This appeal is brought by Elizabeth Rudewicz with the permission of Arden LJ. The appeal is against a decision of the Divisional Court (Hallett LJ and McCombe J) given on 18 October 2011 – [2011] EWHC 3078 (Admin). By that decision the Divisional Court refused to grant judicial review of the decision of the Secretary of State for Justice to grant a licence under section 25 of the Burial Act 1857 (‘the 1857 Act’). The effect of that licence was to permit the remains of Father Jarzebowski (‘the Priest’) to be exhumed from Fawley Court, Henley upon Thames, in order to be transferred to Fairmile Cemetery (‘Fairmile’), some two miles away.

The factual background to this appeal is very clearly and fairly set out in the judgment of Hallett LJ at [2011] EWHC 3078 (Admin), paras 1-17. In summary form, the salient facts are as follows.

Some time in the 1950s, Fawley Court, which consists of a 27 acre site with buildings, was acquired by the Marian Fathers (‘the Fathers’), a Roman Catholic religious order and a charitable institution. Although the Fathers are a world-wide order, it was the Polish Province which was at all times involved with Fawley Court. The Fathers initially used the property as a school (‘the school’) until 1986, and then as a retreat and conference centre. A church was built on the site by a member of the Polish royal family, Prince Radziwill (‘the Prince’), and he is now buried in the crypt.

The Priest founded the school and played a very prominent part in the life of the community from its inception. As Hallett LJ said at [2011] EWHC 3078 (Admin), para 1, he was ‘a very special priest’ who ‘achieved almost saint-like status amongst many in the Roman Catholic community’. On his death in Switzerland in 1964, his body was returned to England and buried at Fawley Court. It appears that he had expressed a wish to be buried there, indeed in the particular location in which his remains are currently interred.

By 2008, Fawley Court was no longer required by the Fathers, and it was deconsecrated and sold to a company called Cherrilow Ltd (‘Cherrilow’).

A couple of years later, the Fathers applied to the Ministry under section 25 of the 1857 Act (‘section 25’) to disinter the Priest’s remains and to re-inter them in Fairmile, where a number of the Fathers who died after 1964 are buried. The application was supported by the Provincial Superior of the Polish Province of the Fathers, the Superior General of the Congregation of the Fathers in Rome, and the local Bishop. The reasons given for the removal of the Priest’s remains to Fairmile included (i) the fact that it will be easier for those who wish to visit his grave to do so, and (ii) his remains will thereby be together with the remains of many of his former brothers with whom he lived and worked at Fawley Court.

The application attracted significant opposition, including from Ms Rudewicz, who is the nearest living relative of the Priest, being his first cousin once removed, who was aged seven when he died. Although she never met him, she has visited his grave on a number of occasions. Around 2000 other people (‘the objectors’), almost all of whom appear to be members of the Polish Roman Catholic community in England, wrote to object to the proposed disinterment, often expressing their views in strong terms. The objectors included Save Fawley Court Heritage Committee, described by Mr Fordham QC, who pursued this appeal with Mr Lee, as ‘an umbrella organisation representative of almost all Polish organisations in the UK’. The Fawley Court Old Boys Association, and the Vicar Delegate, who is the sole representative of the Polish Roman Catholic Community in the UK, also objected. As Mr Fordham said, the general thrust of the objectors’ case included the contentions that (i) the Priest’s remains should remain undisturbed, and (ii) they should be able to visit his grave.

The Secretary of State decided to grant the application to disinter the remains of the Priest, in a decision letter dated 5 September 2011, which included the condition that the Priest be re-interred at Fairmile so that anyone who wished to visit his grave could do so. The reasons for this decision were set out in an impressively detailed schedule (which were appended to an earlier letter for reasons given at [2011] EWHC 3078 (Admin), paras 7 and 10).

The relevant factors which led the Secretary of State to arrive at this conclusion were as follows.

