APABE ANNUAL MEETING 7TH MARCH 2014, 1.30-4.30 Room 1, Church House, 20 ’s Yard, Westminster

Minutes

In attendance. Holger Schutkowski (HS) (Chair), Angela Boyle (AB) (Secretary), Joseph Elders (JE), Simon Mays (SM), David Hillelson (DH), Bas Payne (BP), Margaret Clegg (MC), David Baker (DB), Louise Humphrey (LH), Jane Sidell (JS), Philip Dixon (PD), Jelena Bekvalac (JBek), Judith Bernstein (JB), Rekha Gohil (RG), Jackie McKinley (JM), Richard Mason (RM), Julian Litten (JL)

Apologies. Daniel Antoine, Quinton Carroll, Tim Howard, Elizabeth Popescu, Barney Sloane, Marcia Williams.

Two new members, Becky Clark (BC) and Richard Mason (RM), were welcomed to the panel. BC is the new Deputy Secretary of the Cathedrals Fabric Committee for England (CFCE). RM is Deputy Director for Civil Justice, Administrative Justice, Coroners, Burials, Cremation and Inquiries at the MoJ.

1 Review of the new MOJ procedures (RG/JB)

JE raised the matter of proposed changes to the Burial Act 1857. A review of the Care of Churches and Ecclesiastical Jurisdiction Measure 1991 is also underway. JB was aware of the Measure to amend the 1857 Act but was not aware that the MoJ was cited in the second Measure as it is specifically concerned with disused churches and closed burial grounds/churchyards. The item was therefore moved down the agenda for discussion.

JB reported that it had been agreed in principle that a Measure could be used to amend the 1857 Act but subject to concerns raised by the MoJ. The General Synod approved the draft Measure on 18 November 2013. However, MoJ is concerned that any changes should not be to the detriment of the Justice Secretary.The draft amendment focuses on church powers and shifts emphasis away from the Secretary of State’s powers. Section 25 is primarily about the powers of the Secretary of State and he should not therefore be relegated to a minor clause. JB tabled the current provision; the Measure proposal and MoJ’s preferred wording (see annex)

Approximately 1,300 applications a year are received for exhumation of single sets of remains compared with approximately 200 for archaeological purposes, and around 30 within the Faculty process. The formulation of the Measure needs to reflect the norm.

JB noted the C of E thought that the MoJ wanted to retain dual control while in fact MoJ shared the C of E’s intention to eliminate the need for both a licence and a faculty to be issued in certain cases.

1 The question of whether individuals could be prosecuted for contravening the 1857 Act was raised. JB said that this would depend on whether or not the police were prepared to take action.

In answer to a question, JB also explained that mausolea are regarded as a place of burial.

Changes to the Burial Act 1857

Exhumations are already possible without a licence where the remains are removed under the authority of a faculty from one consecrated place of burial to another. (This has been the case since 1857.) But if they are moved within the same burial place or if they are removed to e.g. a forensic science laboratory (as was recently necessary in Oxford where the body of a murdered girl had to be exhumed) then both a faculty and a licence are required. The change removes this aspect of dual control. It also removes dual control in relation to cathedrals because the Cathedrals Fabric Commission for England now has jurisdiction over human remains as a result of amendments made in the last Mission and Pastoral Measure.

The Draft Care of Churches and Ecclesiastical Jurisdiction Measure

JE reported that the intention is to enable the Consistory Court to give permission for building within a closed graveyard. He noted that a physically separate building is being treated in a different manner to an extension to an existing building. The proposed amendment is still with the Revision Committee. Royal Assent is unlikely to happen until 2015. The aim is to remove the situation whereby construction of an isolated building within a churchyard necessitates the exhumation of the entire churchyard.

JB noted that an architect within the MoJ contributes to such decisions.

PD mentioned that burials are often less than one foot below existing ground level and as advisor to the Dean and Chapter of he generally advises excavation in order to avoid unplanned delays to a project.

JM commented that planners should be better involved/informed and that building should ideally occur in a manner that avoids disturbance of human remains.

HS asked DH to approach IfA about the possibility of attending trade fairs where developers are present.

RG reported that a lot of developers contact her to enquire whether or not licences are required.

The amendment is as follows.

