Someone asked me about the Treasure Act recently, (or rather, “What would happen if I dug up something valuable in my field?” and I referred to the Treasure Act) and that reminded me, that a while back, Archaeozoo had kindly left a comment to one of my posts, mentioning the legal position relating to human remains found during digs.I meant to reply, but got waylaid by other business – sorry Archaeozoo.
A few of the main points which apply in English Law:
there is no property in a corpse, so it cannot be stolen;
it is a common law offence to disinter a body without lawful authority;
it is an offence in ecclesiastical law to remove the remains of the dead from consecrated ground without a faculty.
Section 25 of the Burial Act of 1857 applies to most cases of exhumation.
this states that, with certain exceptions, ‘it shall not be lawful to remove any body, or the remains of any body, which may have been interred in any place of burial, without licence’ and without following any conditions prescribed in the licence.
licences are obtained by writing to the Under Secretary of State at the Home Office and supplying requested details.
if bones are removed without licence, the offence is committed by the person who actually removes the remains, and a fine may be charged for each and every body.
no offence is committed where a body is removed from one consecrated ground to another under faculty (an authority granted under ecclesiastical law).
a faculty is nearly always required for the exhumation of human remains from a place of burial which is within the jurisdiction of the Church of England.
a faculty is obtained through the Consistory Court by petition, and notice of the petition will normally have to be displayed in an appropriate public place beforehand.
The Disused Burial Grounds (Amendment) Act 1981 and the Pastoral Measure 1983.
the development of a disused burial ground is restricted by the Disused Burial Grounds Act 1884.
definition of a disused burial ground – ‘any churchyard, cemetery or other ground, whether consecrated or not, which has at any time been set apart for the purpose of interment, and which is no longer used for interments’.
this does not include intramural burials within a church building.
the 1983 measure defines a burial ground as ‘any land set apart and consecrated for the purpose of burials whether or not burials have taken place therein’.
the 1981 Act and the 1983 Measure regulate the removal of human remains and tombstones or memorials which may be affected by the development (the former to non-Church of England, the latter to Church of England burial grounds.
other burial grounds are covered by the original 1884 Act, but development is generally not prohibited if no one has been buried on the land in the last 50 years.
notice of the proposed development must be given by the landowner in local newspapers and at the site.
The Faculty Jurisdiction Measure 1964
tombstones and other memorials belong to the person who erected them, and after his death to the heirs of the person in whose memory the monument was erected.
grave goods – generally these belong to the landowner, but in post-medieval or early modern burial sites there may be claims to the effects from the personal representatives or relatives of the deceased.
Notes relating to the exhumation of human remains from IFA Technical Paper No. 11 ‘The Law and Burial Archaeology’ (S. Garratt-Frost 1992).
In the news today:
The Queen, the Duke of Edinburgh and the Prince of Wales are attending the dedication of the new national Armed Forces Memorial.
The £6m stone circle in Alrewas, Staffordshire, bears the names of 16,000 service personnel who have died since World War II.
The memorial honours those killed in combat and training as well as in acts of terrorism.
The memorial will open to visitors on 29 October.