The judges listed are Kelly, CB., Byles and Keating, JJ. and Pigott, B. However part of the judgement (pp.75-76) is given by Bramwell, B, a judge in the case of R -v- Burial Board of St. John, Westgate & Elswick, (1862) Ex. Ch. 2 B&S 705-707. Acting for all the judges, Kelly, CB delivered their conclusions. He said, "vaults or places of burial" being the wording from the Act, "must mean vaults or places (used for) burial purposes at the time the order was made". He added that in this case, being private land, they must be "under the care of ... persons for the burial of the dead" (p.72). That implies that if no such persons exist, because no vaults or places of burial are in active use, then the 1857 Act has no relevance. Kelly, CB reported that the judges had concluded, "that where land in which burials may have taken place but which has long ceased to be applied to such a purpose, has changed its character and been treated by the owner or occupier in all respects as private property, it is not within the operation of these Acts of Parliament at all" (p.74). Because of (a) the conclusion that the land was never legally consecrated, (b) that burials had not taken place for "a great number of years" (in reality only 10 years before the first Order in Council was issued), (c) during that time it had been used for other purposes and (d) the fact that the land no longer had "the character of a burial ground" and may never have had that character, the judges decided it did not have, "the character of a burial ground within the meaning of the (1857) Act of Parliament", (p.74). Note that this part of their decision is restricted to the one Act, i.e. the one which includes the exhumation licensing procedure, (S.25 Burial Act 1857). They had also concluded that none of the Burials Acts applied (see above). The judges decided that, "neither her Majesty nor the SoS possesses any jurisdiction to determine that to be a burial ground which is not a burial ground. We are, therefore, of opinion that the Order and the acts done under it were unauthorized by statute" and the same decision made earlier by the Queen's Bench was upheld (p.75). It would have been clearer if the judges had decided that the land was a disused burial ground. Saying that a burial ground is not a burial ground within the meaning of a statute, seems never to have been understood by civil servants in the Home Office and later the MoJ.. Where no rights exist and burials have ceased, "is not a place of burial but a place which has been a place of burial ..." (ibid). The land "had ceased to be so de facto; it never was so de jure" (p.76). "Consequently, I think there was no power to make the order under which the Defendants acted ... The Order being invalid ... it is no protection for the Defendants", (ibid). Byles, J. added that they, the five judges, were not required to decide, whether anything done or about to be done by the freeholder, leaseholder or sub-leaseholder, had been, or would be, lawful. He emphasised that the Court's decision could not be taken to "justify any abuse" by any of them or anyone acting for them. He said a buried body is "under the protection of the public" and "indignities offered to human remains in improperly and indecently disinterring them, are the ground of an indictment" (p.77). He seems to have anticipated how landowners might react, knowing that S.25 Burial Act 1857 exhumation licences could not be validly issued. Consequently, he warned of the common law offence of improper, indecent and unauthorised exhumations, when S.25 Burial Act 1857 Act has no relevance.

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