2

4 Disused burial grounds After section 18 of the 1991 Measure there is inserted the following section –

“18A Erection of buildings on disused burial grounds (1) Notwithstanding section 3 of the Disused Burial Grounds Act 1884 (47 & 48 Vict. c.72), a court may grant a faculty permitting the erection of a building on a disused burial ground otherwise than for a purpose permitted by that section, provided that one of the conditions set out in subsection (2) below is satisfied. (2) The conditions referred to in subsection (1) are – (a) that no interments have taken place in the land on which the building is to stand during the period of 50 years immediately prior to the date of the petition for a faculty, (b) no personal representative or relative of any person whose remains have been interred in the land during that period has objected to the grant of the faculty or any such objection has been withdrawn. (3) The power conferred by subsection (1) is without prejudice to any other power which the court has to authorise the erection of buildings on burial grounds.”

Item 1a

JM asked for clarification regarding reburial, specifically those burials which were excavated within the five-year period before the new MoJ procedures were put in place. She cited an example where three areas of the same cemetery are covered by three different licence periods. Osteological work is still being carried out on all the material.

JB said that she would need to check with MoJ lawyers for guidance on dealing with such cases.

BP said that a longer-term solution is required and suggested that applying for a variation on an original licence was one option but that the scope for variation is limited.

RG noted that a deferral application allowed for requesting an extension to a reburial or depository requirement.

SM raised the issue of whether or not a section 25 licence is required for removal of maritime human remains within the territorial limit. RG stated that this had not yet been clarified.

2 Minutes The minutes of the 2013 meeting were accepted as a true record.

3 3 Matters arising

A letter from APABE was sent to Hugh Bayley MP in advance of the adjournment debate in Parliament about the putative remains of Richard III. Hugh Bayley referred to APABE’s recommendations in the debate. APABE made firm recommendations for scientific investigation of the remains but avoided any comment on the proposed place of burial.

4 Case work and consultation over the last year (HS/AB)

4a Cleveland Street, London (AB) This request came from Ruth Richardson via JL. Ruth was involved in attaining listed status for the poorhouse, which was built in the 18th century. In 1790 the remainder of the field in which the poorhouse stood was consecrated for burial. The poorhouse first became a workhouse, then an infirmary. The infirmary was purchased in the 20th century by the Middlesex Hospital, which was later closed. The burials were never removed and there is now a threat from development.

Ruth Richardson wished to determine if there was any means of preventing disturbance of the burials. JL drew her attention to the advice provided by APABE on the Radcliffe Infirmary in Oxford as the two cases have much in common.

HS suggested that the developer would be required to make an application to the MoJ under Section 25 and request permission to remove human remains at which point proposed treatment of remains would be specified.

4b Radcliffe Infirmary, Oxford

Approximately 400 burials of 18th and 19th century date were excavated by Oxford Archaeology. Permission for excavation stipulated rapid reburial of 50% of the assemblage and that no destructive sampling was to be carried out.

Oxford Archaeology and Professor Mark Pollard are now asking for retention of the entire assemblage on a 10-year basis and permission to carry out isotope analysis on a 10% sample. There is a wealth of documentary evidence relating to the burials. Most of the adult males appear to be local and the majority of individuals within the group seem to be disease free.

SM said that David Radford, Oxford City Archaeologist, has asked for the support of APABE. SM emphasised the importance of allowing for other potential analyses such as histology and DNA.

JE said that the original judgement concerning the Radcliffe Infirmary had been a controversial one made by a former chancellor. It is possible to apply for permission to carry out destructive analysis. The figure of 50% was a very arbitrary one. JE has discussed the new application with the current chancellor who is open to discussion.

4 HS proposed that APABE and English Heritage should both submit letters of endorsement in favour of the application.

Action: HS and SM to draft letters.

5 Richard III

A meeting was held at the University of Leicester to discuss the human remains ascribed to Richard III. Four members of APABE attended as private individuals (HS, BP, SM, JE) rather than as representatives of APABE as they had to sign a non-disclosure agreement, although this was confined to details of scientific analyses. The University was represented by Professor Lin Foxhall, Professor Kevin Schurer, Dr Jo Appleby, Dr Turi King and David Monteith ( Cathedral). Becky Clarke represented CFCE.

A presentation of the Greyfriars evidence comprised the following:

 Foxhall – the site and the grave (published in Buckley et al 2013, Antiquity 87, 519-38 http://antiquity.ac.uk/ant/087/336/default.htm)  Appleby – the skeleton, trauma and subsequent analyses  King – aDNA and genetic research  Schurer – genealogical research

This was followed by questions and discussions from APABE members, then questions and discussion from David Monteith who also outlined the position of Leicester Cathedral.

