Faith

In R v Struhs [2025] QSC 10 the Supreme Court has found that numerous defendants are guilty of manslaughter of a child as part of the expression of their faith, which included expectations that the child would undergo resurrection. 

The judgment states 

After the Crown opening at the commencement of the trial, I invited all accused to make an opening statement. Only one accused spoke, although he purported to speak on behalf of all. That was Brendan Stevens, the spiritual leader of a small, home-based Church of which each other accused was a member at the time of Elizabeth’s death. He asserted, amongst other things, that the trial was “just a religious persecution”, that the accused did not “have any particular care” amongst themselves how they were judged by the court and that they did not “come to fight the charge”. Despite that, most accused progressively engaged in one way or another with the trial process and, by its conclusion, all 14 accused stood to address the court. Their addresses occupied a whole sitting day on the last day of trial and most accused advanced submissions to the effect that he or she should be acquitted of any wrongdoing. ... 

Until her death, Elizabeth Rose Struhs was a vibrant, happy child with, of course, her whole life ahead of her. She left a lasting impression on many with whom she came into contact on the outside, whether through her schooling or during the treatment and control of a medical condition she was first diagnosed with in 2019 – Type 1 diabetes. It cannot be doubted that she was lovingly cared for in almost every way by her parents, Jason and Kerrie Struhs , or that she was adored by every member of the Church including all other accused. However, due to a singular belief in the healing power of God which, to the minds of her parents and the other members of the Church left no room for recourse to any form of medical care or treatment, she was deprived of the one thing that would most definitely have kept her alive – insulin. Her death was inevitable once the administration of that drug was abandoned and when, encouraged and supported by the other accused, her parents refused to seek any medical assistance in the days and nights which followed until her death. ... 

The Crown case against all accused was premised on the duty owed under the law by Jason and Kerrie Struhs to provide Elizabeth with such medical care and treatment as was necessary for the preservation of her life. Each had been previously dealt with by the courts for failing to do so. Each, the Crown contended, failed to do so again with the inevitable consequence that Elizabeth died. 

[22] All accused, except for Jason Struhs , held to a fervent belief in the healing power of God of the kind already mentioned, that is to say, a belief that left no room for recourse to any form of medical care or treatment. This was a core belief of the Church, and no suggestion was made by the Crown that it was not genuinely held by its members. However, the Crown alleged that, when Jason Struhs joined the Church after 17 years of staunch opposition, he was persuaded by all other accused to adopt, and then act on, that core belief with the consequence that he ceased the administration of insulin to Elizabeth and, further, that they aided him through encouragement and support not to resume insulin or to seek any other form of medical care or treatment for her in the intervening days and nights before she died. 

[23] In the cases against Jason Struhs and Brendan Stevens, the Crown maintained that, not only was each criminally responsible for Elizabeth’s death, but they acted in circumstances where they were recklessly indifferent to human life. This was because, it was alleged, both knew that, by ceasing insulin and shunning any other form of medical intervention, Elizabeth would probably die. Each was accordingly said to be guilty of murder because they acted (or omitted to act) with reckless indifference to Elizabeth’s life. 

[24] The case against Kerrie Struhs for manslaughter was based on her refusal to fulfill the duty owed by her to provide Elizabeth with such medical care and treatment as was necessary for the preservation of her life. 

[25] All other accused were said to be criminally responsible for Elizabeth’s death because, by their words and actions of encouragement and support, they both counselled and aided the unlawful killing of Elizabeth by intentionally encouraging Jason Struhs to cease providing insulin as well as medical care and treatment to Elizabeth, and by intentionally supporting his choice to continue to do so. This, it was said, amounted to manslaughter. ... 

Reference has already been made to the opening statement delivered by Brendan Stevens. He emphasised that all accused were within their “rights to believe in the Word of God completely” and that they had chosen to “follow God”, echoing remarks made by Kerrie Struhs in her closing address to the jury at her trial in 2021. Mr Stevens asserted that the prosecution against all accused was a prosecution for believing in God. 

[27] By the end of the trial, all accused continued to maintain the position that they were entitled to their particular belief in the healing power of God, even if that conflicted with the laws of the world. However, in addition, many accused submitted they played no role in the decision Jason Struhs made to cease the administration of insulin to Elizabeth. Similarly, it was submitted they played no role in Mr Struhs ’ choice not to resume insulin or seek any other form of medical care or treatment. All they had done, it was submitted, was to encourage Mr Struhs to believe in God. To the point, they submitted they had done nothing to persuade, encourage or support Mr Struhs in the decision and choice he made. Any influence in those respects, it was said, must have come from God, and Mr Struhs agreed with that proposition in his closing address. 

1.5 Overview of the Verdicts 

[28] Regardless of whether the other essential elements of the offence of murder were proved by the Crown, unless I was satisfied beyond reasonable doubt that, at some point between the time when the decision was made by Jason Struhs to cease the administration of insulin to Elizabeth (Monday, 3 January 2022) and the time when she died (Friday, 7 January 2022), he knew his failure to provide her with insulin and/or medical care and treatment would probably cause her death, Mr Struhs could not be guilty of murder. In this respect, it must be proved beyond reasonable doubt Mr Struhs knew of the probability, as opposed to the possibility, of death. Nothing less than a full realisation on his part that Elizabeth would probably die as a consequence of his failure to act would be sufficient to establish murder in this way, that is, murder by reckless indifference to her life. 

[29] Whether this element of the offence was proved to the requisite standard depended on an assessment of the subjective state of mind of Mr Struhs , and not on what a reasonable person might or would have foreseen as a probable consequence of his omission. As such, the test is not objective, and it does not matter that a reasonable person in Mr Struhs ’ position would have known Elizabeth would probably die. 

[30] For the reasons set out in Part 7.3, after a consideration of the whole of the evidence admissible against Mr Struhs , there remained a reasonable possibility that, in the cloistered atmosphere of the Church which enveloped Mr Struhs , and which only intensified once he made the decision to cease the administration of insulin, he was so consumed by the particular belief in the healing power of God promoted by its members that he never came to the full realisation Elizabeth would probably die, believing instead that God would not allow that to happen.  

[31] I was therefore not satisfied beyond reasonable doubt of proof of this essential element and, because all elements of the alleged offence must be proved before a guilty verdict may be returned, Mr Struhs must be acquitted of murder. I was, however, satisfied that Jason Struhs was guilty of manslaughter, for the reasons set out in Part 7.3. 

[32] Similar considerations applied in the case against Brendan Stevens for murder. Again, in his case, I could not be satisfied after a consideration of the whole of the evidence admissible against him that Mr Stevens was possessed of the requisite state of mind at any point between the time when the decision was made by Jason Struhs to cease the administration of insulin to Elizabeth and the time when she died. In that regard, proof was required that, at some point over the period under consideration, Mr Stevens knew that Mr Struhs knew that the failure to provide insulin and/or medical care and treatment would probably cause her death. As with Mr Struhs , whether this element of the offence was proved to the requisite standard depended on an assessment of the subjective state of mind of Mr Stevens, and not on what a reasonable person might have known about Mr Struhs ’ state of mind. My reasons for coming to that conclusion are set out in Part 7.4. The Crown not having proved that element of the offence of murder, Mr Stevens must be acquitted of that charge. I was, however, satisfied that Mr Stevens was guilty of manslaughter, again, for the reasons set out in Part 7.4. ... 

[106] Unsurprisingly, the duty owed by a parent to provide any child in his or her care with the necessaries of life is one of long-standing and, although there have been different formulations of the duty over time, the meaning has always been plain. 

[107] To take one case from England which was decided in 1898, The Queen v Senior, the accused was a member of a sect known as the “Peculiar People”. They were opposed on religious grounds to any recourse to medicines or medical treatment, believing that to do so would “indicate a want of faith in the Lord”. The accused’s child, an infant eight or nine months old, died of pneumonia. The accused, although a “good and kind father in all other respects”, refused to arrange assistance in the form of medicine or medical treatment for his child. The child’s life would have been prolonged, and likely saved, if medical assistance had been provided. The accused was convicted in the Central Criminal Court of manslaughter by criminal negligence. His conviction was based on a breach of a duty under the Prevention of Cruelty to Children Act 1894 which made it an offence to wilfully neglect a child in a person’s care in a manner which, relevantly, resulted in injury to health. On a case stated to the Queen’s Bench Division, the conviction was affirmed. In the course of doing so, the court rejected the notion that a conscientious objection on religious grounds could afford a defence and also emphasised that the standard of care required of a parent will vary as access to medical treatment improves. Lord Russell CJ stated:

Neglect is the want of reasonable care – that is, the omission of such steps as a reasonable parent would take, such as are usually taken in the ordinary experience of mankind – that is, in such a case as the present, provided the parent had such means as would enable him to take the necessary steps. I agree with the statement in the summing-up, that the standard of neglect varies as time went on, and that many things might be legitimately looked upon as evidence of neglect in one generation, which would not have been thought so in a preceding generation, and that regard must be had to the habits and thoughts of the time. At the present day, when medical aid is within the reach of the humblest and poorest members of the community, it cannot reasonably be suggested that the omission to provide medical aid for a dying child does not amount to neglect. 