First, the practice of the Secretary of State in relation to applications under section 25 has always been to regard the wishes of the deceased’s next of kin as very important, and, when it comes to members of religious orders, the head of the relevant order is generally regarded as the next of kin. Such an approach is reinforced in the present case by the fact that the constitution of the Fathers (as laid down in 1930) does not entitle a member, even one as exceptional as the Priest, to have enforceable views as to where he should be buried. The constitution provides that the decision as to where a member is to be buried is that of the Head of the Fathers’ Order; whether one takes that person to be the Provincial Superior or the Superior General, he clearly supports the proposed disinterment.

Secondly, the removal of the Priest’s remains to Fairmile would have the benefit of re-uniting him with his former brothers with whom he lived and worked. That opportunity did not exist in 1964, as the area of Fairmile in which deceased members of the Fathers who lived at Fawley Court are buried was only set aside for that purpose after 1964.

Thirdly, if the Priest remains buried at Fawley Court, there will be a problem for those who wish to visit his grave. Cherrilow has no obligation to permit access for that purpose, and its solicitors have confirmed that, if such access is to be accorded at all, it would only be on a very restricted basis (possibly once a year). And, of course, any such permission could be withdrawn at any time. If the Priest’s remains were moved to Fairmile, on the other hand, access to his grave would be unimpeded (at least during the day), and it would have the advantage of being combined, for those who wished, with visiting the graves of any of his former brothers.

The Secretary of State did not ignore the countervailing factors, which he identified as (i) the Priest’s wish to be buried at Fawley Court, (ii) the stress which would be caused to many members of the Polish community by the Priest’s disinterment, (iii) the possible feeling of ‘disrespect’ that his decision might be seen as signalling to the Polish ‘heritage’, and (iv) the objections of the Priest’s nearest living relative. Nonetheless, the Secretary of State decided to grant the application.

That led Ms Rudewicz, with the support of Save Fawley Court Committee (who have made written submissions to this court in support of the appeal), to apply for judicial review of the decision. In full and clear judgments, Hallett LJ and McCombe J decided to reject the application. Ms Rudewicz now appeals to this court.

It was a common law indictable offence to disinter a dead body without lawful authority, however laudable the reason, or, it would appear, however unintentional the disinterment – see e.g. R v Lynn (1788) 2 TR 733.

Statute in the form of the 1857 Act then intervened. Section 25 provides, so far as relevant (with sub-paragraphs added for convenience):

In these circumstances, it will be appreciated that the licence granted by the Secretary of State in this case was granted pursuant to what I have referred to as section 25(ii).

Apart from this statutory provision, there is, as is referred to in what I have called section 25(i), the power of a consistory court to grant a faculty for the exhumation of remains where they are interred in consecrated ground of the Anglican church. Perhaps the leading modern authority on that jurisdiction is the decision of the Arches Court of Canterbury (on appeal from Briden Ch) in In re Blagdon Cemetery [2002] Fam 299. However, as section 25(i) makes clear, it is only where the purpose of the disinterment is to remove the remains from one Anglican consecrated site to another that section 25(ii) does not apply.

The appellant’s case before us, as it was below, was that the Secretary of State’s decision to grant a licence under section 25(ii) was a decision which was (a) based on a wrong approach in law, (b) one which no reasonable Secretary of State could have reached, and/or (c) disproportionate.

So far as the first argument is concerned, Mr Fordham contended that the Secretary of State wrongly treated the question of whether to grant the licence as an open one, rather than proceeding on the basis that there was an onus on the applicant for the licence to show good reason why disinterment should be permitted.

In that connection, Mr Fordham relied on the proposition that, despite the enactment of the 1857 Act, the disinterment of a body remains an indictable common law offence. It is fair to say that that proposition was accepted by Mr Strachan for the Secretary of State and is supported by an unequivocal statement in Halsbury’s Laws (4^th edition) Vol 10, para 1304, as well as the case of R v Jacobson (1880) 14 Cox CC 522. I must nonetheless confess to some doubt about the notion that, where Parliament has legislated that a particular action constitutes a summary offence carrying a sentence of a scale fine, a previously established common law indictable offence with an unlimited sanction for precisely the same action can survive. Furthermore, if the common law offence in this sort of case exists separately from the statutory offence, it seems logically questionable that a licence under section 25(ii) could prevent the subsequent disinterment being a common law offence, while it would be absurd if it did not.

