2014 Deemster Geoffrey Tattersall QC

CAROLINE WEATHERILL MEMORIAL LECTURE 2014 A LITANY OF EXHUMATIONS 1 As you will all be aware the wall between heaven and hell which was liable to be maintained jointly fell into disrepair. St Peter asked the Devil to contribute to the cost of the necessary repairs but the Devil refused to pay anything. St Peter said to him if you don`t agree to contribute we will sue. Oh, said the Devil, and where are you going to find a lawyer. It may well be that the Isle of Man Law Society had a similar difficulty in finding a lawyer. So you have me. 2 It is an enormous pleasure to be asked to speak to you today and to do so in memory of Caroline Weatherill who died so tragically in 2006, shortly after giving birth to twin daughters. She was only a young woman and it was a life that was far too short. She had been admitted as an advocate in 1997 and during her articles had married Lawrence. She had quickly established herself as a very effective, well motivated and doughty advocate. She was a delightful funny and clever woman and had well-deservedly earned the respect of colleagues and clients alike. She will continue to be missed and mourned by her family and by a great many people who had good reason to be glad of and be grateful for her life. 3 Last year`s speaker was Lord Neuberger. Unfortunately I could not come but I note that he stayed at Government House and that there was a magnificent dinner for him there. When this evening I return to my room at the Sefton Hotel after dining at a local Italian restaurant I will remember that, although in fairness to the Law Society I should add that where I am staying and eating are my own choices. In fact Lord Neuberger and I have much in common. We both went to the same college at the same university at the same time. He read chemistry and then became a merchant banker but then moved on. I read law and became a barrister. The rest they say is history. I had thought of entitling this lecture `From the sublime to the ridiculous` but I know that Lord Neuberger would object to the word `sublime`. 4 Many of you will know that I am a serial collector of unusual part-time jobs. My adult children often say to me that I would find it easier if I had one proper job but I remain unconvinced. And so it is that, apart from my role here I am also, like most of you, a practising advocate and I am the Chancellor of the Dioceses of Carlisle and Manchester. And although it would be tempting to address you on the subject of the rule of law and the role of the modern advocate [which I had initially contemplated doing], I think that will have to await a lecture from someone more erudite than myself and I am going to talk about some of my experiences in my other day jobs. 1 5 Now you need to know that most decisions I make as Chancellor involve church buildings but the most interesting part of the jurisdiction relates to the law of exhumation, with which you will no doubt all be intimate. Hence the title of my lecture : `A litany of exhumations`. 6 So it was that I conducted my first Consistory court in a beautiful little church near Kendal over 10 years ago. The facts were these. Some years ago the husband had died and was buried in the churchyard. A few weeks before a lady - not related to him - had died and was buried, by mistake [a mistake on the part of the gravedigger], in the same grave. The parish priest, on behalf of the surviving wife who had hoped to be buried with her husband, sought a faculty to exhume the lady and re-inter her in a nearby grave. Although, for inexplicable reasons such application was opposed, all was going well and the gravedigger had admitted that it was his fault, but then in his closing submissions the advocate for the deceased lady suddenly announced ` ... and there are the two Human Rights Act points`. 7 At this point my heart sank. `What are they?` I timidly asked. I was told that the first point was the right to family life enshrined in Article 8(1) of the Convention. With as much tact as I could muster, I pointed out that the lady was dead and that in such circumstances the right to family life was a concept somewhat difficult to understand. The advocate agreed. I suggested that there must be some well established jurisprudence on this issue. He agreed ... but did not produce any. I suggested that this was not a point which was likely to succeed. 8 Somewhat emboldened I asked what the second point was and was told that it was the right to the peaceful enjoyment of possessions enshrined in Article 1 of Protocol 1 of the Convention. I asked who owned the lady`s body. I got no answer. I observed again that there must be cases on this. He agreed … but again did not produce any. It will come as little surprise that that point too was lost. 9 If there is a moral to this story it is that indiscriminate reliance on Convention rights when you have not done your homework merely serves to irritate the trial judge. 10 I could tell you of many other exhumation cases where initially the real case is never revealed to you. For example the old man who complained that when his wife died and he was ill, his children had arranged for his wife to be buried in a churchyard of their choosing which he believed was inappropriate and would not allow him to be buried with her in due course. It seemed such a sad story. Of course in due course the children were served with the application. The response of his daughter was to point out that the father had not revealed his current address and of course the facts came spilling out. He had abused the daughter over a number of 2 years, it had all come to light when she was older, and then he had been prosecuted, convicted and, notwithstanding his age, he was now serving a lengthy prison sentence. Since all this had come to light the parents had separated and the daughter suggested to me that the last thing that the mother wanted was to be buried with the father. I did not need much persuasion that such was the case. 11 There are sometimes very sad cases. Some years ago there were floods in north Cumbria. One day I received a telephone call saying that the churchyard adjacent to the river was being eroded and coffins were tantilisingly dangling almost into the river. Of course such applications were swiftly granted. 12 And there was the woman whose skeleton was found in a cellar in Bolton. She was wearing jewellery. Although she had died many years before [with her skeleton was a newspaper the date of which gave some clue] all attempts to identify her failed and she had been buried in a common grave. Subsequently there was an attempt made at facial reconstruction which gave rise to an application by the Chief Constable who wished that she be exhumed so that DNA tests could be carried out after a family from Liverpool had come forward believing that this was their mother, who left home when suffering from alcoholism. The jewellery was similar to that which the Deceased had owned. In due course DNA established that this was the missing woman and she was returned to her relatives for re-burial. 13 Finally there was the case of the so-called Manchester Martyrs. This was an application to exhume the remains of three men who had all died on the same date. That is very unusual. The cause of death was expressed to be by judicial hanging. They had been hanged because they had been convicted of murdering a policeman during the Fenian riots in Manchester in 1867. To my surprise their remains were interred in a local cemetery. 14 The facts were that on 18 September 1867 these three men were part of a group of 30-40 Fenians who successfully attacked a horse-drawn police van transporting two arrested Fenian leaders. Two others were convicted of murder. One, an American citizen, was reprieved on the eve of his execution because of the intercession of the United States Government. The other`s appeal succeeded because the evidence was considered to be unsatisfactory. 15 The three remaining men were publicly hanged on a temporary structure built on the wall of New Bailey Prison in Salford on 23 November 1867 in front of a crowd of about 10,000. It is recorded that the spectators were `well supplied by the gin palaces of Deansgate and the portable beer and coffee stalls`. According to one of the three catholic priests who attended the men: 3 `A crowd of inhuman ghouls from the purlieus of Deansgate and the slums of the City ... made the night and early morning hideous with the raucous ... strains of `Champagne Charlie`, `John Brown` and `Rule Britannia`. No Irish mingled with the throng. ... They had obeyed the instructions of their clergy. Throughout Manchester and Salford, silent congregations with tear stained faces ... assembled for a celebration of early Mass for the eternal welfare of young Irishmen doomed to die a dreadful death that morning.` 16 I might add that the executioner William Calcraft was reportedly nervous of executing Fenians because of threats he received.

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