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 Grayfriars monastery in Leicester, where he was buried in an unmarked grave to avoid grave robbers. Even then there was Tudor propaganda that Henry was using his foe’s stone tomb as a trough to feed his horses.
However, I now accept Leicester’s right to keep the remains. The move home after over 500 years would have been too politically fraught, and rather than prolong an unseemly row over royal bones, those nice people of York Minster conceded: ‘The Chapter of York commends Richard to Leicester’s care and to the cathedral community’s prayers.’
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 of battle wounds and had a curved spine for which Richard ‘Crookback’ was famous.
However, there’s no radiocarbon dating for the soul. We still don’t know for sure if he was a man much maligned by Shakespeare’s Tudor propaganda or if he was indeed a murderous usurper, a man capable of ordering the deaths of young princes who stood between him and the throne.
The latest news about Richard’s facial reconstruction based on the shape of his skull is also gripping. Apparently, this job was assigned to a team at Dundee University who were deliberately not told whose face they were working on, lest they be influenced by portraits. They were not given the physical skull but only CGI images from which to base a 3D model. Once their bald, colourless replica was enhanced by a wig emulating the distinctive hair style of the king, the likeness to portraits was uncanny, distinctively protruding Plantagenet chin and all.
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 when the final touches to the legislation are introduced. Thus, the majority of graves will never have permanent protection. That is appropriate for those who prefer temporary graves. I researched the law to create permanent graves in permanent nature reserves, so another option would be available.
The illegal exhumation of Richard III, raises a very different question. It is best illustrated by what happened in 1993, in a former Methodist burial ground in Halifax.
Local people were visiting graves created within living memory. They owned:-(1) the burial rights in those graves; (2) the right to decide who could and could not be buried in the spaces still available; (3) the right to prevent exhumations; (4) the property in the gravestones; (5) the right to retain the gravestones in the same locations. However, despite local protests, civil servants in the Home Office issued a builder with a legally invalid exhumation licence, to destroy all the graves. “Legally invalid” comes from crystal clear and long established legal precedents which have never been overturned. Civil servants should have known, that one case was about a former Methodist burial ground. Even a valid exhumation licence does not override the ownership of the five purchased rights listed above. Consequently, the exhumations which took place were illegal under common law, which has no limit on the maximum fine or term of imprisonment. In addition, what happened was theft and criminal damage, quite apart from the outrageous distress caused to bereaved friends and relatives. TV., Radio 4 and in newspapers reported, that many bodies were dug out of the ground with a JCB and taken to a nearby communal pit.
A judge in the County Court refused to consider a small claim for the destruction of one gravestone. He insisted that an expensive court case would be required, to convince him or another judge, that the law was and remained clear cut about:- (a) who owned what; (b) the assertion that those rights could not be overridden even with a valid exhumation licence; (c) that the licence was invalid and should never have been issued.
Needless to say, civil servants kept their heads down and if they had been right, they would not have hesitated in producing the evidence for bereaved relatives and the news media.
If vandals had pushed over one or more gravestones, the police would have been quick to bounce the culprits into court. When all graves are destroyed and gravestones smashed with nothing more than an invalid exhumation licence, the most we can hope for at present, is that the police will be bemused. Their inaction was and will continue to be based on the understandable assumption that civil servants are experts in their own fields and must know what they are doing, when deciding to issue exhumation licences. That is true if they understand the law and if they do understand, then they were wilfully defying decisions taken by parliament and the courts. To put it more crudely, because this happens all the time, (e.g. Halifax, Father Jazebowski in the case of Elzbieta Rudewicz -v- Secretary of State for Justice in 2012 followed by Richard III), it can be predicted with confidence, that the police will not question the status quo however legally cruel, outrageous and ludicrous that may be. Individual officers will be keen to avoid anything which looks too complicated and time consuming. They need straightforward matters to minimise their workloads. That is true even with serious case such as the destruction of graves with the collusion of civil servants and also the criminal detention of bodies in NHS hospitals, when relatives attempt to collect them. Coincidentally, the current law on the collection of bodies, is clear from the time when a Halifax jailer was publicly prosecuted and found guilty for refusing to release a body.