It is, however, neither necessary nor appropriate to decide the point on this appeal. It is unnecessary, because I am prepared to assume that Mr Fordham is correct, as it does not affect the outcome of this appeal. It is inappropriate not only for that reason, but also because the point has not been fully argued, and it may be, for instance, that there are differences between the common law and statutory offences which justify the survival of the former even in situations where the latter would apply.

The fact that disinterment without a licence would constitute a common law offence ‘of a very serious nature’ (per Field J in Jacobson 14 Cox CC 522, 527) is said by Mr Fordham to support the contention that there is an onus, indeed, as I understood it, a heavy onus, on a person seeking the grant of a licence

Mr Fordham reinforced his submission by pointing out that the Court of Arches in Blagdon [2002] Fam 299, para 20 emphasised that a faculty to exhume ‘has never been given on demand’ and that there was ‘a general presumption of permanence’ which ‘ar[ose] from the initial act of interment’. I accept that this presumption exists in the consistory court’s current approach to applications for faculties for exhumation, as is indeed clear from the approach of the Court of Arches in that very case.

The main point raised in support of the appellant’s second line of argument, sc. that the Secretary of State’s decision to grant a licence in this case was wholly unreasonable, was that it was illogical for him to have relied on the desire of people to visit the Priest’s grave. This was because a large number, possibly most, of the many objectors expressly referred to their desire to visit his grave. No individual appears to have written in support of the proposal on the ground that he or she wished to visit the Priest’s grave, although the fact that such people would have such a wish was relied on by the Provincial Superior and the Superior General.

Another point made in support of the unreasonableness argument was that, if there really had been a genuine desire for the Priest’s remains to join those of his former brothers, the application for a licence could and would have been made long ago.

In this connection, it was also said that the financial interest which the Fathers had for disinterring the Priest’s remains could not be justified. However, that argument was not pressed by Mr Fordham, in my view rightly, as the possible financial benefit to the Fathers of moving the Priest’s remains did not feature in the Secretary of State’s reasoning. (The issue arose because the Fathers will receive more money under the sale agreement with Cherrilow if they can remove the remains of both the Priest and Prince Radziwill. However, if that had been a relevant ground for granting the licence, it might have been open to attack, as a licence has been refused for the disinterment of Prince Radziwill’s remains, as his closest surviving relative, namely his son, objects).

The third argument, that the decision to grant the licence was disproportionate, rests primarily on the contention that Articles 8 and 9 of the European Convention on Human Rights (‘the Convention’) are engaged. Article 8 of the Convention (‘Article 8’) is said to be engaged in relation to Ms Rudewicz as the Priest’s next of kin, and Article 9 of the Convention (‘Article 9’) in relation to all those who feel strongly that the Priest’s remains should stay where they are. As I understood him, Mr Fordham suggested that, even in the absence of Articles 8 and 9 being engaged, the decision to grant a licence in this case could be challenged by Ms Rudewicz on the ground of lack of proportionality.

In my view, the first contention raised on behalf of Ms Rudewicz, namely that the Secretary of State applied the wrong test when granting the licence, should be rejected. I consider that the contention that a person seeking a licence under section 25(ii) has to discharge an onus is either unhelpful or wrong. It is unhelpful if it simply means that there has to be a reason to justify the grant of a licence. Obviously, the Secretary of State is not going to grant a licence unless there is a reason for it, and it appears that he regards the wish of the next of kin to re-inter the remains elsewhere as a sufficient reason. Accordingly, in the absence of any contrary reason, his practice appears to be to grant a licence where it is requested by the next of kin for the purpose of re-interment elsewhere.