[Counsel] contended that because the prisoner was proved to be an affectionate parent, and was willing to do all things for the benefit of his child, except the one thing which was necessary in the present case, he ought not to be found guilty of the offence of manslaughter, on the ground that he abstained from providing medical aid for his child in consequence of his peculiar views in the matter; but we cannot shut our eyes to the danger which might arise if we were to accede to that argument, for where is the line to be drawn? In the present case the prisoner is shewn to have had an objection to medicine; but other cases might arise, such, for instance, as the case of a child with a broken thigh, where a surgical operation was necessary, which had to be performed with the aid of an anaesthetic; could the father refuse to allow the anaesthetic to be administered? Or take the case of a child that was in danger of suffocation, so that the operation of tracheotomy was necessary in order to save its life, and an anaesthetic was required to be administered.”(Emphasis added).

[108] Grantham J, agreeing with Lord Russell CJ, added:

It may be asked, why should the line be drawn at drugs? A case might arise where it was necessary to apply an instrument where an injury had been suffered. To omit to do that would be wilful neglect. Or take the case of a fever, where quinine was necessary, or ice. Suppose the doctor were to say, ‘I know that if ice is applied the fever will abate’. Could the father refuse to allow the application of ice without being guilty of wilful neglect?” ... 

[642] It will be seen from what has already been covered in this Part that the belief held by the accused in the healing power of God went through quite a rapid revision as the circumstances changed around them. On Sunday, 2 January 2022, Jason Struhs declared Elizabeth had been healed as God had promised. His misinterpretation of her blood glucose results the following morning only served to reinforce his belief, and that of the other members of the Church, in that regard. Then, when Elizabeth fell ill the next day (Tuesday, 4 January 2022), and although there was speculation about the cause (some suggesting she was suffering insulin “withdrawal symptoms” and others maintaining they were witnessing “another little trial” by God), all members of the Church were united in the belief that Elizabeth either had been or would be healed, and that is in fact what they prayed for in the days and nights which followed. Then, when Elizabeth died on the morning of Saturday, 7 January 2022, they could of course no longer maintain a belief that Elizabeth would be healed. Instead, in the 36 hours they had available to them for contemplation, all appeared to pivot to a belief that God had “allowed” Elizabeth to die so that He could raise her from the dead and, in that way, show them a miracle to re-affirm their faith. However, by the end of that period, they came to the view that God must have instead intended for Elizabeth’s death and resurrection to have a much larger audience, and, for that reason, it was necessary to bring her death to the attention of the authorities so that they, too, could bear witness to her resurrection. This would, in turn, bring the miracle of Elizabeth’s death and resurrection to the attention of the World which was, many of them contended, in such a state of faithless degeneration. Ever since, the members of the Church have proclaimed Elizabeth will be raised from the dead in their lifetime. ... 

[683] I approached the assessment of the honesty and reliability of the versions provided by the accused to investigating police – whether in a recorded conversation or interview or in a police witness statement – with a degree of circumspection. There were a couple of reasons for this. 

[684] First, throughout the trial, I encountered several recurring themes in the versions provided by the accused and their closing addresses about significant events in the life of the Church. When asked about these events, several accused related them in a remarkably similar way, almost as though the event had become something of a parable to be revisited and retold as part of their faith as members of the Church. So, for example, the fact Elizabeth emerged from her hospitalisation and treatment in 2019 without some form of permanent disability was held out as the work of God and a miracle. Similarly, the prosecution, conviction and imprisonment of Kerrie Struhs in 2021 was seen as the work of God because it resulted in Jason Struhs joining the Church and being “healed of all his anger”, something that was also recounted as a miracle. Likewise, many accused spoke of Jason Struhs ’ decision to cease the administration of insulin as a “step in faith” and the hope for healing of Elizabeth as a “victory”. The point here is not only that these views were widely held, but they were held and spoken about in the same terms by many of the accused. The result was often a generalised account, easily digested and just as easily recalled. Although what one accused told police was not admissible in evidence against any other accused, this phenomenon of speaking in parables emerged clearly enough from a consideration of evidence admissible against all accused such as the s 93A interview of REK and, it might be added in the case of all accused other than Jason Struhs , the Tripodi evidence. I was therefore careful to ensure as best I could that I was acting on the particular accused’s genuine recall as opposed to something that was merely part of a narrative developed within the Church. 

[685] Second, there was a marked commonality in the justifications sought to be advanced by the accused for their conduct. One common justification was that Elizabeth did not want to be on insulin and they were, in that sense, acting in accordance with her wishes. It scarcely needs to be said that the wishes of an eight-year-old child, whatever they may have truly been, were entirely irrelevant to the proof of the charges before the court. Another was the fiction which was advanced to the effect they had done nothing other than encourage Jason Struhs to believe in God or, to like effect, that Jason Struhs was his own man and decided of his own accord to cease the administration of insulin. Those claims were made by several accused and rose to prominence in many of the closing addresses. The other frequent claim was that they were the subject of a religious persecution, despite the whole case being concerned with the refusal on the part of Jason and Kerrie Struhs to fulfil a duty cast on every person in this State who has the care of a child under the age of 16 years. Again, the point is not that many of the accused advanced the same justifications; it is that those justifications might have come from a jointly arrived position and, as such, may not have had a proper foundation in the evidence admissible against the individual accused under consideration. ... 

When assessing whether Elizabeth’s death was a reasonably foreseeable consequence of the failure to provide insulin and/or medical care and treatment to Elizabeth, I assessed what a reasonable person would have foreseen in the position of Mr Struhs , that is to say, a reasonable person of the same age, experience and knowledge of the same facts or circumstances as Mr Struhs , with ordinary fortitude and strength of mind (excluding attributes of a purely subjective type such as his religious beliefs). 

[766] Otherwise, the proven facts speak for themselves. Mr Struhs ’ failure constituted such an egregious departure from the standard of care a reasonable member of the community would observe in the same circumstances as to amount to a crime against the State that is deserving of punishment. Mr Struhs ’ complete abdication of the duty he owed to his child, viewed objectively, involved grave moral guilt and disregard for human life. It constitutes, at the very minimum, criminal negligence. Lastly, for the reasons previously expressed, Mr Struhs ’ failure was unlawful, no defence having been raised on the evidence. 

[767] Having already found to the required standard that Elizabeth is dead, I was for these reasons also satisfied beyond reasonable doubt that Mr Struhs caused her death in circumstances where: (1) he had a duty to provide medical care and treatment to her necessary for her life; (2) he breached that duty by failing to provide insulin and/or medical care and treatment to her; (3) her death was a reasonably foreseeable consequence of that failure; and (4) his failure was such as to amount to criminal negligence. Lastly, I was satisfied beyond reasonable doubt that Mr Struhs ’ failure to provide Elizabeth with insulin and/or medical care and treatment was unlawful. 

Conclusion [768] Jason Struhs is not guilty of murder but he is guilty of manslaughter.

Blasphemy

The Justice and Related Legislation (Miscellaneous Amendments) Bill 2024 (Tas) - passed and assented - amends Schedule 1 of the  Criminal Code 1924 (Tas) to remove the crime of blasphemy. 

The Bill amends s 12(1)(c) 'Prohibited language and behaviour' in the Police Offences Act 1935 by omitting “obscene, offensive, or blasphemous language” and substituting “obscene or offensive language”.

The accompanying note states .

Blasphemy provisions across Australia are not used (the last successful prosecution for blasphemy in Australia was in 1871) and the offence of blasphemy has already been abolished in Queensland and Western Australia. 

At common law this crime only pertains to statements in relation to Christianity, which is out of step with a modern and diverse community. Discriminatory behaviour toward a person or group of persons on the grounds of religious belief and affiliation is prohibited by the Anti-Discrimination Act 1998.

