The Law Regarding Exhumation of Human Remains
Under Section 25 of the Burial Act 1857 it is unlawful and therefore a criminal offence to remove any body or the remains of any body without licence of the Secretary of State except in the cases where a body is removed from one consecrated place of burial to another by the Church.
In accordance with the Burial Act above, where land is not consecrated an application must be made to the Ministry of Justice for a licence for the removal of the remains (buried or cremated). Usually a decision will be made by the Ministry of Justice within 20 days of receipt however an application can be marked urgent with good reason.
As touched upon above, if the remains are being removed from one consecrated plot to another plot also consecrated, the appropriate authority is a formal decision from the head of the local church (the Chancellor of the Diocese) and not a Licence from the Ministry of Justice. In addition if remains are being removed from a consecrated plot be reinterred into the same plot or secondly removed from a consecrated plot to an unconsecrated plot, a formal decision from the Chancellor and a Licence from the Ministry of Justice are required.
A petition is made by the party who seeks an exhumation of remains to the Chancellor to authorise the grant of a formal decision enabling the exhumation of the remains (“the Petitioner”). Before a formal decision is considered and potentially granted, a Public Notice is published for a period of 28 days in the local Parish concerned, usually on a notice board outside the church. Anyone having a lawful interest in the proposed exhumation may give Notice of Objection to the Chancellor’s Registrar (the Registrar). The persons entitled to give Notice of Objections are:
- Any person resident in the parish concerned or whose name is enrolled in the electoral roll of the parish but who does not reside in the parish;
- The Archdeacon of the Archdeaconry in which the parish is situated;
- The Parochial Church Council;
- The local planning authority for the area in which the parish is situated;
- Any statutory amenity society;
- Any other body designated by the Chancellor for the purpose of the Petition; and any other person appearing to the Chancellor to have a sufficient interest in the subject matter of the petition.
Once Letter of Objections has been received and the 28 day Notice Period has elapsed, the Registrar will inform the Objector that they may:
- Leave the Chancellor to take the Letter of Objection into account only; or
- Formally join as a party to the proceedings by writing Particulars of Objection. A Chancellor is able to include the Objector in any costs order that he makes as a consequence of an Objector joining as a party to the proceedings.
The Petitioner will have an opportunity to response to the Objection within 14 days of the Objection being received.
Directions and the Hearing
Prior to the hearing of the Petition, the Chancellor may give directions to the parties in relation to discovery of documents, the number of expert witnesses to be called by either party, exchange of reports of expert witnesses and any other matter which the Chancellor considers will facilitate the hearing of the case.
The hearing date is set by the Chancellor. The Registrar will give the parties notice of the hearing but will also notify the Archdeacon. The hearing is usually held in the church concerned.
Evidence and the Judge’s Witness
Evidence is usually given orally at the hearing. However, the Chancellor may, on the application of a Party, direct that all or part of any evidence is given before an examiner appointed by him or by affidavit; or that a written statement of evidence is given without attendance of the maker of the statement. Despite an application being made, the Chancellor may order for the maker of any written statements to attend court for cross examination.
The Chancellor may order for the attendance at the hearing of a member of the Diocesan Advisory Committee, the Council for the Care of Churches or any other person to give evidence at the hearing if it appears that the person may be able to give relevant evidence. When a person is called, the Registrar will give to the parties no less than 14 days’ notice in writing that the evidence is to be given and the details of the person giving the evidence. This person shall be subject to cross-examination by the parties to the proceedings and the person may be permitted to ask questions of the parties with the leave of the Chancellor.
Disposal of Proceedings and Withdrawal of Proceedings
The Chancellor may at any stage revoke the order that the proceedings shall be dealt with by written representations and direct that they shall be determined at an oral hearing. The Chancellor will therefore give directions for the future conduct of the proceedings.
Similarly to any court, the Petitioner can withdraw their Petition and the Objectors can withdraw from proceedings however may not be allowed to withdraw at a late stage in proceedings, in light of the costs implications.
After the Chancellor has given his judgment, the Registrar will issue the formal decision and in any event will send to the parties copies of any written judgment and order given by the Chancellor.
There are two types of costs in these proceedings:
- Costs incurred by the parties; and
- Fees of the Registrar and the Chancellor for their work and expenses.
Often the Chancellor makes no order as to parties costs (a), the Petitioner will be required to pay their own witness costs and costs of representations, and the Objector will have to pay their costs of representations and witness costs. Expenses of the court will usually be paid by the Petitioner (b) however where this category of work has been increased by an objection which has not been upheld, the court may order the Objector to pay the costs.
The Chancellor has a complete discretion as to costs and may order either party to pay the other party’s costs. The Objector could be ordered to pay the Petitioners costs if they are frivolous or vexation. If the Objector were unsuccessful but not altogether unreasonable, the Chancellor might still order the Objectors to pay or contribute towards the Petitioners costs and would normally require the Objectors to pay at least part of the court fees. If the Petitioners were unsuccessful, the Chancellor would usually order for them to pay the costs of the successful objector as well and the court fees and expenses.
If the dispute has been caused by a third party, the Chancellor may order the third party to pay the costs.
Either party may immediately before the conclusion of a hearing make representations to the Chancellor about how costs should be dealt with.
The Chancellor values the parties trying to reach an agreement and alternative dispute resolution is promoted in all cases.
The procedure for dealing with these types of case is timely, difficult and emotional.