Mr Fordham’s case, however, goes further, in that it involves saying that this long-standing approach adopted by the Secretary of State sets the bar too low, and in that I consider that he is wrong. Section 25(ii) appears to confer an unfettered discretion on the Secretary of State, and it is, at least in the absence of special circumstances, inappropriate for the court to treat a statutorily conferred discretion with no express limitations or fetters, as being somehow implicitly limited or fettered.

Accordingly, unless there is some justification for doing so, it is for the Secretary of State to decide on what grounds and in what circumstances to grant a licence, and, apart from an obligation to act rationally, and otherwise in accordance with the general law (including that relating to human rights), there should be no operative fetter or presumption. As explained above, Mr Fordham relies on (a) the common law offence and/or (b) the approach of the consistory courts, as constituting a justification for importing a ‘presumption of permanence’, and the imposition of a relatively heavy onus on the person seeking a licence.

The common law offence is committed where a person carries out an exhumation without lawful authority, and section 25(ii) empowers the Secretary of State to give such authority by means of a licence. I cannot see any reason why such a licence should be relatively hard to obtain simply because, in its absence, the act it authorises would be a crime. If anything, one would have thought that that would justify it being relatively easy to obtain a licence.

As for the approach of the consistory courts to faculties for exhumation, I do not consider that it is applicable to the standard to be adopted by the Secretary of State to the grant of licences under section 25(ii). The reasons for the ‘general presumption of permanence’ adopted by the consistory courts was explained in Blagdon [2002] Fam 299, paras 23-27, as being based on the ‘theology of burial’. That theology is plainly highly relevant to the faculty jurisdiction, but it is equally plainly irrelevant to the exercise of the secular power in section 25(ii). Indeed, it seems clear that this was the view of the Court of Arches – see [2002] Fam 299, para 26.

Mr Fordham says that the Roman Catholic attitude to exhumation is the same as that of the Anglicans, and therefore the same principles should apply to the present case as would be applied by the consistory court to a grave. I do not see why that follows, even if the Priest’s grave is on consecrated ground (a point which is not clear to me). The consistory courts are special courts which apply ecclesiastical law to graves in Anglican consecrated ground. The fact that their jurisdiction does not extend to other graves, all of which are governed by section 25, cannot begin to justify interpreting that section by reference to the beliefs of the religion of the person buried in the particular grave.

I would also reject the second contention raised on behalf of Ms Rudewicz, namely that the decision to grant a licence was irrational. It is true that, while an important reason for granting the licence was to enable those who wished to visit the Priest’s grave to do so, all the objectors who said that they wished to visit his grave opposed the grant of the licence. However, that does not invalidate the reason. First, there is no reason to think that the only people who wished to visit the Priest’s grave were objectors. There may have been plenty of people who were happy for the Provincial Superior, the Superior General, and the local Bishop to speak for them. Anyway, it is not clear that by any means all of the objectors appreciated that they may well be unable to visit the Priest’s grave if the licence was not granted. Further, even if many of the objectors regarded their wish that the Priest’s remains stayed where they were as more important than their ability to visit his grave, that does not mean that the Secretary of State had to take the same view. It is also relevant that it appears likely that the Priest will be beatified, which, as Hallett LJ said at [2011] EWHC 3078 (Admin), para 28, would make it more likely that ‘it will not just be members of the Polish Roman Catholic community who would wish to pay their respects to his grave’.

Another answer to the point is based on the Secretary of State’s attitude to an application under section 25(ii), namely that, in the absence of good reason to the contrary, he defers to the wishes of the deceased’s next of kin, in this case, the Provincial Superior and/or the Superior General. On that basis, the importance of enabling those who wish to do so to visit the Priest’s grave is that it provides a supporting reason for acceding to Provincial Superior’s application, and the fact that the objectors appear to think it deserves less weight is, in the end, neither here nor there.

There is nothing, in my view, in the argument that it was wrong for the Secretary of State to take into account the benefit of re-interring the Priest’s remains near his former brothers, because that cannot have been a significant reason, as, if it had been, the licence would have been applied for many years earlier. Until the application for a licence was made, it was not open to the Secretary of State to consider moving the Priest’s remains to Fairmile.

