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Court grants permission for exhumation, after suspicions arise over death of deceased

19 May 2023


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THE Consistory Court of the diocese of Oxford has granted a petition by a detective inspector of the Thames Valley Police for a faculty for exhumation, because suspicions had arisen about the cause of death after the body had been buried in consecrated ground.

The petition was heard without an oral hearing, and without notice of the petition to any near relative of the deceased. The judgment was delivered in an anonymised form, so that the name of the deceased, the location of the grave, and any details that might lead to those matters’ being identified were omitted.

The Chancellor, the Worshipful David Hodge KC, said that a “very few years ago, a very elderly person” died at home. That person’s general practitioner had attended the deceased shortly before the death, and had been able to certify the cause of death as “old age”. At that time, there had been no suspicions relating to the death, and therefore it had not been referred to the coroner. Shortly afterwards, the deceased had been buried in a consecrated churchyard.

Since the burial, evidence had come to light that had prompted concerns about the true cause of the deceased’s death. As a result, the investigating police force wished to exhume the body of the deceased, and conduct a forensic post-mortem examination, to investigate the true cause of death.

A forensic pathologist had confirmed that that should be possible. A Senior Crown Prosecutor had been briefed, and had confirmed that, should there be sufficient evidence in the case, then it would be in the public interest to seek to prosecute anyone who might have been involved in causing, or contributing to, the death of the deceased.

The purpose of the exhumation would, therefore, be to allow for a forensic examination, including the taking of samples for toxicological purposes. Several experts would be consulted, and would assist in the exhumation, to ensure that it was completed in a way that best preserved the evidence and also ensured due reverence and decency.

The deceased’s remains would be taken to a location identified to the court, and would need to be retained for a sufficient period of time to allow both for an initial post-mortem examination to take place and then, if a prosecution ensued, for the defence to request a further post-mortem examination if it wished to do so. At the earliest opportunity, the deceased’s remains would be returned for reverent reburial in the same grave in the churchyard.

In advance of the petition by the police, authority for the exhumation had been sought from, and granted by, the coroner, who had signed a direction to exhume the body. To protect the integrity of the police investigation, the police had requested that the exhumation should be completed without prior knowledge on the part of any member of the deceased’s family.

Under the Faculty Jurisdiction Rules, near relatives of the deceased are informed of an exhumation. The Chancellor said, however, that “in the particular circumstances of the present case, it [was] neither just nor expedient” for notice of the proposed exhumation to be given to the deceased’s immediate next of kin, because they had been identified as suspects in the investigation into the suspicious death.

The legal framework for the determination of an exhumation petition by a Consistory Court was based on the presumption that Christian burial was permanent, and only exceptionally would a faculty for exhumation be granted. It was for the petitioner to satisfy the court, on the balance of probabilities, that there were special circumstances that constituted good and proper reason for making an exception to the norm that Christian burial was final.

The Chancellor said that the petitioner had satisfied him on a balance of probabilities that special circumstances existed that constituted good and proper reasons for making the exception. Those special circumstances consisted of the need to establish, if possible, the true cause of the deceased’s death. That was “necessary in justice to the deceased; and in justice to the deceased’s next of kin”. If any of them were responsible for, or had contributed to, the death, they should be brought to justice. But, if they were innocent of any involvement in the deceased’s death, then the suspicions that had been raised in relation to them should be dispelled if possible.

The faculty was granted, subject to the conditions that the exhumation was to take place at a time and date to be notified in advance to the Registry and the parish church. That should not be within two hours of the scheduled start or end time of any service or other special event such as a marriage, baptism, or burial in the church or churchyard, or at a time when children were likely to be arriving at or leaving any local school.

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