Burial Law

The Law Commission consultation paper noted in the preceding post includes a concise history of burial law in England and Wales

1.44 The history of burial in England and Wales can be described as a series of moves away from it being the sole preserve of the Church of England: toward first the nonconformist churches, and then toward private cemetery companies, municipal provision, and now, arguably, a second wave of private and religious burial grounds. 

Pre-nineteenth century burial custom and law 

1.45 As noted by historians, “for much of the mediaeval and post-mediaeval period the Church had dominion over the dead”. Until the nineteenth century, the Church of England was responsible for burials. Burials took place in churchyards, typically attached to the parish church, and were governed by ecclesiastical law.  All parishioners and inhabitants of a parish, and anyone dying within the parish, had (and continue to have) a right at common law to be buried in the local churchyard. 

1.46 Following the Act of Toleration in 1689 some Protestant Christian dissenters from the established Church of England obtained the right to worship freely, and began to establish their own places of worship, some of which included burial grounds. 

1.47 Burial grounds for other faiths begin to date from around this time. The earliest extant Jewish burial ground is “the Velho”, opened by the Sephardic community in 1657.  Dissenter and Quaker burial grounds were established in London following the great plague of 1665-66. 

1.48 One of the earliest laws on the depth at which bodies must be buried is a 1665 Order of the Lord Mayor and Aldermen of the City of London, stating that bodies must be buried at least six feet deep, in an attempt to stop the spread of the bubonic plague.  Later, Parliament ordered that only woollen shrouds or coffin linings could be used, to support the English wool industry. 

Early Victorian burial law 

1.49 The nineteenth century began to see a change in burial practices, sparked by significant increases in urban populations as England and Wales industrialised, which swiftly overtook the capacity of Anglican churchyards.  The situation was indeed dire – in many churchyards it was reported that coffins were “stacked [above ground] rather than interred, since there was no longer sufficient fresh earth for burial”. 

1.50 Academics have argued that the development of new cemeteries in the nineteenth century was spurred by these alarming circumstances, but not solely by them. Increasing calls for space for nonconformist burials were another cause, which would eventually result in the Burial Laws Amendment Act 1880, permitting burial in Church of England churchyards without the Anglican rites.20 So were concerns about the security of buried bodies against the activities of the “body-snatchers” – those who stole corpses to supply anatomists. 

1.51 First came a number of individual dissenter cemeteries. Some appear to have been established as companies through trust deeds, such as the first non-denominational cemetery in England in 1819, The Rosary in Norwich,  and later the Cottenham Dissenters Cemetery in 1846.  In cemeteries such as these, any burial rites could be used, and putting in place features to ensure the security of the bodies buried was seen as paramount. 

1.52 From the 1830s onward, legislation was often used to establish private cemetery companies. In the nineteenth century, companies law required a private Act to establish a limited liability joint stock company so that a commercial cemetery could operate without the exposure of individual investors to losses.An 1832 Act of Parliament, which incorporated the General Cemetery Company for the Interment of the Dead, encouraged the establishment of seven commercial cemeteries in a ring around London to serve its inhabitants; the first such cemetery was Kensal Green 

1.53 The Cemeteries Clauses Act 1847 was later enacted to provide a statutory code for the establishment and maintenance of cemeteries, which could apply to any specific legislation which incorporated it, as an attempt towards some standardisation. Many of these cemetery companies initially focussed on providing a “luxury burial service” to the burgeoning middle classes. But by the 1840s, the sanitary problems perceived in relation to churchyards led to the creation of a new type of cemetery, operated by public authorities under a statutory framework, rather than private companies. 

The Burial Acts 

1.54 In 1839, George Walker published Gatherings from Grave Yards, an exposé of the condition of graveyards of the time and, as its subtitle stated, containing “detail of dangerous and fatal results produced by the unwise and revolting custom of inhuming the dead in the midst of the living.” His book advanced the miasma theory, which held that emissions from graves were responsible for a host of deaths and diseases. The public health reformer Edwin Chadwick subsequently sought to reform burial law to address such concerns. 

1.55 The Public Health Act 1848, the first major piece of public health legislation in England and Wales passed at the urging of Chadwick, included only limited regulation of burial. It provided for the closure of burial grounds which were a danger to public health, but only if alternatives were available, and required the permission of the new national General Board of Health before new burial grounds were opened. 

1.56 In 1850, following a cholera epidemic which was blamed on the state of churchyards, the General Board of Health presented the Metropolitan Interment Act 1850. That Act provided for a single burial authority for London, with powers to open its own burial grounds, close existing churchyards and restrict other burials, and provide mortuaries – what has been described as an “integrated funerary and cemetery system”.However, the Act was viewed as imposing excessive regulation, and was swiftly repealed. 

1.57 In its place came the Burial Acts, beginning with the Burial Act 1852 concerning London, and the Burial Act 1853 which contained similar provisions relating to the rest of the country. These two Acts permitted the creation of local burial boards, if the ratepayers voted for them, with powers to borrow from the Public Works Loan Board to fund new burial grounds. Unlike the previous attempt at reform in London, they did not provide for centralised regulation or provision of burial space. 

1.58 Importantly, the Acts enabled the closure of burial grounds by an Order in Council, powers which were used to prohibit most burials in churchyards within the City of London and surrounding boroughs.   A Parliamentary Return in April 1854 shows how popular (and perhaps necessary) this ability to close churchyards and cemeteries was: Over sixty separate London parishes had sought an inspection, and burials had been discontinued in the vaults of over 50 churches and chapels, interments had been immediately ceased or were planned to come to an end in the near future in over 70 churchyards and chapel burial grounds, and over 30 burial grounds – including some sites attached to schools, workhouse and hospitals – were also closed. The process of churchyard closure was by no means restricted to London. 

1.59 The first two Burial Acts also provided for the Secretary of State to make regulations governing such burial grounds, which in some ways resemble modern local authority cemetery laws. 

1.60 These Acts were followed by a number of further Burial Acts. These amended the powers of the burial boards, as well as providing limited powers to the Secretary of State to regulate cemeteries and exhumations.The Public Health (Interments) Act 1879 also created a parallel system which enabled local sanitary authorities to bypass the need to create burial boards, and simply set up their own cemeteries using the template of the Cemeteries Clauses Act 1847. Unlike burial board burial grounds, these did not need to be consecrated. 

1.61 Further Acts in the latter half of the nineteenth century regulated other aspects of burial. The Registration of Burials Act 1864 created a requirement for all burials to be registered, and the campaigns by non-conformists to access burial in Church of  England churchyards without Church of England rites culminated in the Burial Laws Amendment Act 1880. 

1.62 Finally, the Disused Burial Grounds Act 1884 protected disused burial grounds from development, alongside the Open Spaces Acts 1887 and 1906 which enabled their conversion into parks and green spaces. It has been argued that the two developments were linked, with the bar on other development “eliminating the competition” for the use of burial grounds as public spaces.

Twentieth century reforms 

1.63 Following the high volume of legislation on burial in the nineteenth century, little reform was undertaken in the first half of the twentieth century, aside from the Welsh Church (Burial Grounds) Act 1945. That Act resolved the status of burial grounds of the Church in Wales, following disestablishment over two decades prior. 

1.64 The second half of the century saw a major change. The Local Government Act 1972 simplified public provision of burial space significantly by ending the system of burial boards and repealing most of the Burial Acts. Instead, parish councils and first-tier councils were empowered to provide cemeteries.  Secondary legislation was passed to regulate these cemeteries.  Another more minor change was the introduction of exceptions to the ban on developing over burial grounds. 

The Church in Wales 

1.65 The history of the law of burial in Wales is the same as in England until the disestablishment of the Anglican Church in Wales in the early twentieth century, at which point the position diverges. The Church in Wales was formally created in 1920, under the provisions of the Welsh Church Act 1914. This Act caused the ecclesiastical law of England to cease to operate in Wales. The Church in Wales is governed by pre-disestablishment canon law as amended by its own procedures.  However, burial is one of the two areas where the Church in Wales continues to be  affected by the consequences of having been formerly part of the established Church of England (the other being marriage). 

1.66 Church property in Wales thus ceased to have “owners”. This problem was resolved by granting members of the disestablished Church in Wales the power to appoint representatives to hold property for the newly established Representative Body of the Church in Wales, a charitable trustee corporation incorporated by Royal Charter. 

1.67 Before disestablishment, parishioners or people who died within a parish were entitled to be buried in the relevant parish churchyard, irrespective of their adherence to the Church of England (which before disestablishment extended to Wales). This remains the position in England. With the disestablishment of the Church in Wales, there had to be some assurance that public rights of burial would continue to be respected.  The 1914 Act achieved this continuity by requiring the ownership of a churchyard to be transferred to the local authority when an incumbent of the parish died or retired,  although in many cases local authorities did not accept them. 

