Workshop: Licences for disinterment of human remains

It is a sobering thought that the final resting place of a corpse may come ?to be considered by the Administrative Court, bringing into sharp focus the ?conflict between proprietary rights and ?raw emotion.

In R (HM Coroner for the Eastern District of London) v Secretary of State for Justice & Sutovic [2009] EWHC 1974 (Admin), a coroner sought to challenge a decision of the Secretary of State not to re-issue a licence under section 25 of the Burial Act 1857 for the exhumation of the body, after the High Court had determined that there should be a second inquest. The coroner was unable to rely on section 23 of the Coroners Act 1988 to order the exhumation, because the body was not buried within ?her district.

The reason for refusal was that the relatives of the deceased objected, and the deceased's mother had proprietary rights in the grave and headstone which the Secretary of State had no power to override. In addition, the burial was in a municipal cemetery, within a Church of England consecrated area.

Thus, even if a licence were granted, no exhumation would be possible without the authorisation of the Chancellor of the Diocese. The case law of the ecclesiastical courts provides that this jurisdiction would be sparingly exercised, mindful of the Anglican doctrine of the permanence of Christian burial (see Re Blagdon Cemetery [2002] Fam 299). The proceedings were dismissed since the coroner failed to demonstrate Wednesbury unreasonableness on the part of the Secretary of State.

The statutory discretion was revisited by the Court of Appeal in R (Rudewicz) v Secretary of State for Justice [2012] EWCA Civ 499. This case concerned Fawley Court, which had been run as a school by the Polish province of a Roman Catholic religious order, but which had been sold for development. The Secretary of State granted a licence for the exhumation of the remains of the school's founder. His remains would be reburied in a local cemetery alongside those of other priests who had worked at the school, whereas the public would be unable to visit the grave at Fawley Court.

The Court of Appeal rejected the arguments that the Secretary of State had acted irrationally or in breach of the ECHR.

It could see no reason why a licence ?should be hard to obtain simply because, in its absence, disturbance of human remains would be a criminal offence. Similarly, the theology of burial is irrelevant to the exercise of a secular discretion, even if it could be extrapolated from the law of the Church of England to the praxis of ?a Roman Catholic order.

The court rejected the criticisms made of the Secretary of State. The sensibilities of the objectors had been considered, but so had the viewpoint of the Provincial Superior, the Superior General and the local bishop who all supported the removal.

Lord Neuberger MR remarked that although the exhumation may offend the religious feelings of a distant relative of ?the priest and other objectors, it would?not affect their right to hold or to manifest their religious beliefs. This approach ?found favour in the European Court of Human Rights in Eweida and Ors v ?United Kingdom.