Rudewicz, R (on the application of) v Secretary of State for Justice & Ors

A discretion to license exhumation under section 25(ii) of the Burial Act 1857 is not subject to an implied presumption of permanence or a burden requiring exceptional justification. It is an unfettered statutory discretion, subject to rationality, the general law and Convention rights.

The consistory courts’ presumption of permanence in faculty proceedings reflects the theology of burial and does not govern the Secretary of State’s secular licensing power. A carefully reasoned decision balancing the relevant competing interests was not irrational or disproportionate. The appeal was dismissed.

The appellant, the nearest living relative of a priest buried at Fawley Court, challenged the Secretary of State’s decision to grant a licence under section 25(ii) of the Burial Act 1857. The licence permitted exhumation and re-interment at Fairmile Cemetery after Fawley Court had been sold.

The Divisional Court, Hallett LJ and McCombe J, refused judicial review: [2011] EWHC 3078 (Admin). The appellant argued that the Secretary of State had applied the wrong legal approach, acted irrationally and reached a disproportionate decision under Articles 8 and 9 of the Convention. The central issue was whether the statutory discretion was subject to an implied presumption against exhumation and whether the decision could withstand public-law and Convention scrutiny.

1. Appeal dismissed. The Secretary of State’s decision to grant the licence under section 25(ii) of the Burial Act 1857 was lawful.
2. Section 25(ii) confers an unfettered discretion. It is unhelpful or wrong to impose an onus on an applicant unless that merely means that a reason must exist for granting a licence. In the absence of special circumstances, the court should not imply limitations or fetters into a discretion which Parliament expressed without them. The discretion remains subject to rationality, the general law and human-rights obligations.
3. The common-law offence of unauthorised disinterment and the serious character attributed to it did not justify importing a presumption of permanence or a heavy burden. Whether the common-law offence survives alongside the statutory offence was left open because the issue had not been fully argued.
4. The presumption of permanence applied by Anglican consistory courts in faculty proceedings, explained in In re Blagdon Cemetery [2002] Fam 299, arose from the theology of burial. It was relevant to the ecclesiastical faculty jurisdiction but irrelevant to the secular power under section 25(ii), and could not be imported by reference to the religion of the deceased.
5. The decision was not irrational merely because objectors who wished to visit the grave opposed exhumation. The Secretary of State could accept that others wished to visit it, give weight to the application by the deceased’s religious superiors, and take account of re-uniting the deceased with former members of the order even though the application followed the sale of the property.
6. Articles 8 and 9 were of doubtful application. The appellant had never met the deceased and was a distant relative, and the objections did not obviously involve holding or manifesting religious beliefs. Even assuming that the Articles were engaged, the decision was proportionate. The Secretary of State had carefully balanced competing interests and adequately considered the objections. The Convention rights relied upon did not justify judicial interference.
7. Lord Justice Stanley Burnton and Lord Justice McFarlane agreed with the Master of the Rolls.

• Court of Appeal (Civil Division) — The appeal was dismissed on 24 April 2012: [2012] EWCA Civ 499.
• Divisional Court, Queen’s Bench Division — Hallett LJ and McCombe J refused judicial review of the Secretary of State’s decision: [2011] EWHC 3078 (Admin).