1.68 What resulted from the 1914 Act was a confusing division of ownership – some burial grounds were owned by parish incumbents, some by local authorities, some closed burial grounds may have been transferred to the Representative Body of the Church in Wales, and some remained vested in the Welsh Church Commissioners, a body created to effect the disestablishment.  Eventually, the Welsh Church (Burial Grounds) Act 1945 was passed, and these automatic transfers to local authorities stopped.  Now, most Church in Wales burial grounds are vested (by virtue of the 1945 Act) in the Representative Body of the Church in Wales, which is responsible for their maintenance,  with no contribution made by the state to their costs. 

1.69 The 1945 Act also empowered the Church in Wales to make rules regarding public rights of burial.  These rules must now be approved by Welsh Ministers, to avoid discrimination against people who are not members of the Church, but may be different to provisions made by local authorities for their cemeteries.  The 1945 Act also now requires the Welsh Ministers to set fees for burial. 

1.70 The area affected by the disestablishment of the Church in Wales is not exactly the same as the nation of Wales. At disestablishment, a number of Church of England parishes straddled the border. Section 9 of the Welsh Church Act 1914 provided for the views of parishioners to be taken into account in deciding whether to disestablish the church in those parishes. Only one voted to join the Church in Wales, meaning that there are 18 parishes which are part of the Church of England, but located in Wales; and Llansilin parish of the Church in Wales is partly in Shropshire, which is in England (but its church, St Silin’s, is located in Wales). 

Recent developments 

1.71 The result of the development of burial law over the centuries is that burial is now a diverse sector, with broadly a tripartite division between Anglican, local authority, and private burial grounds – and with further divisions within that, such as between the Church in Wales and Church of England, between private cemeteries established by an Act of Parliament and those which were not, and so on. 

1.72 Nothing has fundamentally altered that structure since the 1970s, but the late twentieth century has seen some further changes. One is the creation of natural burial grounds. Natural burial describes a range of burial practices which seek to minimise environmental impact, and often to create or preserve a habitat for wildlife.  Most commentators on natural burial grounds cite a dual purpose: avoiding the perceived ecological negative impact of traditional burial, alongside conserving land by creating new wild spaces. 

1.73 The first modern natural burial ground in England and Wales was opened by Carlisle City Council in 1993. The Association of Natural Burial Grounds states that there are now over 270 natural burial grounds in the UK.69 Natural burial grounds may be operated by local authorities, private operators including charitable trusts, or the Church of England. 

History of cremation 

1.74 Cremation was not typically practised in the UK before the nineteenth century. Christians did not favour it, given their belief in the resurrection of the body. In addition, it may have had associations with Pagan treatment of the body (being practised by the Greeks and Romans).  However, the end of the nineteenth century saw the increasing emergence of cremation when it was encouraged as a more sanitary funerary method (including by the surgeon to Queen Victoria, who had been impressed with a model cremating apparatus he saw at the Vienna Exposition in 1873). 

1.75 When cremation first emerged in the nineteenth century, it was not clear that it was permitted under the law. An 1884 criminal case found that cremation (meaning simply burning a body) was legal so long as it did not amount to a public nuisance or prevent a coroner’s inquest.  An initial attempt was made, at the instigation of the Cremation Society, to introduce a Bill enabling the regulation of cremation, but this was opposed by the Government and the Opposition. 

1.76 A number of local Acts of Parliament were then passed enabling councils or corporations to establish crematoria. This continued until the Cremation Act 1902 was enacted, creating a regulatory system which allowed all burial authorities to establish crematoria, as well as governing how private crematoria should operate. 

1.77 However, cremation did not become commonplace until the second half of the twentieth century. The subsequent growth of cremation to become the most common funerary method has been attributed to the increasing secularisation of society, certain religious faiths (including Catholicism) ending earlier prohibitions against it, urbanisation, limitations on space, and lower costs than burial. 

1.78 The twenty-first century has seen the introduction to England and Wales of “direct cremation”, which is when a cremation takes place without a concurrent funeral service. This had been seen as a legitimate funerary choice for many years prior in the USA and Australia. The proportion of cremations which are direct cremations has risen quickly since their introduction. Academics have noted that the “purest” form of a direct cremation might involve the body being cremated with no-one in attendance, but that the direct cremation packages now sold by providers may include elements of attendance.  In any case, family and friends may choose to have a memorial service separate to the cremation. 

1.79 Research suggests that those who choose direct cremation do so for a mix of reasons, including: to effect a compromise between family members or where other plans could not be carried out; being able to control the arrangements and attendees, as opposed to the lack of control involved in an open public cremation service; and to be consistent with a person’s beliefs or attitudes toward the body after death. 

New funerary methods 

1.80 The most recent development has been the invention of new funerary methods, with two, alkaline hydrolysis and human composting, currently in use in other jurisdictions, such as a number of US states. Alkaline hydrolysis is a process which uses water, alkaline chemicals, heat and pressure to break down the body.  Human composting involves keeping a body in a controlled environment which is optimised so that the body’s own microbiome can break down the remains into soil much more quickly than in a burial. 

1.81 As these methods will be explored in detail in a forthcoming Law Commission consultation paper, we do not discuss them further here.

DATA ON BURIAL AND CREMATION 

1.82 In 2023, the latest year for which data is available, there were 581,363 deaths registered in England and Wales. In response to a freedom of information request in 2023, the Office for National Statistics confirmed that there are no centralised statistics on the proportion of people who are buried or cremated.  Data is collected on cremation by the Cremation Society, but for burial, sources such as ad-hoc surveys are all that is available. 

Cremation 

1.83 The Cremation Society is a charity which was founded in 1874 to promote and establish the practice of cremation. It collects statistical information from every crematorium in the UK. The first cremation it records was on 26 March 1885 at Woking, of Mrs Jeanette Pickersgill. In that year three cremations occurred. By 1947 over 10% of deaths resulted in a cremation, and there were 58 crematoria in operation across the UK. The proportion of deceased people cremated rose to 50% in 1967, and 70% by 1987. 

1.84 By 2022, there were 322 crematoria operational in the UK. 477,629 people were cremated in 2022, amounting to 82% of all deaths in that year.   The cremation rate has continued gradually to increase over time in the twenty-first century, as shown in figure 1 below. 

1.85 Other data provided by the Cremation Society provides tells us about trends in what occurs in crematoria. There has been a shift towards crematoria providing longer slots for the service as part of a cremation, for example, with four in ten providing hour-long slots in 2023, compared with 7% in 2007. 58% provide specific facilities for religious groups, compared with just 17% in 2008. Fees for the cremation itself vary by crematorium, from the highest of £1,400 at the Harwood Park Crematorium in Stevenage to the lowest of £497 at the City of London’s crematorium in east London. 

1.86 According to a SunLife report, in 2023, 20% of people chose to use direct cremation, with 39% saying that this was following a request from the deceased person, and 30% saying it was quicker to organise. However, 18% said they chose it as the funeral took place during COVID-19 restrictions, while 12% said they could not afford an alternative option. 33% of those who organised a direct cremation said they had a wake afterwards, while 27% held a memorial service, and 18% held both. 

Burial 

1.87 Based on the Cremation Society’s data, 18% of deaths in England and Wales in 2022, or 101,989 deaths, did not result in a cremation. All but a very small minority of those will have resulted in burials. Aside from data on the number of burials, an important area for data collection is in relation to where burials happen and the amount of space which is available for future burials. Such data is based on occasional surveys, but each such exercise has suggested that burial space is likely to run short in some places in the near future, a concern which is relevant to the aims of law reform as explored in this Consultation Paper. 

1.88 This data is set out in more detail in Chapter 14. In brief, a Government survey from 2007 estimated that there are between 16,000 and 18,000 Church of England burial grounds and 2,000 Church in Wales burial grounds. Around 2,000 local authority and 900 other burial grounds also responded to the survey. However, far more burials were made in the local authority burial grounds surveyed: 761,500 compared with 222,100 in the Church of England and Church in Wales burial grounds. The median time before burial grounds were full was 30 years in local authority and 25 years in Church of England and Church in Wales burial grounds. 

Cost of funerals 

1.89 Data on the cost of funerals indicates a significant increase over the last few decades, with rises continuing. The annual SunLife Cost of Dying report has found that the cost of a basic funeral rose from £3,953 to £4,141 from 2022 to 2023. These costs have risen 126% since their first report in 2004, outpacing inflation.British Seniors’ funeral costs report finds that a burial plot costs on average £1,107, burial fees £1,229, and cremation fees £1,383, although no comparison is made year-on-year. 

