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Remains may shed new light on possible miscarriage of justice

15 February 2019


St John’s Cemetery, Elswick

St John’s Cemetery, Elswick

THE Consistory Court of the diocese of Newcastle granted a faculty for the temporary disinterment and reburial of remains, to investigate the possibility that the deceased was the perpetrator of two offences of rape, of which his son had been convicted and was serving a prison sentence.

The petitioner for the faculty was Moira McKenna, the daughter-in-law of the deceased, Thomas Edward McKenna, who died in April 1993 and was interred in the consecrated section of St John’s Cemetery, Elswick, Newcastle upon Tyne.

The petitioner contended that her husband, Eric McKenna, the son of the deceased, had been wrongly convicted last year of two offences of rape, committed in 1983 and 1988, and had been sentenced to 23 years’ imprisonment.

Eric McKenna’s trial and sentence were widely reported on the television, and that had prompted Eileen Hutton, his sister, and the daughter of the deceased, to contact Eric McKenna’s legal team. She had lost contact with her brother for many years, and wanted to be put in touch with him and his wife.

Mrs Hutton informed them that she did not believe that her brother had committed the offences of which he had been convicted, but that their father might well have been the perpetrator. She alleged that their father had been a violent person, particularly towards women, and had served terms of imprisonment.


The entire case against Eric McKenna had been based on DNA evidence, and there had been areas of the evidence on which the defence relied as suggesting that someone other than Eric McKenna was the perpetrator. Even before Mrs Hutton contacted his defence team, it had been discussed with him that “statistically the most likely scenario was that his father had committed the offences if it was not him”.

Chancellor Euan Duff said that, having considered all the material that the petitioner had provided, he had decided that she had made out a case for the temporary disinterment of the remains, and sampling of bone fragments for DNA analysis. The Chancellor added that the granting of the faculty should not in any way be taken as support for the contention that Eric McKenna had been wrongly convicted, or that the deceased might be the perpetrator of the offences of which Eric McKenna had been convicted.

The Chancellor considered, however, that, “if there is even a slight, but real, possibility that there has been a serious miscarriage, of justice then it is wholly proper that everything be done to ensure that that is not the case.” If, as might well be the case, he said, ultimate DNA analysis established that the deceased could not possibly have been the perpetrator, then that would put an end to any untoward allegation that he might have been guilty of the offences. The Chancellor was satisfied that the circumstances were “sufficiently compelling to justify exhumation”.

In October 2018, a detailed report had been prepared by a forensic anthropologist employed by Cellmark Forensic Services to deal with the practicalities of the exhumation and examination. In view of the length of time that the coffin and remains had been buried, it was impossible to say before the opening of the coffin what state the coffin or remains would be in. It was equally impossible to say whether it would be necessary to exhume all the remains, or whether it would be possible to take bone fragments in situ.

In either case, the 2018 report set out a clear methodology. Proper arrangements were to be made in accordance with that report, and in conjunction with Newcastle City Council Bereavement Services and Cellmark Forensic Services, to deal with the extraction, retention, and re-interment of the remains which required removal, including any samples removed and tested which had survived the testing process.

All the remains must be reinterred within the same burial plot in which the deceased is currently interred, and the arrangements must be carried out in a “seemly and discreet” manner.

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