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BRITARCH  June 2009

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Subject:

What is a place of burial? Section 25 licence and the Coroner.

From:

Michael Haseler <[log in to unmask]>

Reply-To:

British archaeology discussion list <[log in to unmask]>

Date:

Fri, 5 Jun 2009 13:49:33 +0100

Content-Type:

text/plain

Parts/Attachments:

Parts/Attachments

text/plain (149 lines)

Andy Holland wrote:
> Mike
> 
> The laws as originally formulated worked the way you quote but they have
> been amended over time. Where such amendments occur the law remains on
> the statute with its original dates but the amended sections apply
> (hence Offenses Against the Person Act 1874 as amended.) 
> 
> Re: the role of the coroner:
> "(b) has died a sudden death of which the cause is unknown; or"
> Covers all these situations. "Reasonable cause" is given by the fact
> that human bone has been found outside of recognised burial yard.
> Therefore until the coroner is satisfied of a cause and manner of death
> and that the remains are not within his jurisdiction (b) applies and the
> coroner has jurisdiction.
> As it is only the coroner who can officially rule on if the remains are
> within their jurisdiction or not, or if they died a sudden death, then
> any remains found are (in the eyes of the law) assumed to be so until
> such time as the coroner rules they are not (i.e. it's the coroner who
> rules they are archaeology - not the archaeologist - but in reality the
> coroner accepts the archaeologists word as expert testimony) - therefore
> "Hue and Cry" does apply as does section 25 - and by informing the
> Ministry of Justice the Coroner is informed (mainly because the MoJ
> delegates to the local Coroner).
 >
Andy, whilst I don't want to question your obvious expertise, you don't 
seem to be backing up your position with any evidence. I'm not 
questioning what the coroner must do if they are informed. The question 
is whether there is any legal duty to inform the coroner in the normal 
context of archaeology.

As far as I could see there is no law that says: "you must inform the 
coroner if you find bones". It appears that the duty comes as part of 
Norman (or is it before?) law requiring people to take up a "hue and 
cry" to capture a criminal. Whilst obviously it's worth erring on the 
cautious side and not assuming bones are archaeological unless there is 
overwhelming reason to believe they are.

It is not the finding of bones, but the possibility of a crime!

> 
> Re: Section 25 licences. These were amended recently and the new rules
> came into affect in April 2008. Whether you like it or not they are the
> rules and therefore any archaeological (or for that matter any
> construction or other works) that disturb unexpected human remains
> require that you notify the Ministry of Justice and acquire an emergency
> license under section 25 (as amended) to not do so is an offense. 
> Place of burial means any place where remains were buried (intentionally
> or otherwise). It was originally written in relation to intentional
> burial in Christian Burial yards but was amended to cover archaeological
> burials as well. 
> Interred does not imply religious connotations for the purposes of this
> act but rather just placing in the ground - in any shape of form. 
> Medical specimens (and any other human bones) DO fall foul of the law -
> any museum for example holding human remains must fulfil the
> requirements of the burial act and hold a license to curate any skeletal
> remains (there are a few exemptions). This is why the (since april 2008)
> section 25 license applications must also say where remains will be held
> and how they will be disposed of/reburied after 2 years (unless an
> extension is applied for). It's a real problem for archaeologists and as
> such is currently under further review.(particularly in light of the the
> Anatomy and Human Tissue Act 2004)
> It does cover cremations where they have been buried (as in
> archaeological remains.) (modern cremations are so finely powdered that
> when scattered they are too small to be identified as human remains by
> most people so wouldn't normally be notifiable). Modern cremated remains
> in an urn etc. and un-buried are an area I think is a bit more vague and
> I'd have to check by notes at home to be clear on the situation with
> them.
> 
> Basically if you carry out any construction or archaeological work
> (archaeological work is any archaeological investigation including field
> walking) in England and Wales and you expect to find human remains you
> need a S.25 license in advance of work. If you find unexpected remains
> during the work you MUST stop and get an emergency S.25 license (you can
> do it by phone to the MoJ).

Andy, again,  you don't seem to be backing up your position with any 
evidence and you are saying things which just aren't supported by the 
act. Unless there is some kind of amendment to the burial act or some 
case law that deals with this particular aspect of the law, all we have 
is the wording of the act:

"Except in the cases where a body is removed from one consecrated place 
of burial to another by faculty granted by the ordinary for that 
purpose, 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 under the hand of one of Her Majesty’s Principal Secretaries of 
State,"

The act specifically says the body must be removed from and have been 
interred in a place of burial. I couldn't find a legal definition for a 
"place or burial" but presumably common sense would exclude some places 
such as human body parts stored in a mausoleum-like cellar of a hospital 
as not being a "place of burial" nor is there any intention to "inter". 
And when you compare ancient cultures and their apparent public displays 
of the dead does it not have very close parallels to our our own modern 
museums, medical institutions, etc.

 From what I've seen, archaeologists spend half their time debating 
whether this or that place was "a place of the dead" or just "a place 
where we find the dead" and in order for a prosecution to succeed, 
someone is going to have to prove that the body had been "interred in a 
place of burial"  - and not just a storage place under ground. For 
archaeological remains, dug up by an archaeologist the person any court 
is going to have to rely on to interpret whether the original was an 
"interment in a place of burial" is going to be the defendant which 
doesn't bode well for a successful prosecution!

And, the simple fact is that bones on the surface have already been 
removed from "a place of burial" so the removal from a place which was 
not their place of burial is not an offence because it isn't covered by 
the act - if anyone should seek a section 25 licence, it is not the 
field walker but the (modern) farmer whose deep ploughing has removed 
the bones.

And lets not forget that the 1857 act came before cremation and acts 
that refer to places of cremation differentiate them from places of 
burial, so legally a place of cremation is not the same as a place of 
burial (unless you've got evidence to the contrary). Furthermore the 
1857 act wasn't written for modern archaeology. It was written to 
prevent removal of substantial recognisable body parts from Christian 
places of burial and trying to extend its use to archaeology without 
specific case law is dangerous, particularly now that the science has 
moved on and the "remains" of a human body can now be identified at a 
molecular, even atomic level potentially everything dug up from the 
ground (from pottery to carrots) involves the unauthorised removal of 
potentially identifiable "remains" of a human bodies which a pedantic 
reading of the act and a generous interpretation of "burial place" would 
result in everyone requiring a section 25 licence just to garden.

Personally, I think the law is so ambiguous that any jury is going to 
find reasonable doubt unless their is a clear breach of the act and 
personally I would just use common sense:

1. I can see nothing in the law requiring a licence to pick up an odd 
scattered bone from field - that's just common sense -  the odd 
scattered bone does not constitute a "place of burial".
2. Where and when a location is identified as a "burial place" of a body 
(not cremation and not scattered remains or exhumation) it appears a 
licence is required.
3. The duty to inform the coroner only comes into play where there is a 
need to take up a "hue and cry" and find a criminal. Coroners have a 
duty to act if they are informed.


UNLESS THERE IS CASE LAW OR OTHER EVIDENCE?

Mike

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