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Fewston exhumation could be deemed a criminal offence

09 September 2016


Adjacent: Washburn Heritage Centre, Fewston

Adjacent: Washburn Heritage Centre, Fewston

THE excavation of 154 sets of skeletal remains during building work at St Michael and St Lawrence, Fewston, in the diocese of Leeds, could amount to the commission of a criminal offence, since a faculty for exhumation had not been obtained, nor had a Ministry of Justice licence been granted, a court has been told.

The matter came to the Consistory Court of the diocese of Leeds in June, as an unopposed petition by the incumbent and churchwardens of the parish of Fewston with Blubberhouses for a faculty for the reinterment, at the church, of the 154 skeletal remains (“the Fewston Assemblage”). The remains had been removed from the graveyard during excavations for the erection of the Washburn Heritage Centre, and for the erection of gravemarkers, the retention and display of certain artefacts by way of a permanent exhibition, and the installation of an interpretation board.

In September 2008, the Bradford Consistory Court had issued a faculty for the Washburn Heritage Project, which the Archbishop of York had described as providing “hospitality and refreshment” for those visiting the Washburn Valley for recreation, education, or spiritual uplift. That faculty provided for the demolition of the hearse house, the erection of an extension to the church, and various ancillary works.

The only concern raised in 2008 was the “likelihood of finding potentially many more than the estimated 40 graves in the area” of the building work. The response to that concern was a “light-touch” condition that a named individual should be consulted on all archaeological aspects of the project, and his advice heeded. The 2008 faculty was silent on exhumation.

In the original petition in February 2008, however, express reference had been made to interference with the graves of people who died in the 1880s.

The faculty was varied from time to time, mainly in regard to the time for completion, but no faculty for exhumation was granted for the excavation of the 154 sets of human remains which took place in April and May 2009.

Archaeological research was carried out on the remains by the universities of Durham and York. Of the totality of the remains, 22 individuals had been positively identified, and it was proposed that 15 of them should be buried in front of specific headstones, with the remaining seven being marked by a single new memorial.

It was proposed that the remaining 132 unidentified sets of human remains — some of them comprising nothing more than a few bone fragments — should be reinterred in a mass grave to be marked by another new memorial.

It was also proposed to introduce a copy of a damaged 19th-century grave-marker denoting the final resting place of James and Elizabeth Dibbs, and for the remains of David Lister to be interred in an existing Lister family grave, as requested by his descendents.

The Chancellor, the Worshipful Mark Hill QC, said that there was no explanation why human remains had been unlawfully exhumed, nor a judgment or other note giving reasons for authorising wholesale disinterments on an ex-post-facto basis.

The faculty jurisdiction was “not some limpid simulacrum of the secular planning system, which it predates by many centuries”, he said. It was “a vibrant functioning expression of the ecclesiology of the Church of England, which helps to facilitate its mission and witness as the Church of the nation.” A key function of the Consistory Court was the maintenance of Christian doctrine, the Chancellor said, and, if there was to be a departure from the theology of the permanence of Christian burial, it should happen only after careful consideration, which should invariably precede any disinterment.

Moreover, the court was unable to locate any reference to a Ministry of Justice licence, and the Registrar was unaware of one having been obtained. Section 25 of the Burial Act 1857 provides for bodies not to be removed from burial grounds save under faculty with licence of the Secretary of State.

The Chancellor said that it would therefore appear that not only did those responsible for the exhumations proceed without the authority of a faculty, they also committed a criminal offence. A confirmatory faculty did not retrospectively legalise what had been done, but, for the future, it brought the matter within the four walls of the law. The Consistory Court had no power to relieve those responsible from criminal penalty. It would be for the prosecution authorities to determine what, if any, action should be taken.

It was right and proper, the Chancellor said, that these remains were now reinterred in a seemly and dignified manner in the consecrated burial-ground from which they were removed in 2009.

A faculty was granted for the skeletal remains comprising the Fewston Assemblage to be reinterred in the churchyard at the direction of the incumbent. The wording proposed on the various headstones and gravemarkers was approved; the one for the mass grave was to read: “In memory of one hundred and thirty-two unidentified individuals known unto God whose remains were moved from elsewhere in this churchyard to allow the construction of the Washburn Heritage Centre. 15 September 2016. May they rest in peace.”

A service of commemoration is planned for mid-September.

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