1.90 The link between the lack of available burial space and the cost of burial may not be straightforward and has not been rigorously assessed. Only certain elements of the cost of a funeral will also be within the scope of law reform in this project. However, it is conceivable that the former may have an impact on the latter. In addition, understanding the current costs to consumers of funerary methods is important for any law reforms which could impact on those costs. 

WIDER LEGAL CONTEXT 

1.91 This part of the chapter sets out in brief some areas of law which are not necessarily within scope of this project of law reform, but which are relevant context for consideration of the areas which are in scope. 

Ecclesiastical law 

1.92 The Church of England (or the Anglican Church of England) is the established church of England. “Establishment” is an elastic concept, so what it means in any given jurisdiction varies. Generally, it “refers to a formal relationship between a church and  the state in which it operates”.The relationship between the Church of England and the state has several formal elements within the United Kingdom: in relation to the monarchy (the role of the Sovereign in the Church); the executive (the role of the Prime Minister in ecclesiastical appointments); the judiciary (the operation of the ecclesiastical courts); and the legislature (the representation of the Church in the House of Lords, the Church Estate Commissioners, and the passing of ecclesiastical law).  It is the relationship with the judiciary, the ecclesiastical courts, and the legislature, in the role of ecclesiastical laws, which are most relevant to this project. 

Ecclesiastical courts 

1.93 The jurisdiction of the ecclesiastical courts is governed mainly by the Ecclesiastical Jurisdiction and Care of Churches Measure 2018. The ecclesiastical courts which are relevant to burial law are the consistory courts of each diocese, and the appeal courts: the Arches Court for the Province of Canterbury (the south of England, broadly), and Chancery Court in the Province of York (the north). These courts together hear applications for a type of decision called a “faculty” in order to permit changes to churches and churchyards, and appeals on such cases. 

1.94 In the consistory court, a case will be heard by a chancellor, a judge who is appointed by the bishop of the diocese.They must meet the requirements for secular judicial office. 

1.95 Faculties are required in order to alter the fabric of a church or churchyard, unless such changes are in a list of permitted minor works.  A faculty is required to issue an exclusive burial right in a churchyard, to permit an exhumation, and for gravestones which are outside of diocesan regulations.  Carrying out changes requiring a faculty without securing one could result in a civil action for trespass, or a criminal prosecution under the Criminal Damage Act 1971.   The consistory court can also  issue injunctions to prevent breaches of ecclesiastical law, and restoration orders to remedy such breaches, and failure to comply with them is a contempt of court. 

Ecclesiastical laws 

1.96 Although the Church of England has autonomy over matters of worship and doctrine, it is otherwise subject to Parliament. It has been described as a “Parliamentary Church”.The laws that apply to the Church are both ecclesiastical law and laws of general application. As stated by Mark Hill KC: The Church of England, through its constituent parts, is subject to a variety of laws, rules, and norms, some imposed by the state, some made by the church with the concurrence of the state, and others created internally by the church itself at national, provincial, or diocesan level.

1.97 The Church of England can submit legislation to Parliament in order to govern its affairs – these are called “Measures”, and must be passed by both Houses of Parliament in order to become law.  Measures can deal with any Church of England matter, and can amend or repeal other Acts of Parliament.   It has been suggested that there is a convention that the government will not legislate on areas entirely internal to the Church of England without the Church’s consent, although Parliament continues to legislate in areas of general application which affect the Church. 

 Local government structures in England and Wales 

1.98 As set out in detail in Chapter 14 on the impact of our proposals, local government in England and Wales provides a significant proportion of burial space, and councils are the main operators of crematoria. The structures of local government differ in the two countries. 

1.99 In England, structures of local government have been described by the Local Government Association as “complex and often baffling”.  Parish and town councils are the lowest tier of governance in England.   They cover 91% of the geography of England, but just 36% of the population. This is because urban areas often do not  have them, as a result of the complexities of past reorganisations.  Where a parish does not have an elected parish council, it still has a parish meeting where parish affairs can be discussed and which can exercise some functions.  Both parish councils and parish meetings can open and operate cemeteries, and parish councils can operate crematoria. 

1.100 The next tier of local government in England varies. Councils at this level are called “principal” authorities. Some parts of the country have a two-tier system, with a county council providing some services and smaller district councils below them providing others. In these cases, it is the district councils who have the power to open and operate cemeteries and crematoria. In others there is just a unitary council, which will have those powers. 

1.101 Wales has a simpler system. There are 22 principal local authorities, styled as either counties or county boroughs. Each is then divided into smaller “communities” which may have a community council – there are currently over 730 of them.Both community councils and principal local authorities can open cemeteries and crematoria. 

The law that applies between death and a funeral 

1.102 This section sets out a timeline of the law and practice which applies from the point of someone’s death up until a funerary method is used. As we note, at a number of points there are choices to be made by those who are responsible for the body of the deceased person, or by public bodies they come into contact with. That means there is no one fixed “route” for things to take after a death happens. 

Registering the death 

1.103 Every death must be registered within five days in the register of the sub-district in which the death occurred by the registrar of births and deaths, unless it is referred to the coroner. A doctor who treated the deceased person during their lifetime will propose a cause of death, which will be independently scrutinised by a medical examiner (see below). An agreed cause of death will be recorded on a medical certificate of cause of death and delivered to the registrar, or the death will be  referred to the coroner if appropriate. Details of the death and the deceased person must be entered onto the register by the registrar. The entry must then be signed by the informant, that is, a person qualified to provide information to the registrar by virtue of, for example, their relationship with the deceased person or proximity to the death. 

1.104 The registrar will then issue a death certificate, also known as a certificate of registration, and a certificate for burial or cremation, also known as the “green form”. The certificate for burial or cremation must be passed onto the person conducting the burial or cremation to enable it to take place. If the death has been referred to the coroner, a coroner’s order, rather than a certificate for burial or cremation, is required for the burial or cremation to take place. 

1.105 There is an exception to the above process if burial is sought, which is set out in Chapter 5. 

1.106 There has been an increase in the time taken to register deaths in recent years. The median time between a death occurring and being registered in England and Wales was seven days for deaths registered in 2022, two days more than in 2021. While the issue of death registration is outside the scope of this project, we have heard from stakeholders, particularly those from religious communities whose faith requires a quick burial or cremation, that such delays have a negative impact. 

The medical examiner system 

1.107 Government has introduced a statutory medical examiner system to provide independent scrutiny of the cause of death for deaths which are not referred to the coroner. The system came into force on 9 September 2024. 

1.108 Medical examiners are senior doctors who are responsible for agreeing the proposed cause of death with the doctor completing the medical certificate of cause of death. The medical examiner system applies to deaths which are not being investigated by a coroner, regardless of whether the body is to be buried or cremated. This means that all deaths are subject to the scrutiny either of a medical examiner or a coroner. 

1.109 A detailed explanation of the law surrounding medical examiners is set out in Chapter 10. 

The involvement of the coroner 

1.110 Coroners have a duty to investigate deaths reported to them where the body lies in their area if they suspect that the death was violent or unnatural; the cause of death is unknown; or the deceased person died while in custody or other state detention.Coroners can undertake preliminary enquiries to determine whether this duty arises. 

1.111 The registrar of the sub-district in which the death occurred must report deaths to the coroner in certain circumstances.The duty to report a death to the coroner can also fall on someone other than the registrar. In that case, the registrar must satisfy themself that the death has been reported to the coroner, or they must report it themself. 

1.112 Once the coroner has determined that the duty to investigate arises, the purpose of the investigation is to ascertain who the deceased person was; how, when and where the deceased person died; and the particulars needed to register the death.  As part of the investigation, an inquest can take place.  An inquest is an inquisitorial hearing to determine the answer to the above questions. 

1.113 The coroner can order a post-mortem to determine if their duty to investigate arises, or as part of the investigation itself. 

1.114 The registrar must not register a death that has been reported to the coroner before they receive either a coroner’s certificate after an inquest or notification that there will not be an inquest. 

1.115 The coroner must release the body of a deceased person for burial or cremation as soon as reasonably practicable.  A coroner’s order is required before burial or cremation can take place. This can only be issued once the coroner no longer needs to retain the body for the purpose of an investigation.

Using a funeral director 

1.116 A person organising a funeral will need to decide whether to use a funeral director – doing so is not a legal requirement. According to a survey by the insurer British Seniors, nine out of ten people choose to do so. 

