Posted by John Bradfield
ED’s note: John Bradfield, founder of the Alice Barker Trust and author of the groundbreaking Green Burial, the DIY Guide, campaigns, together with Teresa Evans, for the legal rights of the bereaved. Here he argues that Richard III was illegally exhumed. He presents this argument in the context of his and Teresa’s wider campaign against the destruction of countless graves permitted by the granting of what they argue are legally invalid exhumation licences.
Response to information displayed on the Law & Religion website here.
David Pocklinton’s perspective on exhumation law is a very familiar one. I would like to present another.
David gives the impression, that an exhumation licence must be obtained in all circumstances, unless some other aspect of statute law applies, or a Church of England permission known as a faculty is necessary. The latter only applies to land which has been and remains, legally consecrated by the Church of England. There is also the power of a coroner to exhume but only under statute law and only for the purpose of investigating the cause of one or more deaths.
David’s perspective is both right and wrong. It is correct in that there are different sorts of permissions, depending upon the circumstances. It is wrong, in the sense that there are some properties, for which no permissions can be issued. That is so, unless it is possible to obtain a common law consent to exhume – presumably from a court. I have never found evidence of such a consent, from any time in the past.
When no statute law applies but exhumations still go ahead, they are illegal under common law and there is no time limit in which to prosecute. I submit, that on the basis of the limited information available about the land in which Richard III was buried, his exhumation must have been illegal, because the licence was unlawful and therefore invalid. If that is so, then his remains were illegally obtained by the archaeologists and they cannot have lawful “custody and possession of (his) remains”.
This crucial element of the legal picture was not put to the judicial review in the case of Elzbieta Rudewicz. It was presented to the Court of Appeal in a written witness statement but not discussed, analysed or pronounced upon. It was submitted by the Alice Barker Trust to the UK Supreme Court but there is no evidence of it having been considered or analysed.
I also submit that a judicial review could do more than consider questions of administration law, in terms of how the Ministry of Justice arrives at decisions to issue exhumation licences. A judicial review would, given a fuller and more accurate picture of law, start at the beginning and work forward. Then, the first question for a judicial review must be, “Is it possible to issue a lawfully valid exhumation licence for the type of property in question?”
As that question has never been considered by any court in the case of Elzbieta Rudewicz, a further appeal should be granted but is that still possible?
A complaint needs to be lodged with the UK Supreme Court. To that end, those involved would appreciate any pro bono help, in having the true legal position examined with greater precision by the courts. That is necessary in the national interest, because the case of Elzbieta Rudewicz contradicts long established case law, which was not considered, amended or overturned. The outcome thus far is so confused, that contradictory decisions on legal matters may all be valid or invalid, as no-one could be sure one way or the other.
One answer is for the police to pursue a common law prosecution over the exhumation of Richard III. He would then have the legacy of having served the national interest after death, by having stopped the outrageous and illegal destruction of graves created within living memory, despite protests from bereaved friends and relatives. Such a prosecution would finally stop civil servants issuing other legally invalid exhumation licences.
The police are unlikely to intervene, not least as the government negligently or unwittingly condones and even encourages some forms of criminality, through decisions taken by public services. They confidently act in the knowledge that they do so with total impunity and that is unlikely to change.
The provision of invalid exhumation licences, has resulted in the criminal destruction of graves and gravestones over decades. Since its inception in 1948, the NHS has never put a stop to the criminal detention of bodies in hospitals, after bereaved relatives and others have attempted to arrange collections.
What’s wrong with dying? Part of the answer is that decision makers are not asking the right questions. Is there a Parliamentary Select Committee which could and should examine these and related issues around death and bereavement?
For more details on exhumation law, see the Moonfruit website provided on behalf of the Alice Barker Trust here.
John Bradfield.
Writer on bereavement law.
At least King Richard 111 is going to a better place in a tomb fit for a King in Leicester cathedral rather than a cramped grave under a car park.
I agree Colin. Whether or not this exhumation was legal, Richard III’s tomb was destroyed and forgotten half a millenia ago, even if his remains remained in tact. Had this not been the case, they wouldn’t have tarmaced over his resting place in the 20th cnetury to build a car park.
Intriguingly, Richard lay under a car park stall marked ‘R’ (for ‘Reserved’). ‘I know how mad this sounds,’ says dig organiser and writer Philippa Langley. ‘But I had the strongest sensation I was walking on Richard’s grave.’
Thank you Richard. I live in Leicester and the prospect of the body of Richard 111 being laid to rest in the cathedral is exciting not only local people but many around the world. It cannot be right for the last English king to be left under the car park. If you are interested in reading a book about Richard 111, “The Daughter of Time” by Josephine Tey is good.
My vote goes to Worksop Priory, the heart of his kingdom in Sherwood Forest. Leicester already has lots of famous bones. Let’s be democratic and give the humble people of Worksop something to be proud of.