The University was mostly concerned with a ‘stamp of approval’ for the proposed genetic analyses although they did acknowledge issues over the veracity of identification of the remains as Richard III. HS suggested that the evidence to date is overall convincing, but that publication in peer-reviewed journals is mandatory before further recommendations can be made. Several such papers currently are in review or have been submitted recently.

PD (archaeologist for Leicester Cathedral) said that the Dean and Chapter have concerns, as they want to be sure they are burying the correct individual. The burial of the remains is currently timetabled for August.

BC is currently dealing with an application for the re-ordering of Leicester Cathedral. She noted that this application was submitted before the discovery of RIII. RIII will be the subject of a separate application and the re-ordering will not be affected by the reburial.

RM asked if there was doubt relating to the DNA identification. SM commented that a match between modern and ancient DNA allows one to make a probabilistic

5 statement concerning identification. SM reported that Leicester University have made no attempt to assess gene frequency from skeletal remains contemporary to those of the putative Richard III. It is possible that other burials from the site would provide a match. The particular haplotype has a frequency of c 2%. It is probable that the battle entourage of RIII would include actual relatives.

BP pointed out that DNA will never provide a clear and definitive identification while JE commented that the identification needed to be ‘beyond reasonable doubt’. BC stated that the current application for re-ordering within Leicester Cathedral included a proposal for a tomb space and not an actual burial.

HS mentioned that the discussion of isotope analyses at the meeting revealed conjecture, but that the authors of the paper were not present to provide more detail..

The University has been criticised by the ‘Looking for Richard Project’ (part of the Richard III society). Philippa Langley and others co-authored a letter which claimed that ‘the University had authorised itself to conduct tests’ and that the University had previously agreed that ‘any remains positively identified as Richard III would be transferred to her as custodian to be placed in a prayerful environment to await reburial’.

6 Norwegian National Research Ethics Committee (HS)

A meeting was held with members of APABE on 16th December at Church House to exchange views on best practice with possible collaboration on research ethics and human remains (HS). The meeting was attended by HS, SM, JE and MC. Anne Karin Hufthammer (Chair), Hallvard Fossheim (Director) and Unn Yilmaz (Committee member). NNREC acts as national advisory body for all ethical consideration of research and has its own publication outlet. Committees and guidelines exist for four different areas: Medicine and Health, Science and Technology, Social Sciences, Humanities, Law and Theology (including Ethical Guidelines for research on human remains) and Probity in Research.

Both groups introduced their working methods and organisational structures/remits. APABE produced an example of typical case work and MC reported on the repatriation work of museums. There was a mutual expression of interest for future collaboration on overarching ethical issues.

7 King Alfred

RG noted that as the remains thought to be those of King Alfred were removed from consecrated grounds; however, a burial licence from the Ministry of Justice should have been obtained first. This was not the case and scientific tests went ahead on un-consecrated grounds as part of a television programme with Neil Oliver.

6 JE has advised all dioceses and parishes not to become involved in such matters and that the scenario, which was driven by archaeologists, is an object lesson in what not to do. JE is receiving on average six applications a month for exhumations.

While JM mentioned the possibility of raising the matter with IfA as an example of malpractice, RG stated that she had been in correspondence with the archaeologist in charge of the project (Nick Thorpe) and there had clearly been confusion regarding how to proceed.

8 HS2 and Burial Grounds

JE said that there was a likelihood of further burial grounds being identified: the first Environmental Impact Statement missed non-designated burial grounds. JE highlighted a number of sites likely to be impacted (these included Euston St James, Stoke Mandeville Church and its historic landscape, a 19th century burial ground in Birmingham). He emphasised the need for proper parameters and provisions in order to avoid a scenario akin to St Pancras. JS noted that well- qualified archaeologists were involved and that a lot of data-gathering was still required.

HS did submit a response on behalf of APABE to the consultation.

9 Sampling large cemeteries

SM will be ready to circulate a draft in the very near future. He is awaiting detail of further case studies from JS.

Action: SM to circulate revised draft in advance of consultation.

10 Revision of Purple Guidance and production of a guideline for non-Christian remains

At the annual meeting in 2012 JE proposed a revision of the Purple Guidance and production of a document on pre-Christian burials. It was agreed that there is no immediate need to do so and that we should await changes to the 1857 Act.

BP and PD are working on a pre-Christian document, which would be useful to have in place as an aid to HS2.