Even if one looks at the issue from the viewpoint of the Provincial Superior, the fact that re-uniting the Priest with his former brothers could have been raised earlier does not mean that it is not a genuine reason now. Until Fawley Court was sold, it may not have been thought to be a sufficient reason to justify an application for a licence. Or, perhaps more likely, it may be that the sale of Fawley Court precipitated a wish to move the Priest’s remains, and the consequential possibility of re-uniting him with his former brothers may have been appreciated as a benefit for the first time. As Hallett LJ said at [2011] EWHC 3078 (Admin), para 27, it is ‘obvious’ that ‘the application [for a licence] would never have been made if the property had not been sold’.

I turn, then, to the final argument raised on this appeal, proportionality. Like Hallett LJ I have some difficulty in seeing how Article 8 is engaged. It might have been different if there had been a close personal relationship, or even a close familial relationship, between Ms Rudewicz and the Priest, but they never met, and she is a distant relative. It is difficult to see how her family life or private life can fairly be said to be involved on the facts of this case.

Like McCombe J below (at [2011] EWHC 3078 (Admin), para 42), I also find it hard to fit the concerns of Ms Rudewicz and the objectors in this case into the wording of Article 9. The exhumation of the Priest’s remains may offend the religious feelings of Ms Rudewicz and the objectors, but it will not affect their right to hold or their right to manifest their religious beliefs.

Mr Fordham submits that what was said by Lord Nicholls of Birkenhead in R (Williamson) v Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AC 246, para 35, and by Pill LJ in Surayanda v The Welsh Ministers [2007] EWCA Civ 893, paras 3 and 18, assists his case on that point. In the former case, Lord Nicholls said that Article 9 was engaged because by wanting (i) to authorise their child’s teacher to administer corporal punishment, or (ii) to place their child in a school where corporal punishment is administered, parents were seeking to manifest their religious belief. Here there is no such desired action or manifestation on the part of Ms Rudewicz or the objectors. In Surayanda [2007] EWCA Civ 893, the Community wished, for religious reasons, to retain its bullock, and preserve it from slaughter, despite the risk of spreading bovine tuberculosis. As Lloyd LJ put it at [2007] EWCA Civ 893, para 84, the Community was seeking to ‘manifest its religion by keeping the bullock as its temple bull’. Again, there is no equivalent actual or desired action to which Ms Rudewicz or the objectors can point in this case.

However, even assuming that both Article 8 and article 9 are engaged in the present case, I am clearly of the view that the Secretary of State’s decision was proportionate. First, so far as both Articles are concerned, there were competing interests. In relation to Article 8, as against Ms Rudewicz’s wishes, there are the wishes of the Provincial Superior, who, in many ways has a stronger case than she does for being treated as the Priest’s closest family member. In relation to Article 9, the religious concerns of Ms Rudewicz and the objectors have to be balanced against those whose religious beliefs appear to favour the grant of the licence.

Secondly, even ignoring these competing Article 8 and Article 9 concerns, I cannot accept that the Convention rights of the objectors and Ms Rudewicz take matters any further in this case. Their concerns have already been fairly taken into account by the Secretary of State, who has concluded that they should not prevail, and this is not a case where the fact that those concerns may involve Convention rights should take matters any further. It is true that the involvement of Convention rights requires the court to ensure that the decision under attack was proportionate. However, in the light of the careful balancing exercise carried out by the Secretary of State, and the reasons for which he decided to grant the licence, the involvement of the relatively weak Convention rights raised by Mr Fordham in this case cannot begin to justify a court interfering with the decision to grant the licence.

As for the suggestion that, even if Convention rights are not engaged, the decision was still disproportionate, I am not sure whether as a matter of principle it can be relied on once Ms Rudewicz has failed on her first two arguments, but, if it can, it plainly does not assist her case on the facts, essentially for the reasons given in the immediately preceding paragraph.

For these reasons, which closely mirror those of the Divisional Court, I would dismiss this appeal.

I agree.

I also agree.