FIRST IF ANYONE IS FOLLOWING I SUGGEST YOU READ THE FOLLOWING:
http://webjcli.ncl.ac.uk/2008/issue5/gallagher5.html which explained the
situation to me.
Andy Holland wrote:
> Hi Mike
> I realise that this area is a bit of a mine field for archaeologists.
> The problem is you are not reading the next line of the burial act which
> ... and with such precautions as such Secretary of State may
> prescribe as the condition of such licence;"
The act tells us what is illegal "unless a licence is obtained" and the
above clause allows actions that would be illegal without a licence to
be made legal with a licence and for certain conditions to be applied
where a licence is required. So the the secretary of state can outline
precautions in the case where a removal would be illegal. But this
clause does not allow the secretary of state to prescribe precautions on
acts which are not illegal under the act, and as a very simple example
the act was not written at a time when cremation was being used in the
UK, so it cannot cover disposal of cremated remains.
> On this basis the MoJ in the name of the Secretary of State can
> determine what conditions they decide to impose.
Where actions would be illegal, but it doesn't allow them to impose
restrictions where the actions are not illegal under the act!
> In early 2008 the Ministry of Justice published the following statement:
> Under these and the other detailed conditions the MoJ have tightened the
> regulations and now make it a condition of compliance with the act to
> inform them of the discovery of any human remains found or expected to
> be found during any works - including archaeological works.
They only have the power to put conditions where a licence is required
under the act!
> So if you don't let them know you have not fulfilled the conditions of
> license to remove remains and therefore you are in contravention of the
> Act and guilty of an offense.
Actions which were never illegal under the act can't be made illegal by
virtue of ministerial dictate (at least not yet!)
> If you find bones you must inform the MoJ and therefore you are in
> effect also informing the Coroner (The Coroner's service is a crown
> service based in the MoJ. In effect a Coroner is an officer of the MoJ
> and the Crown - just like a Judge is an officer of the Crown)
Only if you personally remove bones from a place of burial. If you
aren't removing bones from a place of burial, then your actions aren't
illegal because they aren't covered by the act. And because they aren't
covered by the act there is no need to inform the MoJ.
> The law does not work on "common sense" but either defines a term like
> "place of burial" or allows it to be assumed until it is challenged in a
> court at which time it is set by precedent and case law.
Neither does it work on ministerial dictate!
> In the case of "Place of burial" case law quickly defined section 25 of
> the act when in 1867 Crown v Tristram Court interpreted the section as
> meaning that except where the remains are under faculty jurisdiction,
> "...no body shall be removed from the ground without the licence of the
> Secretary of State." Thus defining a "place of burial as any remains in
> the ground. The emphasis is on the present not upon any actions in the
> past - I.e. where human remains are found in the ground not where they
> were put. As such archaeology of fragmentary remains, plough damaged
> remains and disturbed remains are all included.
Sorry, it says: "no body may be removed from the ground" ... "Thus
defining a "place of burial as any remains in the ground" the whole
point about field walking is that they are not in the ground.
The MoJ themselves say that if remains have already been removed from
the ground "there is no need to apply for a licence."
> "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"."
> I disagree where the remains are obviously human - but in reality most
> field walkers won't know if they are human (hence why I get called out
> by the police so often to look at some "Human" bones which are actually
> dog or lamb etc.) so they tend to pick them up, record them and then
> forget about it - only afterwards in the lab/site hut when they are
> looked at by someone who knows what they are looking at will it become
> an issue.
> Yes it's not an ideal situation but until such time as parliament feels
> the need to dedicate a chunk of its time to a new shiny set of
> customised laws for archaeology we'll have to live with it. (don't let
> me get started on the dropping of the Heritage Protection Bill this
> year) The IFA is pursuing the matter with the MoJ and stated last year
> "that by 2010 MoJ intends to have enacted secondary legislation to
> regularise these arrangements for archaeological work to take place."
SUGGESTED WORDING OF THE ACT.
Just for fun I wondered what the burial act should say and I came up
with the following:
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 move any body, or tangible(1) remains
of any body, from any final resting place(2) or other location of
disposal(3), without licence under the hand of one of Her Majesty’s
Principal Secretaries of State, and with such precautions as such
Secretary of State may prescribe as the condition of such licence;
(1)Capable of being touched (I.e. not molecular)
(2)The general term that is used to cover intentional burial, cremation
or laying to rest in a recognised ritual.
(3)a.This covers any bodily remains which are in a place where in the
ordinary course of events they would deteriorate “to dust”, irrespective
of a recognisable ritual.
b. A place is an area, a location is a point in 3-d space which protects
against digging up and leaving exposed and place can be interpreted "a
place set aside for burial" rather than just the location where the
For anyone interested in the subject I came across this website that
seems to give a very good resume of the real state of the law:
POINTS WORTH NOTING from this link:
1. The basis of much of the common law offence is actions that show
disrespect to a body
2. Any exhumation not authorised by statute or ecclesiastical faculty
may be an offence at common law of removing a corpse from a grave
without lawful authority and unlawful interference with a corpse. Of
less relevance to the current discussion there is also a common law
offence of preventing the lawful and decent disposal of a corpse,