11 Activities of the Human Remains Subject Specialist Network (MC)

MC highlighted a loss of expertise in human remains within smaller museums. A workshop was held in London in an attempt to help rectify this situation. A second workshop outside of London would be desirable. Funding will be required to take

7 this forward. The HRSSN is also working with BABAO to compile a listing of specialists with expertise in human remains.

RG asked if there was any specific guidance in this matter. SM highlighted the DCMS guidance.

12 Progress with CAHRs (JE)

No progress has been made due to lack of funding. SM said there was no funding to deal with Barton-on-Humber. HS asked if it would be possible for the MoJ to provide political support as we are promoting retention in theory but are not supporting the practicalities. Representatives of the MoJ declined to comment.

SM highlighted the problems with archives generally and stated that the cost should be passed on to developers. BP mentioned that reburial is also a costly exercise.

13 Guidelines on the treatment of human remains from historic wreck sites (SM)

APABE is in favour of endorsing these guidelines. There has been a consultation exercise and the document is currently being revised. RG noted that the MoJ is involved in this process.

14 AOB

The ADCA has outlived its usefulness and been subsumed into the Society for Church Archaeology. There are guidance notes that will be updated. Various changes to the Faculty process are underway and these include an online planning portal in collaboration with English Heritage. A web-based Church Heritage Record has a section on human remains. At present it is exclusively C of E but will be offered to other denominations in January 2015.

DH informed the panel that the Federation of Archaeological Managers and Employers would like to be informed on APABE’s work. This was agreed.

RG stated that there was still a lack of clarification in relation to timescales for analysis and deposition of human remains. She particularly mentioned unexpected discoveries during development. DH noted that such information could be found on OASIS.

15 Date of next meeting Friday 6th March 2014, 1.30 pm. Venue: Church House

8 Annex Current provisions of section 25 of the Burial Act 1857

25 Bodies not to be removed from burial grounds, save under faculty, without licence of Secretary of State.

Except in the cases where a body is removed from one consecrated place of burial to another by faculty granted by the ordinary for that purpose, it shall not be lawful to remove any body or the remains of any body, which may have been interred in any place of burial, without licence under the hand of one of Her Majesty’s Principal Secretaries of State and with such precautions as such Secretary of State may prescribe as the condition of such licence; and any person who shall remove any such body or remains, contrary to this enactment, or who shall neglect to observe the precautions prescribed as the condition of the licence for removal, shall, on summary conviction before any two justices of the peace, forfeit and pay for every such offence a sum not exceeding level 1 on the standard scale.

Amendment proposed by

25 Offence of removal of body from burial ground

(1) It is an offence for a body or any human remains, which have been interred in a place of burial to be removed unless one of the conditions listed in subsection (2) is complied with.

(2) The conditions referred to in subsection (1) are—

(a) the body or remains is or are removed in accordance with a faculty granted by the court;

(b) the body or remains is or are removed in accordance with the approval of a proposal under the Care of Cathedrals Measure 2011 (No. 1) by the Cathedrals Fabric Commission for England or a fabric advisory committee;

(c) unless the body or remains is or are interred in land which is subject to the jurisdiction of the court or its or their removal requires or require [sic] the approval of a proposal under the Care of Cathedrals Measure 2011, the body or remains is or are removed under a licence from the Secretary of State and in accordance with any conditions attached to the licence.

9 (3) A person who removes a body or remains in contravention of subsections (1) and (2) is liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.

(4) In subsection (2)(a) and (c) “court” means the consistory court of the diocese or, in the diocese of Canterbury, the commissary court of that diocese.

Amendment proposed by MoJ

25 Offence of removal of body from burial ground

(1) It is an offence for a body or any human remains, which have been interred in any place of burial to be removed unless one of the conditions listed in subsection (2) is complied with.

(2) The conditions referred to in subsection (1) are –

(a) the body or remains is or are removed under a licence from the Secretary of State and in accordance with any conditions attached to the licence; or

(b) the body or remains is or are removed in accordance with a faculty granted by the court; or

(c) the body or remains is or are removed in accordance with the approval of a proposal under the Care of Cathedrals Measure 2011 (no. 1) by the Cathedrals Fabric Commission for England or a fabric advisory committee.

(3) A person who removes a body or remains in contravention of subsections (1) and (2) is liable, on summary conviction, to a fine not exceeding level 1 on the standard scale.

(4) In subsection (2)(b) “court” means the consistory court of the diocese or, in the diocese of Canterbury, the commissary court of that diocese.

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