It was for the Secretary of State of Justice, as the licensing authority for the exhumation of human remains (other than the power of a consistory court to grant a faculty to exhume human remains interred in consecrated ground of the Anglican Church), to determine on what grounds and in what circumstances to grant a licence to remove human remains. Apart from an obligation to act rationally and otherwise in accordance with the general law, there should be no fetter on his jurisdiction, nor any justification to import a presumption of permanence.

The Court of Appeal so held dismissing the appeal of the claimant, Elzbieta Rudewicz, from the decision of the Divisional Court of the Queen’s Bench Division (Hallett, LJ and McCombe J) on 18 October 2011 [2011] EWHC 3078 (Admin) refusing her claim for judicial review of the decision of the Secretary of State to grant a licence, under section 25 of the Burial Act 1857, permitting the exhumation of the remains of a Polish Roman Catholic priest, Father Jarzebowski, from Fawley Court, a 27-acre estate in Henley upon Thames, in order to be transferred to Fairmile Cemetery some two miles away.

Fawley Court, bought by the Polish Province of the Marian Fathers, a Roman Catholic religious order and charitable institution, in the 1950s, was used as a school until 1986 and a retreat and conference centre; a church was built on the site by a member of the Polish royal family, Price Radziwill, who was now buried in the crypt. The priest founded the school, played a prominent part in the life of the Roman Catholic community and was regarded by many of them as very special with almost saint-like status. Following his death in 1964 on a visit to Switzerland, he was buried at a particular location in Fawley Court in accordance with his express wishes. The estate was deconsecrated and sold in 2008 to a company, and the institution, with the support of the Provincial Superior of the Polish Province of the Fathers, the Superior General of the Congregation of the Fathers in Rome and the local bishop, applied to the Secretary of State two years later to disinter the priest’s remains and to re-inter them in the cemetery where a number of the Fathers who had died after 1964 were buried. The application was strongly opposed by some 2,000 persons of the Polish Roman Catholic community and included the claimant who was the priest’s nearest living relative being a first cousin once removed who had been aged seven when he died.

Relevant factors leading the Secretary of State to grant the licence included the practice in relation to applications under section 25 to regard the wishes of the deceased’s next of kin as very important, and the head of a religious order was generally regarded as the next of kin of members of such orders; the removal of the remains to the cemetery would re-unite the priest’s remains with his former brothers with whom he lived and worked; and if the priest remained buried at Fawley Court, there would be no obligation on the landowner to permit access to his grave, whereas if his remains were moved to the cemetery access would be unimpeded. The Secretary of State did not ignore the countervailing factors—the priest’s wish to be buried at Fawley Court, the stress caused to many in the Polish community by his disinterment, the possible feeling of disrespect his decision might be seen as signalling to the Polish heritage, and the objections of the priest’s nearest living relative.

LORD NEUBERGER OF ABBOTSBURY MR said that the contention that there was an onus on an applicant for a licence under section 25 of the 1857 Act to show good reason why disinterment should be permitted was either unhelpful or wrong. Obviously the Secretary of State was not going to grant a licence unless there was a reason for it; it appeared he regarded the wish of the next of kin to re-inter the remains elsewhere as a sufficient reason. Section 25 seemed to confer an unfettered discretion on the Secretary of State, and it was, at least in the absence of special circumstances, inappropriate for the court to treat a statutorily conferred discretion with no express limitations or fetters as being somehow implicitly limited or fettered. Reliance was also placed on disinterment of a body without lawful authority remaining an indictable offence at common law: R v Jacobson (1880) 14 Cox CC 522, and also the approach of the consistory courts to faculties of exhumation. Section 25 empowered the Secretary of State to give such authority by means of a licence. The reasons for the “general presumption of permanence” adopted by consistory courts as explained in In re Blagdon Cemetery [2002] Fam 299, paras 23–27 as being based on the “theology of burial” was highly relevant to the faculty jurisdiction, but it was equally plainly irrelevant to the exercise of the secular power in section 25. The consistory courts applied ecclesiastical law to graves in Anglican consecrated ground. The fact that their jurisdiction did not extend to other graves, all of which were governed by section 25, could not begin to justify interpreting the section by reference to the beliefs of the religion of the person buried in the particular grave. As to whether the decision to grant a licence was irrational, it was true that an important reason for its grant was to enable those wishing to visit the priest’s grave to do so and those objectors who said they wished to do so opposed the grant of a licence. That did not invalidate the reason for the grant: there was no reason to suppose that the only people who wished to visit the grave were objectors. In any event it was not clear that all the objectors appreciated they might well not be able to visit the grave if the licence was not granted. It was also relevant that it appeared likely the priest would be beatified, which made it more likely that it was not just members of the Polish Roman Catholic community who would wish to pay their respects to his grave. As to whether the Secretary of State’s decision was proportionate and whether articles 8 and 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms were engaged, it was difficult to see how the claimant’s private life could fairly be said to be involved since she was a distant relative and never met the priest. While the exhumation might offend the claimant’s and the objectors’ religious feelings, it would not affect their right to hold or their right to manifest those beliefs. Even if both articles were engaged, the decision was clearly proportionate: as far as the articles were concerned, there were competing interests. In relation to article 8, there were the wishes of the Provincial Superior who in many ways had a stronger case than the claimant for being treated as the priest’s closest family member; in relation to article 9, the claimant’s and objectors’ concerns had to be balanced against those whose religious beliefs appeared to favour the grant of the licence. In any event the Secretary of State had taken into account those concerns and he concluded they should not prevail. The present was not a case where the fact those concerns might involve Convention rights should take matters any further. In the light of the careful balancing exercise undertaken by the Secretary of State and the reasons for which he decided to grant the licence, the involvement of the relatively weak Convention rights invoked in the case could not begin to justify a court interfering with the decision.

STANLEY BURNTON and McFARLANE LJJ agreed.