For about 150 years from 1857, the Home Office had been responsible for deciding whether or not to issue exhumation licences. Responsibility is now with the Ministry of Justice. According to archaeologists, “Lawyers acting for the MoJ decided that the 1857 Act did not in fact give the government the powers to grant licences for the excavation of human remains, and thus it was neither possible nor necessary to issue licences where the remains were not buried in extant burial grounds”, (‘Resolving the Human Remains Crisis in British Archaeology’ by Prof. Mike Parker Pearson et al. According to a librarian in the UCL the article is likely to have submitted for publication in September 2011).
I suspect that there is a difference in that quote, between what is said and meant. I am sure they did not mean that the government does not have the power to issue exhumation licences. My translation based on my knowledge of law is as follows:-
“Lawyers acting for the Ministry of Justice decided that the Burial Act 1857 did not in fact give the government the power to grant exhumation licences for the excavation of human remains from places which are no longer kept or managed as burial grounds or former burial grounds and thus it was never possible and is not possible now, to issue licences for such places”.
On the basis of clear legal precedents, I had been repeating and repeating that information over the last 20 years, first to the Home Office and then the Ministry of Justice. Teresa Evans added her weight to this in a detailed and substantive report to the Ministry of Justice in February 2012. The two of us and the lawyers for the Ministry of Justice had made clear, that it had never been possible to issue valid licences for graves in such places. The Ministry of Justice accepted the advice of its lawyers but was then persuaded that archaeologists would have no legal protection, when exhuming outside active burial grounds. The Ministry then took the decision to revert to following in the unlawful (ultra vires) footsteps of the Home Office, by continuing to issue licences in legally invalid circumstances. That needs some explanation, when the lawyers for the Ministry of Justice had said that was not legally possible. What is legally impossible cannot be made possible, even by civil servants and Chris Grayling the Secretary of State for Justice.
There can be no excuses, when civil servants persistently, knowingly and wilfully break the law, by defying decisions of parliament and the courts. In effect, civil servants have decided, that it is not a priority of the present government to have intelligible laws for archaeological exhumations and what can and cannot be done with human remains. If true, they are telling us that the government knows the law has been broken continuously since the first legal precedent from 1867 and that a few more decades of law breaking is perfectly acceptable. That means, they are also implying that the continuation of the illegal destruction of graves created within living memory, is also acceptable to the present coalition government.
Civil servants can only be stopped with a court order, forcing them to comply with the laws for which they are responsible. A breach of such an order would be a criminal offence. As archaeologists cannot be protected from prosecutions by being given legally invalid exhumation licences, the police could descend on archaeological sites at any time and prosecute under common law. Would-be martyrs such as Tony Robinson (Baldrick from Black Adder) should be queuing up to be prosecuted, to force parliament to rush through emergency legislation.
If any amount of law breaking really is acceptable to the coalition government, as civil servants in the Ministry of Justice would seem to have us believe, then everyone should be able to break any law with total impunity. That message is all the more clear, as it is coming from the Secretary of State for Justice, who is responsible for the courts. That responsibility may cause some to suspect, that civil servants in the Ministry of Justice can manipulate the legal system, albeit unlawfully, for administrative and/or political convenience. The law prevents politicians from acting in ways which could generate such suspicions but what, if anything, will be done about civil servants in the Ministry of Justice?
The prosecution of someone attempting to rely on a legally invalid exhumation licence, should be welcomed by archaeologists, to get without further delay, the new law which they consider necessary. Right now, it looks as though they dare not push this aspect of the subject, as it would bring an abrupt halt to all excavations where human remains are found, outside active burial grounds. That is so, unless they can prove with a legal test case, that it is lawful to exhume from those graves, which only have the protection of common law. That would meaning having to overturn extant legal precedents.
In summary, the modern legacy of Richard III should not be an illegal one, which perpetuates the destruction of graves created within living memory. His name could be used to end the illegal destruction of graves, caused primarily by civil servants who are continually defying decisions of parliament and the courts. Ministers may or may not be aware of this issue but they need to be told and need to take decisive action, unless they believe the law is whatever civil servants want it to be on any subject. The police and Crown Prosecution Service need to recognise that it is in the national interest to prosecute anyone using a legally invalid exhumation licence. If an archaeologist won’t step forward to invite prosecution, I will do so, if invited to an archaeological dig for that express purpose. Other than in very extreme circumstances, we must be able to guarantee the protection of all graves created within living memory. Anything else has to be abhorrent to any society which can justly claim to be civilised.
