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Ecclesiastical Case Reports
Re Crawley Green Road Cemetery, Luton
(St Alban's Consistory Court: Bursell Ch, December 2000)
Exhumation - Human Rights Act 1998 - humanism
The petitioner sought a faculty in respect of the exhumation of the cremated remains of her late husband which were buried in the consecrated portion of the cemetery. The deceased was from part Jewish parentage and neither he nor the petitioner had any Christian allegiance. She was unaware of the fact that the plot where the interment had taken place was consecrated, and the funeral had been a humanist one. The petitioner had since moved away from the area although she visited her husband's grave every fortnight and wished to have her husband's cremated remains re-interred in the grounds of a crematorium close to where she lived. In applying Re Christ Church, Alsager [1999] Fam 141, [1999] 1 All ER 117, the chancellor was of the view that in the absence of any medical condition the petitioner had failed to displace the presumption against exhumation. However, the Human Rights Act 1998 made it 'unlawful for a public authority to act in a way which was incompatible' with a right under the European Convention of Human Rights. By section 6(3) a 'court or tribunal' was a public authority and included an ecclesiastical court. Applying and approving the judgment of Hill Ch in Re Durrington Cemetry [2001] Fam 33, the chancellor held that although no rights accrued to the deceased after his death, his widow had rights under Article 9 of the Convention. Following Arrowsmith v UK (1978) 3 EHRR 110 and Kokkinakis v Greece (1994) 17 EHRR 397, Article 9 embraced not only religious beliefs but also non-religious beliefs and humanist beliefs and referred not only to the holding of such beliefs but also to some extent to the expression thereof: see C v UK (1983) 37 DR 142. The fact that the ashes were not to be reburied in consecrated ground could not be determinative of the matter and the faculty for exhumation was granted.
Note: This case is fully reported at [2001] 2 WLR 1175.
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