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Closed churchyard burial was unlawful, says Court

31 January 2020

Grave may remain, but funeral director must pay legal costs


St Oswald’s, Filey

St Oswald’s, Filey

THE burial of a body in a churchyard that had been closed by Order in Council was unlawful, the Consistory Court of the diocese of York declared, and that unlawful position could not be made lawful by any action of the Privy Council, nor by any faculty granted by the Consistory Court. Nevertheless, there was no proposal that the body might not be allowed now to lie there, and so it was allowed to remain.

The funeral director who arranged the burial, however, was ordered to pay the costs of the proceedings before the Consistory Court.

The churchyard at St Oswald’s, Filey, was one of seven churchyards closed by Order in Council on 10 December 2014. On 4 October 2018, the Vicar of St Oswald’s, the Revd Nigel Chapman, was approached by a funeral director, Vic Bowes, regarding the funeral of James Haxby, which was due to take place at the Methodist church on 10 October.

Mr Bowes enquired whether it would be possible for the interment to take place at the churchyard, even though it was closed, and said that Mr Haxby had wanted to be buried at St Oswald’s churchyard. The Vicar informed Mr Bowes that it would be possible only to bury ashes or to bury in an existing grave of a member of the family. The Vicar then went to see the deceased’s widow, and explained that to her.

The Vicar was away on a course after that, and returned to the parish on 12 October. He was surprised to find that Mr Haxby’s body had been interred in the churchyard next to the grave of his brother.

The Chancellor of the diocese of York, Canon Peter Collier QC, concluded that Mr Bowes knew, as did everyone else, that the churchyard was closed, but, when in the course of discussions with the family he learned of a space next to the grave of the deceased’s brother, he decided to take a chance and inter the body there.

It might be, the Chancellor said, that that came about because of Mr Bowes’s friendship with the deceased, and a desire to fulfil his wishes, “or because he found it difficult to handle the grieving family who clearly had a strong desire to honour the deceased’s wishes”. But it was not possible to escape the conclusion that, in this difficult situation, Mr Bowes was the professional, and the family were entitled to rely on him “to know the rules, and if in doubt to discover what they were”.

In each of those respects, the Chancellor said, Mr Bowes “had failed and, so fell well below the standard of what is to be expected of a funeral director”.

An Order in Council is an order that has been approved personally by the Queen at a meeting of the Privy Council. Any burial in breach of that order is unlawful, and is also a criminal offence. In all the circumstances, however, the Chancellor decided that it was not necessary to invite the authorities to investigate the commission of an offence in this case.

But the Chancellor made it clear that, hereafter, there was no possibility of the burial of a body in a coffin in a closed churchyard without a faculty.

Mr Bowes sought to persuade the Chancellor that a family grave could be expanded to include the space next to it. The Chancellor said that that interpretation was “not possible”. The way in which the Order was worded in relation to an existing family grave, and the reference to the amount of space that must remain between the top of the coffin and the surface of the ground, militated against such an interpretation.

If there were to be any activity in the future similar to what had happened in this case, then it was likely, the Chancellor said, that he would feel obliged to report it to the police with a view to prosecution; nor could it be guaranteed that any future burial would be allowed to remain in situ.

Mr Bowes was ordered to pay the costs of the proceedings because it was his unlawful actions that resulted in the inquiry and the hearing.

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