CHANCELLOR James Behrens, in the Leicester Consistory Court, has refused a
confirmatory faculty in respect of the actions of Leicester City Council. The
Council had, in the interests of health and safety, laid flat over 100
gravestones in the consecrated, Church of England section of Welford Road
Cemetery, without first obtaining a faculty or informing the relatives of the
Welford Road Cemetery has a Grade II listing in English Heritage's register
of parks and gardens of historic importance. It was opened in 1849 and was,
throughout the Victorian period Leicester's only corporation cemetery. The site
extends to 30 acres and contains 40,000 graves, of which 22,000 have memorials.
The consecrated section contains 10,000 memorials.
In the second half of 2001 the Council became increasingly aware of several
accidents, including fatalities, due to unsafe memorials in cemeteries. There
was also local concern about cemetery safety.
In October 2002, on the recommendation of the Confederation of Burial
Authorities, the Council engaged a firm, Welters Worldwide, to inspect all the
gravestones. Any that were assessed to be unsafe would be propped up by being
attached to a large metal stake.
However, as the work progressed costs escalated, the Council felt it was not
getting value for money. It therefore decided to dispense with the services of
Welters and do the remainder of the work itself.
The Council found that several memorials had been missed by Welters
Worldwide and were unstable, and that safety notices that had been put around
unstable, monuments had been removed. The Council therefore concluded that the
only safe thing to do was to lay down all the unsafe memorials.
Between January and March 2004 the Council embarked on a programme of making
the cemetery safe by laying down all memorials found to be unsafe. The cemetery
was closed because of health-and-safety concerns, and visitors were allowed in
only by booking a time to visit and signing in at the entrance.
Around 300 people signed a petition objecting to the Council's actions, and
articles appeared in the press criticising what had taken place. Complaints
were made to Leicester's two MPs. At about the same time, the Council found out
that it should have applied for a faculty, since its power to keep municipal
cemeteries safe is subject, in the consecrated part of the cemetery, to the
jurisdiction of the Consistory Court.
The Rural Dean, the Revd Howard Cocks, and Lisa Handy, the Bereavement
Service Manager of Leicester City Council, petitioned the Consistory Court for
a confirmatory faculty after the Council had carried out the work. The petition
was opposed by Edward Hryniewiecki, chairman of the Federation of Poles in
The Polish community in Leicester have forebears who are buried in the
Church of England consecrated part of the cemetery, even though most of them
were Roman Catholic. No part of the cemetery is consecrated by the Roman
The Polish families considered the Council's actions over-zealous,
over-hasty, insensitive, and disrespectful to the Polish community and their
dead. They complained that the Council had not communicated with them before
laying flat some 119 gravestones, and argued that the Council's refusal to bear
the cost of making each memorial safe (at between £100 and £200 for each
memorial) was based either on a misunderstanding of, or a deliberate refusal to
undertake, its legal responsibilities. They sought a restoration order
requiring the council to repair and make safe at its own cost all memorials
which it had laid down.
The Council said that efforts had been made to contact the families
concerned with the memorials that had been found to be unsafe. A telephone
helpline had been set up, advertisements were placed in the Leicester Mercury,
and announcements were made on Radio Leicester. Notices were also put up at the
entrance gates of the cemetery.
Mr Hryniewiecki said that the gravestones of his grandparents and other
members of his family had been laid down, although they were perfectly safe. He
also said that several memorials had been chipped and damaged, and that "chunks
of gravestone had been literally hacked out, as if a sledge hammer had been
applied to test the gravestone". Others also gave evidence of damage to their
None of the Polish witnesses had read the Leicester Mercury nor
listened to Radio Leicester. They had not seen the notices placed at the
entrance to the cemetery, probably because they drove straight into the
cemetery in their cars without stopping at the entrance. When they tried to
contact the telephone helpline, it was unmanned. Nor did any of the Polish
witnesses receive any notice from the Council of what it was doing to the
The Chancellor described the difference between Council's bland statements
that it had done all the right things to ensure people knew what was being
done, and the reality, as having "a certain Kafkaesque quality". It would not
be appropriate, the Chancellor said, to order the Council to repair just the
119 Polish memorials. That might be unlawful discrimination in favour of the
Polish Community. To avoid any suggestion of such discrimination it was better
to order the repair of all the memorials which had been laid flat in the
consecrated area, even though it was only the Poles who had objected to the
A cemetery where a significant number of memorials had been laid flat was
disrespectful and an eyesore, and in the Chancellor's judgment the Council had
over-reacted to health and safety issues.
The confirmatory faculty was refused in respect of past work, and the
Council was ordered to reinstate and repair to a safe condition all the
gravestones which had been laid flat in the consecrated section. Where there
was a dispute over whether the Council's actions had resulted in damage to a
memorial, that should be referred to arbitration by a suitably qualified third