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.

R -v- JACOBSON (1880)

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(14 CCC 522-529. Same site as Moreland -v- Richardson 1856, 52 ER 1238-1241) Prior to Disused Burial Grounds Acts. Foster -v- Dodd 1867 relied upon - see above.

In 1863, Nathan Woolf Jacobson was found guilty, of exhuming without a licence. However, in 1880, the same Police Court dismissed the same charge, as the Master of the Rolls had already granted Jacobson an injunction, on the basis that the Burial Acts had no relevance to the land in question. The decision of the MR was based on Foster -v- Dodd, (The Times 01.05.1880). The Foster -v- Dodd judgement was in 1867, after Jacobson was first prosecuted and before his third prosecution. It was because of Foster -v- Dodd, that the charges against Jacobson had to be changed. After he had been found guilty in 1863 for not having a licence, it was decided that the Burial Acts have no relevance, so his guilty verdict for a breach of statute law, must have been invalid. On the third occasion, he was caught by the common law offence. See the chronology below for the sequence of events. "Mr. Jacobson was summoned to the Marlborough-street Police court on a charge of having committed offences against the Burial Acts. This summons was dismissed, as it was found that the ground in question did not come within those Acts", (The Times 01.05.1880). Consequently, he was prosecuted for the common law offence of exhuming and found guilty, (1880, 14 CCC 522). This was a former Methodist burial ground in London. In applying Foster -v- Dodd (1867), some might regard the decision of the Master of the Rolls as flawed, when he granted an injunction in 1879 or 1880, (14 CCC 523-524), immediately before R -v- Jacobson 1880, (14 CCC 522-528). Relatives had already proven in 1856, that they had burial rights which could be "resumed", (see that notion above in Foster -v- Dodd) within the same land, (1856 Moreland -v- Richardson 52 ER 1238-1241). However, not only were the cases of Moreland -v- Richardson and R -v- Jacobson about the same land and only 24 years apart, both decisions were taken by the MR., albeit different judges, i.e. Sir John Romilly in 1856 and in 1879 or 1880 George Jessel. So, not only did the MR decide in 1879 or 1880 that, "the Burial Acts did not apply to grounds like this one", (1880, 14 CCC 524) but it must have been decided by the judges in the 1880 case, that he was correct and that it was appropriate and legally valid to proceed with a common law prosecution, on the basis that the Burial Acts had no relevance. It must have been decided that the earlier prosecution and guilty verdict were legally invalid, over Jacobson not having an exhumation licence and for that reason, the second prosecution fell back on the common law offence. How can it possibly be argued, that the same reasoning cannot be applied by the police, to the exhumation in 2012, of Father Jozef Jarzebowski from Fawley Court? If referred to the Crown Prosecution Service, could any other valid decision be taken? The CPS would also have to decide whether a prosecution for using an invalid licence, would be in the public interest. Quite apart from the issue of the MoJ issuing legally invalid exhumation licences, resulting in illegal exhumations, (in that there appear to be no means of gaining lawful consents for going ahead with common law exhumations), this issue loops back to the expectation of Parliament, to prevent the destruction of graves created within living memory. For that reason, there are no plans to revise this website after the 11th hour of the 11th month of 2012, in respect for those WW2 veterans, who were so tormented by the illegal destruction of their family graves in Halifax in 1993-1994, (see above). On the 11th hour of the 11th day of the 11th month of the 11th year, the Alice Barker Trust issued its substantive critique to the MoJ., about the illegal destruction of graves created within living memory, (see above). There is another significant legal principle, about the decision in 1856. The MR granted an injunction to protect property rights, in burial rights and gravestones. Although the site appears to have been closed by Order in Council, the MR pointed out that any burial rights not used, could be used if the Home Secretary were to give consent at a later date. A year later the matter was brought back to court and the MR did not alter the decision. In other words, the issues were examined twice by the MR and the same decision was reached on both occasions. "... there is no doubt as to the question of law in this case. In my opinion the freeholder was bound when (the land was sold) to see that it was preserved for interments only and that the bodies of persons buried there should not be disturbed and I also think that each one who succeeded took the ground under the same obligation", (Mainsty, J. 14 CCC 528). The Master of the Rolls had said the Burial Acts do not apply to "grounds like this one", (14 CCC 524), based on Foster -v- Dodd, (The Times, 20.04.1880). "The Master of the Rolls was of opinion that the case was covered by the authority of Foster -v- Dodd and granted an injunction in the terms asked for by the plaintiff, giving him leave to take an inquiry as to damages caused by the Vestry’s wrongful acts", (The Times, 20.04.1880). Jacobson was found guilty of a common law offence, even though he had exhumed 'properly' and decently - surely an illegal exhumation cannot be 'proper'?. He tried to persuade the court that it is not a common law offence to exhume properly and decently (op cit pp.525-526) but that was rejected (pp.527-528). This case appears to prove, that without some form of legal authority, even exhumations which are "proper and decent", are illegal. Re. 1863 conviction see The Times, 20.01.1880 and 01.04.1880. The latter states that Jacobson was bound over, "to answer the charge at the Old Bailey".

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