Exhumation Case Law

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Legal precedents relevant to the case of: Elzbieta Rudewicz -v- Ministry of Justice

Intervening Parties: Save Fawley Court Committee Marian Fathers Charitable Trustees Inc. Fawley Court Old Boys Association 18 Oct 2011 QB Neutral Citation Number: [2011] EWHC 3078 (Admin) C1/2011/2873/C

*Disclaimer: The information on this website was collated at extremely short notice - all readers are advised to independently verify all information herein.

FOSTER -V- DODD (1867)

For details of the first hearing see Law Rep. 1 QB 475 where "The facts are fully set out". Details of the second hearing can be found in LR 3 QB 67-77 Ex. Ch.. Foster -v- Dodd and Another, refers to R -v- Burial Board of St. John, Westgate & Elswick, (1862) Ex. Ch. 2 B&S 705-707, where it was held that S.18, Burial Act 1857, "did not apply to a burial ground which is the property of private persons but only to parish burial grounds". Lord Chief Justice Erle said that if it did apply, it would be "a violation of the rights of private property". Judge Bramwell, B. was one of the judges in both that and the Foster case. The land referred to in the Foster -v- Dodd case had been the Bridewell Hospital burial ground between 1679 and 1884. Ten years after burials had stopped, an Order in Council was issued under S.2 Burial Act 1852 to stop burials (even though they had already stopped) and in 1859 an Order in Council was issued under S.23 Burial Act 1857 ordering that specified tasks be carried out. As that was not done, the Secretary of State (SoS) issued an order under S.1 Burial Act 1859 forcing the churchwardens (today instructions would be issued to the local authority) to enter the property and carry out those tasks. By S.1 Burial Act 1859, they were "directed" to do what was in the Order in Council. "Held, that the sections (of the Burial Acts) did not apply and that the Orders were invalid and the churchwardens (were) therefore liable as trespassers" (p.67). Local authorities should take note of this. It proves that in some cases, they must not obey orders issued by Her Majesty The Queen, through Orders in Council.

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