that All Saints Church was built upon the remains of a Norman priory church, which was why its churchyard was considered particularly suitable.) It appears that the deacon did not discuss the interment of these human remains with the then incumbent. There is no evidence...
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