1.117 The responsibilities of the funeral director are governed by contract law.  There is no specific regulator for funeral directors; however, the National Association of Funeral Directors and the National Society of Allied and Independent Funeral Directors provide and enforce voluntary codes of conduct.  In addition, the Competition and Markets Authority have by order required that funeral directors disclose certain price and commercial information, and refrain from entering certain anti-competitive arrangements. 

1.118 Delays in the death care sector have caused significant issues for funeral directors and their clients. In 2023, the National Association of Funeral Directors published research into delays between deaths and funerals. They found that there are delays with registering a death by the registrar, bodies being released by coroners, and the production of medical certificates of cause of death. 

Choosing a funerary method 

1.119 The deceased person’s personal representative is responsible for making funeral arrangements. Reasonable funeral costs can be recovered from the deceased person’s estate. 

1.120 Social fund payments, called Funeral Expenses Payment, are available for people if they meet certain eligibility criteria, to provide financial assistance towards the cost of a funeral.   These payments are also recoverable from the deceased person’s estate.  Non-means tested support is available for the funerals of children aged under 18 or stillborn babies from the Children’s Funeral Fund for England, and the similar scheme in Wales. Local authorities are also under a duty to bury or cremate the body of any person who has died or been found dead in their area if it appears that no suitable arrangements are being made.  These “public health funerals” will be considered as part of our third sub-project on this issue, Rights and Obligations Relating to Funerals, Funerary Methods, and Remains. 

1.121 There are also charities which provide financial assistance for funerals. For example, the Muslim Burial Fund provides financial support for the burial of Muslim people. 

PERPECTIVES ON FUNERARY PRACTICES 

1.122 The funeral practices of people who follow each of the different faith traditions in England and Wales, or none, are rich and diverse – too diverse fully to capture in this Consultation Paper. Instead, we set out in brief some of the beliefs and practices which particularly relate to the funerary methods used by some of the major faiths in England and Wales as these are the considerations most relevant to this law reform project. 

Christianity 

1.123 Neither of the two major Christian denominations, the Church of England and Church in Wales (the Anglican churches) and the Roman Catholic Church require either burial or cremation. However, the doctrine in both churches requires that ashes from cremation are buried or strewn in ground consecrated (in a religious, but not legal sense) by the relevant church. We have been told that in some other traditions, such as those of the Orthodox Churches, cremation is not permitted. In other Christian denominations, including nonconformist traditions such as Methodism, cremation is acceptable and there are no rules on what should happen to ashes. 

1.124 Other aspects of the interaction of burial law and Anglicanism are explored in sections on ecclesiastical law and the Church in Wales above. 

Islam 

1.125 Muslims believe that death comes at God’s decree – this shapes the way that they mourn their dead, and the funerary methods that they use. It is rare for funeral directors to be involved in Muslim funerals and funeral procedures; typically, the entire process is supported by the community of the deceased person. Muslims follow a strict procedure after a person’s death. The body is prepared for burial as quickly as possible, starting with the washing of the body, which is done by family members of the same sex as the deceased person. Once prepared, the body will be taken to the mosque for the funeral ceremony and the body will be buried, with the head of the body facing Mecca.  Ideally, the deceased person will be buried within 24 hours of their death. 

1.126 Whereas many Christian denominations accept cremation, Islamic beliefs prohibit it. The preservation of the dignity of the body, spiritually and physically, is seen as crucial; if the body is to be resurrected, it must be fully intact.  The Qur’an gives specific directions that the dead should be buried.  There are a number of Muslim burial grounds in England and Wales, the largest of which is the Gardens of Peace in North East London, as well as Muslim sections in many local authority cemeteries. 

1.127 There was concern during the COVID-19 pandemic that this strict prohibition on cremation continue to be observed, despite the increasing death rate worldwide. In England and Wales, an early draft of the Coronavirus Act 2020 contained provisions that may have allowed local and national authorities to decide if a person was cremated or buried – for some faith groups, including Muslims, the idea that cremation may be forced upon them was a direct affront to a core religious belief. The  Coronavirus Act 2020 was amended before it was enacted to reflect these concerns. 

Judaism

1.128 In Orthodox Judaism, burial is a strict requirement, but the Liberal and Reform movements also permit cremation. Orthodox Jewish funerals are also generally stricter in their requirement that burials must take place as quickly as possible, and usually within 24 hours (although not on Shabbat or most Jewish holidays).  Bodies are ritually washed by people of the same sex as the deceased person (called tahara), and then buried in a simple, biodegradable coffin. After the funeral a week-long mourning period, or shiva, is observed. 

1.129 Many Jewish people will pay dues to belong to a burial society. Burial societies are operated both for particular synagogues and for groups of synagogues (including the United Synagogue, the largest organisation of synagogues in Orthodox Judaism). Members pay dues throughout their lives, and when they die their funeral costs are covered. Many burial societies own their own burial grounds, but not all do. 

Hinduism 

1.130 Hindus view the body and soul as pure, and believe that when a person dies, the soul leaves the body and re-enters a new one.  The driving belief behind Hinduism is that the body will reincarnate as many times as it takes for an individual to achieve moksha – a state of unity between body and soul that will end the cycle of reincarnation.  Cremation is believed to help the soul leave the body to enter the new body, thus encouraging the reincarnation process. As a result, cremation in Hindu funerals is seen as an important part of severing the tie between one body and the next, and thus is the traditional funerary method used by Hindus. The only bodies that would not be cremated, traditionally, are infants and young children (below the age of eight, when adulthood is believed to begin).  Children this young are considered “without sin”, and thus do not need to be purified by cremation.  Issues relating to traditional Hindu cremations on open-air pyres are explored in Chapter 1  

Sikhism 

1.131 For Sikhs, cremation is the preferred method as it helps release the soul from the body.  The “Sikh Reht Maryada”, a code of conduct for Sikhism, states that bodies should be cremated, but if this cannot be done, other methods are acceptable. After death the body should be bathed, while remaining dressed in the Sikh symbols. The ashes from cremation should be placed into flowing water or buried with no monument. The Guru Granth Sahib, the Sikh holy scripture, is read in its entirety after the funeral. 

Buddhism 

1.132 Buddhists will often choose cremation over other funerary methods, to follow in the footsteps of the Buddha, who was himself cremated. However, this is not a religious requirement, as Buddhism has no strict rules about the funerary method that should be used. 175 We have been told by a Buddhist stakeholder that the belief that the consciousness and physical body separate upon death means that Buddhists do not require a specific funerary method in order to facilitate reincarnation or passage to an afterlife. 

Other faiths and perspectives 

1.133 Other religious faiths in England and Wales have beliefs which affect the funerary methods used. Baháʼís require burial rather than cremation, and for this to happen within a short distance of the place of death. Followers of Paganism do not have a single shared set of beliefs about death, but are likely to seek methods that reflect their veneration of nature. 

DEVOLUTION TO WALES AND FUNERARY LAW 

Legislative competence and reforms to burial and cremation law 

1.134 The law on burial and cremation was explicitly included within the areas over which the Welsh Assembly had legislative competence in the Government of Wales Act 2006, as originally passed.  Following the move to a reserved powers model,  neither burial nor cremation, nor matters which could be taken to refer to new funerary methods, are listed as matters which are reserved to the UK Parliament. That means that the Senedd has competence to legislate in relation to them.   Enacting reforms to primary legislation in these areas would require either an Act of the Senedd, or a legislative consent motion from the Senedd should the Westminster Parliament legislate. 

1.135 Some issues which are relevant to the context of this review are reserved, such as death registration and certain aspects of water and sewerage regulation. 

Secondary legislation and executive functions 

1.136 The functions of Welsh Ministers refer to a combination of the powers they are given to act by legislation and common law, and their ability to make secondary legislation (for example, regulations and orders) as given by primary legislation. 

1.137 A number of Acts relevant to burial and cremation law have had their functions transferred to Welsh ministers. They are listed below, along with the relevant provisions that have been transferred: (1) Burial Act 1853 (section 1, making representations for a closure Order; section 4, granting licences to bury in vaults; section 5, permitting new burial grounds); (2) Burial Act 1855 (section 8, inspection of burial grounds); (3) Burial Act 1857 (sections 10 and 23, Orders for regulating common graves and to prevent burial grounds becoming hazardous, but not section 25, governing exhumation); (4) Burial Act 1859 (section 1, directing the local authority to complete acts ordered under an Order in Council); (5) Open Spaces Act 1906; (6) Welsh Church (Burial Grounds) Act 1945 (section 4, approving rules for burial); (7) Cremation Act 1952 (section 1, certifying new crematoria, section 3 governing fees for medical certificates); (8) Local Government Act 1972 (section 214, orders for the management, regulation and control of burial authorities); (9) Public Health (Control of Disease) Act 1984 (section 46(7), inquiries necessary for the purposes of public health funerals);184 and (10) Town and Country Planning Act 1990 (the powers which relate to the Town and Country Planning (Churches, Places of Religious Worship and Burial Grounds) Regulations 1950). 