The Ministry of Justice must be held to its own words from June 2007, as displayed on the British Archaeology Jobs & Resources website. It said, “we cannot continue with our old approach”.
Note. I am grateful to Teresa Evans for having turned up relevant archaeological information.
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; I’m a Yank – my folks left the UK islands starting in the 1620’s+ and your history’s a bit fuzzy (but very interesting!) to me.
I do follow the archaeologists’ issues somewhat, and am sensitive to them – we have very similar native-remains issues here in the States. But if I keep my natural burialist’s hat on I see a bit of conflict between the positions –
1) permanent placement of remains (and the perpetual memorials/maintenance obligations that go with them) made inviolate by statute, and
2) the desire of cemeteries to recycle idle or expired burial rights and
3) the desire of citizens who do not wish to have perpetual rights enacted nor enforced on their behalf, either now or in the future – the precise motivation for much of the natural burial I currently encounter.
I may be misunderstanding the Halifax case somewhat as I’m unclear on the meaning of “within living memory” as you use it, and it seems as if that’s a legal parameter here? From your story, I assumed you meant that the grave rights of the Halifax family were still extant, non-expired, fully paid up, and that therefore the breach of contract is clear because the authority to exhume was made in violation of an existing contract.
However, when I saw that you said that King Richard was covered by “within living memory”, I realized it may mean that literally – that the contracts may have expired but that people were simply still visiting the cemetery – and was confused on the specifics.
(and it’s also unclear to me if your law means that the person themselves needs to be within memory, or if it’s the GRAVESITE that is required to be within living memory, something I suppose could make a difference in King Richard’s case. I’m not sure how archaeologists would fare under either of those rules, since they’re often finding unknown people in fields, both of which have passed from living memory)
You said:
“I researched the law to create permanent graves in permanent nature reserves, so another option [to temporary graves] would be available.”
I always thought this was a clever application of your exhumation law, with respect to giving standing trees ‘standing’ before the courts by the simple act of ‘occupying the soil’ and without having to encumber the tree-preserving action with the costs and hassles of a charitable organization’s management time, fees, and human vagaries. i.e., bury body, tree/land saved. (more on this in part 2…!)
If I’m understanding you right, with respect to Ian’s and my curiosity about cemetery graves and grave re-use, you’re pointing out that those who wish for temporary graves in cemeteries and natural burial grounds have every right to have them; that current law says that rights controlling the use of land on which one is buried only go for a limited term; and those things are spelled out in the contract and thus transparent to all parties, and so not a problem.
However, under your current law, does the ‘permanent interment’ also mean that cemeteries and natural burial grounds – once they are not actively run as cemeteries, whatever that definition might be, or when they end their intake of new burials, or when they close as cemeteries and transition to nature preserves, in the case of NBGs (not sure which one, or if all, apply) – that fall out of the ‘active’ classification default to the ‘permanent interment’ status and thus can’t be used for other purposes, no matter how benign?
And is it also the case that as long as the NBG/woodland resides in the “living memory” of someone as a place of burial, then its permanent status is presumed permanent?
If that’s the case, I can see some thorns ahead.
PART 2 comes after I get clear on the above as I don’t want to ramble in the brambles with my facts upside down…
Thanks!
Cynthia
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 who gave his life defending his country, which should count for something. I also believe that it is because of Richard’s unfair and unjust reputation that Leicester even still has the King’s remains. If it was William The Conqueror who was discovered in a car park, we would not even be having this conversation. His remains would have been long taken from Leicester and interned probably at Westminster Abby or at least St George Chapel in Windsor Castle. Richard deserves respect and to be honored justly. His wish for a burial in York should be carried out. This should not be a case of finders keepers.
Billijo, thank you for this contribution to the debate. I must say, I think Leicester a wretched destination for his mortal remains.