Thanks for the book tip, Colin. I’m interested in this subject. Before Leicester Cathedral beat rival York Minster for the tourist-attracting prize of the remains of Richard III, I’m afraid I was in the York camp. Sorry! I can’t help thinking the Plantagenet king, killed aged 32 during the Battle of Bosworth near Leicester by the army of Henry Tudor, would have preferred his final resting place to be in his beloved York. Leicester’s only claim to Richard of York is that, after Bosworth, his body was rushed by monks, the Red Cross of the Middle Ages, to the nearby… Read more »
Worksop is halfway between York and Leicester and, therefore, the best possible compromise. Does the Chapter speak for the people? Have they been bought?
Leicester is half way been York and Westminster, the two places where Richard divided his time. 🙂
That is a setback, Richard. Give me time to rally.
While I await your reply…. I’m faconated by the picture with John’s piece. I hadn’t seen it and didn’t know Richard’s spine was so curved. Amazing how he fought in battle. The technology used to identify the king greatly added to the story’s interest. DNA tests on the bones, which dated to the late 15th century, were matched to descendants on the female line, 17 generations later. The bone structure was also found to be consistent with a man who ate a lot of animal protein, support the man spent a lot of time at court. He also clearly died… Read more »
Hi, Richard,
Can I add my own recomendation for ‘The Daughter of Time’…an excellent book! My own gut feeling is also for York…partially because of where I live, and partially because of his own, known wishes. However, I thought I had heard that York Minster has specifically said that they don’t want him? So that’s that, then!
Worksop, York, Leicester – we have forgotten to mention Westminster. Should Richard not be buried alongside 17 other monarchs in Westminster Abbey. “The bones of the last British monarch to die in battle surely should be treated with dignity and venerated properly, as a former head of State would be,
You have a point, Colin. But even though I’m a Londoner, I think Westminster Cathedral has quite enough celebrity bones. I believe Worksop’s claim is that it’s the nearest place with a friary still belonging to the same monastic order that saw Richard right in Leicester. But the friars don’t own him. Neither does his DNA blood line it seems. The law decreed that Leicester University does, finders keepers. But the heart says York.
PS Westminster Abbey, not Cathedral!
To be pedantic, the archaeologists have been given temporary possession of the bones. There is no property in a dead body.
The same logic which causes you to reject Westminster Abbey also rules out Leicester. On the share-around principle, Worksop is in pole position.
It is an interesting skeleton. It irreverently reminds me of PG Wodehouse’s description of a slippery character: “He could disguise himself at will behind a spiral staircase.” But I didn’t say that.
Fair point, Charles, but the logic of my main conclusion is based on what Richard would have wanted. There’s evidence that York Minster was his choice while alive.
I’m a little concerned that we could be sliding towards civil war over this matter. Can Worksop manage to raise a militia in time? Will the ecclesiastical power of York triumph in a late intervention? (Never underestimate the worldly power of a late medieval archbishop.) But Leicester, a historical outsider, has pulled off a stunning coup here. Well done, me duck! He’s yours. Put your Crozier aside, Richard; citizen Cowling, stand down. Now is the winter…….son of Leicester!
H’mmmm. Not quite right, is it?
Just harking back to the original article – is John seriously suggesting that we legally establish a ‘final resting place’ that is forever inviolate? Are we then negligent for promoting natural burial and rapid decomposition? Are we to keep the preserved dead close to us forever? Or have I misinterpreted?
I really can’t square the circle around this and any form of sustainable burial option. Looks like it’s off to the incinerator then.
Ian Quance asks whether all graves should have legal protection. When the selling of perpetual burial rights was outlawed in public burial places in the 1960s and 1970s, that laid the legal foundation for graves in those settings to be kept in active use in the centuries to come. Burial rights are only sold for up to 100 years but often the time is shorter. If you need proof and have someone buried in such a place, look at the small print. If the burial rights are not renewed when they expire, the graves will be used again, if and… Read more »
Dear John, It’s great to hear your voice here. I’ve been a fan of your work since Ken West (a valued mentor) mentioned you to me years ago, when I came to the UK from the States to learn how to best inspire natural burial practices over here. I’ve not been able to get access to all your writing on the topic and would like to do so, but that’s for another email. In the meantime, I’m going to add a follow-up to Ian’s questions, as I’m not sure I understand your answer in relation to it. Bear with me;… Read more »
Richard’s remains belong in York, The fact is that The University of Leicester has been ignoring the wishes of Richard’s Relatives, Myself among them. (Richard is my 18th Maternal Uncle) and ignoring the wishes of the King himself. His biggest disgrace was at Leicester where after he was killed at The Battle of Bosworth he was dragged there on horseback naked and buried in a unfit grave which was not only too small for his body but undignified for his rank and station. I do not only see Richard as a King of England, I see him as a man… Read more »
Billijo, thank you for this contribution to the debate. I must say, I think Leicester a wretched destination for his mortal remains.