1.138 The effect of the transfer of these powers is that the functions of a Minister of the Crown under those Acts are transferred to the Welsh Ministers, as far as they relate to Wales. 

1.139 This includes the power to make statutory instruments. That means, for example, that the Welsh Ministers could make an order for Wales under section 214 of the Local Government Act 1972, replacing the Local Authorities’ Cemeteries Order 1977 (“LACO 1977”).  If this review were to recommend reforms to LACO 1977, amendments to the order for Wales would need to be made by the Welsh Ministers. 

1.140 Other functions which relate to burial and cremation have not been transferred to the Welsh Government in this way. Notably, the Cremation Act 1902 does not appear to be an Act in relation to which functions have been transferred, hence instruments such as The Cremation (England and Wales) (Amendment) Regulations 2022 have been made solely by the UK Secretary of State. 

1.141 The function of issuing exhumation licences under section 25 of the Burial Act 1857, was also excluded from the transfer of functions. However, broadly speaking, reforms to the Cremation Act 1902 and Burial Acts themselves remain within the Senedd’s legislative competence, meaning that the Senedd could legislate for Welsh Ministers to take over those functions. 

TERMINOLOGY 

1.142 When we agreed with the Lord Chancellor to take on this project as part of our 13th Programme of Law Reform, it was under the title “A Modern Framework for Disposing of the Dead”. The fact that we have changed it to its current title, Burial, Cremation and New Funerary Methods indicates the extent to which language matters when it comes to death and dying. A number of different stakeholders told us that they disliked the term “disposal” in this context, and so we have chosen not to use it, unless we are quoting a source that does. 

1.143 In order to achieve this, we have used the term “funerary method” to describe the act of burial, or cremation, or indeed the new funerary methods such as alkaline hydrolysis and human composting which will be explored in a forthcoming Consultation Paper as part of this project. That term is in use, but it is not commonplace. However, we think that it is a useful addition to the lexicon. 

1.144 We have sought to avoid some other forms of language where we are aware they can cause offence or be viewed as problematic. For example, we avoid referring to “the deceased”, instead of which we prefer “deceased people”, “deceased person” or other formulations. Similarly, we do not use the phrase “loved one”, which presupposes how people feel about the person who has died. We are indebted to the “#DeadGoodWords” campaign started by Poppy’s Funeral Directors for their steer on careful consideration of our language in this project. 

1.145 This project often engages with issues relating to ecclesiastical law, which carries its own terminology with which some readers will not be familiar. We have chosen to use that terminology rather than use longer explanations of its meaning, as in some cases, such as the term “incumbent”, a shorter description may not be accurate. The Glossary at the end of this Consultation Paper defines many of these terms. 

1.146 We use burial grounds as a neutral term for all such sites, regardless of who operates them. We describe those operated by the Church of England as churchyards for brevity, although the law which applies to them also applies to Church of England burial grounds which are not located alongside a church. Local authority burial grounds are described as cemeteries in statute, so we use that term, as we do for private cemeteries which are established by private Acts of Parliament. 

Ends

The Law Commission's Burial and cremation Consultation Paper comments 

1.1 Approximately half a million people die in England and Wales each year, and each death will affect the lives of many other people. Those bodies will almost all be buried or cremated, using cemeteries or crematoria operated by local authorities, churches and other faith groups, or by private companies: these groups are part of the wider death care sector, alongside funeral directors, monument masons, and others. 

1.2 That sector has experienced significant turbulence in recent years. The COVID-19 pandemic has led many of us to think more often about mortality. COVID-19 also brought into focus the role that different religious perspectives have in framing grief, for example when religious groups campaigned for Government to ensure that beliefs about funerary methods were respected. 

1.3 The sector has also been subject to a number of investigations and reforms in recent years, from the Competition and Markets Authority’s review of funeral directors and crematoria to the introduction of statutory medical examiners. Not all of these changes are in scope of this project, but we are conscious that the sector has experienced an unusual degree of scrutiny and review, of which this project forms one part. 

1.4 We are publishing this Consultation Paper against a backdrop of change in the sector. But the picture is also one of overdue reform. Much of the legislation governing cemeteries in general still dates from the second half of the nineteenth century. Private burial grounds are broadly unregulated. Elements of cremation law are over a century old. Reports have repeatedly found that burial grounds are close to capacity. We are aware in reviewing burial and cremation law of both the urgency for reform and the pressures facing the death care sector. ... 

Terms of reference 

1.13 The full terms of reference for all three sub-projects are included as Appendix 1 to this Consultation Paper. Some issues are identified in those terms of reference as being outside of the scope of this project. They are: (1) death certification and registration; (2) the regulation of funeral directors; (3) the Church of England’s common law duty to bury parishioners and those who die in the parish; (4) regulation of methods of preservation of human remains; (5) burial at sea; (6) planning and environmental law; (7) other issues relating to body parts, such as organ donation, post-mortem reproduction and police investigations; and (8) criminal offences that may be committed in relation to human remains, including in relation to desecration. 

1.14 The reasons for excluding issues from the scope of the project vary. Some, like planning and environmental law, organ donation, and death registration, are part of their own wider legal framework, which it would be inappropriate for this project to reform piecemeal. Burial at sea has a separate legal framework which is intertwined with its naval history, so we did not view it as appropriate for inclusion. The criminal law in relation to dead bodies raises distinct issues which would not be appropriate for consideration in a project focused on burial and cremation law. 

1.15 A number of these issues are reviewed in brief in the section starting at paragraph 1.102 below, so far as an understanding of them is useful for context to our consideration of reform to the law on funerary methods. 

1.16 The regulation of funeral directors is not in scope of this project as it is a separate issue to the regulation of the funerary method itself. It is also an issue which has recently been investigated by the Competition and Markets Authority. ... 

THE CASE FOR CHANGE 

The state of current law Regulation of burial grounds 

1.21 Burial law has developed piecemeal since the beginning of the nineteenth century. The result is that local authority cemeteries are governed by detailed legislation. Church of England churchyards are governed by a mix of legislation and the jurisdiction of the ecclesiastical courts. Some older private burial grounds were established under their own private Acts of Parliament, but for many others, and all newer ones, there is little regulation at all. 

1.22 That means that in many private burial grounds and in Church of England churchyards there is nothing in place to govern how bodies should be buried. There are different standards to which burial grounds should be maintained by local authorities, the Church of England, the Church in Wales or where a private Act of Parliament applies, and none which apply to other private cemeteries. In the rare cases where there are problems in private cemeteries, that can result in it being difficult for Government to take action to enforce standards. 

1.23 Similarly, there is no requirement for private burial ground operators or the Church of England to keep a record of the grant of burial rights, or for private burial grounds to issue burial rights in writing. That can result in distress to bereaved people as a result of mistaken burials, or people paying for burial rights only to be unable to locate the burial plot over which rights have been granted. There is a consistent requirement for burials to be registered, but the details are inconsistent and outdated making them an uneasy fit for private burial grounds. 

Grave reuse 

1.24 It is only lawful to reclaim and reuse old graves in London local authority cemeteries, three cemeteries which have obtained an Act of Parliament for the purpose, and in Church of England churchyards. The evidence we have suggests that grave space could soon run out in many parts of the country, and that this outcome is being staved off through burial authorities seeking to make use of every available space. The lack of grave reuse provisions also means that burial grounds cease to have a useful life after they are full, and risk becoming neglected or sites for anti-social behaviour. 

Closed and disused burial grounds 

1.25 The current system in law by which a burial ground can be closed requires the Secretary of State to seek an Order in Council. The use of an Order in Council for that purpose today looks anomalous and creates an unnecessary layer of procedure. The outdated closure system also does not include any provision for reopening closed burial grounds, yet many could be potential candidates for grave reuse as the last burials will have been made in them well over a century ago. 

1.26 Burial law includes a general prohibition on building on disused burial grounds. There are exceptions to that rule now in place for Church of England churchyards, other religious burial grounds, and where the land has been compulsorily purchased or appropriated for development. Those exceptions are accompanied by a framework in the law which sets out what should happen to remains and memorials, and in some cases a right for the relatives of people recently buried in the burial ground to veto plans. There is therefore a gap in the law when it comes to other types of private burial grounds and local authority cemeteries, which prevents alternative uses of land which has been used in the past for burials. 

Commonwealth war graves 

1.27 The Commonwealth War Graves Commission was founded under Royal Charter to ensure the commemoration of those who died in the two World Wars. They have certain powers when it comes to war burials in local authority cemeteries and Church of England churchyards. However, there are gaps in that framework, and they have no  powers in relation to private cemeteries, meaning that they must rely, in some cases, on goodwill rather than statute to protect war graves. 

Cremation 

1.28 The regulations governing cremation have been subject to more recent reform than burial law, and indeed remain in a state of transition following the introduction of the new statutory medical examiner system. However, there remain specific issues which merit a review. 

1.29 Two issues of cremation law cause particular problems for funeral directors. First, the law provides for crematoria to scatter or bury ashes after 14 days if they are uncollected. Funeral directors have no similar provision, and it has been reported that they hold a quarter of a million sets of uncollected ashes as a result. As well as noting that storing these ashes is a problem, funeral directors question whether their premises are a suitable final resting place. Secondly, due to an anomaly created by historic Government guidance, many funeral directors hold large numbers of pacemakers removed prior to cremation for safety reasons. They lack any legal authority to dispose of these. 

1.30 Cremation law also restricts where new crematoria can be sited, so that they have to be 200 yards from a dwelling house (unless the owner or occupier consents) and 50 yards from a public highway. Finally, there are no restrictions on using cremation when it comes to unidentified remains. With advances in forensic science, however, exhumations of buried bodies can contribute to solving missing persons cases, helping to bring peace to their families. 

Our provisional proposals for reform 

Regulation of burial grounds 

1.31 We considered the case for creating a uniform system of burial law to apply to all burial grounds, regardless of who operates them. However, we think that it is important that the regulation of burial grounds is appropriate to their historical context and current use. That means that a one-size-fits-all approach is unlikely to be the right course. Instead, we have looked at different elements of regulation, including those currently applying to local authorities, and considered whether they should be reformed, and whether they should apply to private cemeteries and Church of England and Church in Wales churchyards. 

1.32 We are not aware of widespread problems when it comes to the way bodies are buried, and the standards of maintenance in private burial grounds. However, there are isolated instances of poor practice, and these can cause significant distress to the families and friends of deceased people. We ask for consultees’ views on what rules should govern how burials are made in all types of burial ground. 

1.33 Our provisional proposals would apply a uniform standard of maintenance to all burial grounds, replacing the current patchwork with a contextual requirement that burial grounds are maintained in good order appropriate to their current use. We also suggest modernisation of the Secretary of State’s enforcement powers. The Secretary of State would have the power to issue notices requiring actions to be taken in relation  to a burial ground, and if they are not, to direct a local authority to undertake them and charge the cost back to the owner. 

1.34 We do not think it is right to restrict how burial rights are granted in private burial grounds, because they are a matter of private contract and because that freedom may offer greater flexibility to those who use burial grounds. In order to ensure that people buying a grave space know what they have bought and can identify its location, and to guard against mistaken burials, we provisionally propose a requirement to issue burial rights in writing and record them in a register which is aligned to a plan of the site. 

Grave reuse 

1.35 We think that there is a good case for enabling grave reuse and reclamation in all of England and Wales, and in all types of burial ground. We have heard calls for those powers to be made available from private religious burial grounds and from local authorities. It is important that reuse is done in a way that maintains public trust. We provisionally propose that the safeguards that exist in statute where grave reuse and reclamation is currently permitted should be applied to that roll-out. That means notices should be issued for six months prior to reuse, and if relatives or the grave owner object, then no attempts at reuse or reclamation can be made for 25 years. Where legislation permits it currently, graves cannot be reclaimed or reused until 75 years after the last burial. We want to hear whether consultees think this is an appropriate period or whether it should be 100 years, or another period. 

1.36 One approach to reform might be to enable all burial grounds to reuse and reclaim graves, provided they comply with these safeguards. However, we consider that to ensure that local communities trust that reuse will be done sensitively, and so that operators feel confident in being able to take reuse forward, a case-by-case approach is better. Burial ground operators would be able to apply to the Secretary of State for permission to reuse and reclaim graves. Such an application would be made following public consultation, and would set out which graves would be affected, any steps to be taken to preserve historic graves, and any mitigations identified to respond to local concerns. 

Closed and disused burial grounds 

1.37 The approach in law to closing burial grounds is outdated and anomalous in its use of Orders in Council. We provisionally propose reform so that burial grounds can be closed by a decision of the Secretary of State, but also so that they can be reopened. This could bring more space, particularly in Church of England churchyards, back into use, enabling more people’s wishes to be buried closer to their home or in locations which are meaningful for them to be met. Responsibility for maintaining many closed churchyards has been transferred to local authorities. We provisionally propose that it should remain with them in the case of reopened churchyards, but we consult on options for sharing income from burials with the local authority to alleviate the financial burden of maintenance. 

1.38 The law permits building on some types of disused burial grounds but not others, which creates a confusing patchwork of provision, and is a barrier to the long-term sustainability of some burial grounds as they cannot be returned to any other use. We consider that there is a case for extending the framework governing building on disused burial grounds, and welcome consultees’ views on whether the existing 50- 8 year veto period for families is appropriate or ought to be aligned with that for grave reuse. 

Commonwealth war graves 

1.39 To aid in ensuring the continued protection of Commonwealth war graves, we provisionally propose that the Commonwealth War Graves Commission has new statutory rights. That would include the right to object to the removal of headstones and memorials in private burial grounds, to deal with remains and memorials when all forms of development on disused burial grounds take place, and to maintain private memorials when the families who erected them cannot be traced. 

Cremation 

1.40 Finally, we provisionally propose reforms which would enable funeral directors to return uncollected ashes to crematoria after a period of time, once they have made reasonable attempts to contact the applicant; and to enable funeral directors to dispose as they see fit of removed pacemakers, again after any relatives have been given an opportunity to claim them. 

1.41 The restrictions on where crematoria can be sited were put in place when cremation emissions were seen as a public health risk, which is now largely addressed by technological progress. The effect of this restriction now appears to us to be mixed. We have heard some views that it now safeguards the solemnity of cremation services. It appears that the rule limits new crematoria in urban areas, but through interactions with planning law, enabling them to be built in the countryside or on green belt land. We want to hear consultees’ views as to whether these restrictions should be retained or not. 

1.42 We provisionally propose that cremation, and other irreversible new funerary methods, should not be permitted in relation to unidentified bodies or remains. We take this approach because using burial is more likely to err on the side of caution in terms of the religious preferences of the unidentified person. 

1.43 Taken as a whole, our proposed reforms would modernise burial law, ensuring appropriate regulation where currently it is lacking, and providing modern means of enforcing it. They would address pressures on burial space by enabling grave reuse in a way that ensures public confidence, and by enabling closed churchyards to be reopened. Alongside these main purposes, they would resolve a number of smaller issues in burial and cremation law, not all of which are summarised here, in order to make the law simpler and fairer. ... 

STRUCTURE OF THE CONSULTATION PAPER 

1.147 Following this introductory chapter, this Consultation Paper first turns to look at the regulation of burial grounds. Chapter 2 summarises the different laws applying to different types of burial grounds, sets out our overall approach to regulation, and looks at some preliminary issues. Chapter 3 looks at the rules which apply to the maintenance of burial grounds, and how bodies should be buried. Chapter 4 looks at burial rights and memorials, and Chapter 5 rounds off our discussion of the regulation of burial grounds by considering burial registration. 

1.148 We then explore other specific issues in burial law. Chapter 6 looks at the issue of grave reuse and reclamation. Chapter 7 looks at the process used formally to close burial grounds, and whether reform should enable them to be reopened. Chapter 8 looks at the law on exhumation and on building over disused burial grounds, and Chapter 9 looks at the role of the Commonwealth War Graves Commission in burial law. 

1.149 Then, this Consultation Paper looks at cremation law. Chapter 10 provides an outline of cremation law. Chapter 11 looks at the cremation process, including applications. Chapter 12 considers where cremations can take place, including the rules on the siting of crematoria. Chapter 13 considers the law on the treatment of ashes after they have left a crematorium. Finally, Chapter 14 explores the potential impact of our provisional proposals.