Tim Clarke

Burying a body in a garden may sound like something only a serial killer would do, yet in England and Wales it is currently lawful—and no one need know. The Law Commission has been reviewing the law on burial on private land, including gardens, as part of wider proposals to modernise burial and cremation legislation in England and Wales.

While they consider that burials on private land, including in a garden, should be treated differently from those in designated burial grounds, some requirements, such as those relating to how bodies are buried and the requirement to keep a register of burials, should still apply. Of more interest to property lawyers is the recognition of the particular risk that a future owner of the land may not be aware that a burial has taken place. The Law Commission therefore proposes that it should be a criminal offence knowingly to fail to register a burial made on private land and also knowingly to fail to transfer the burial register when the land changes hands. They also recommend that the Law Society should consider whether to include private land burials in its standard pre-contract documentation for property sales.

The need for modernisation

In the conclusion to the summary of the Report, the Commission says that the intention of the proposed reforms is to modernise burial and cremation law in England and Wales, and provide clearer, more consistent safeguards for bereaved families and friends. The proposals respond directly to contemporary challenges, notably the shortage of burial space, the complexities created by Victorian-era legislation, and the need to respect the diversity of religious and cultural practices in modern Britain. In due course there will be a draft Bill containing clear, comprehensive laws governing how all burials must be carried out, how burial grounds must be maintained, how burial rights must be issued, and how registers and plans must be kept. These new standards, supported by updated enforcement powers, are intended to offer stronger safeguards for those who grieve, and ensure human remains are treated with dignity, without imposing disproportionate burdens on burial ground operators. Whilst maintaining necessary distinctions between different types of burial grounds to respect religious and cultural diversity, the proposed reforms are intended to introduce far greater consistency and clarity, making rights and obligations easier to understand. In addition, the proposals also address the growing pressure on burial space, including recommendations on grave reuse and reclamation, together with new powers to reopen closed burial grounds, with the aim of increasing the availability of grave space over time while ensuring strong protections for graves and human remains. Proposals relating to cremation are intended to enhance respect for religious diversity, but also protection of deceased people. Measures proposed include prohibiting the cremation of unidentified remains, regulating joint cremations, and permitting the immersion of ashes, reflecting the range of beliefs and practices found in contemporary Britain. They also propose a solution to the long-standing practical problem faced by funeral directors arising from uncollected ashes.

There are many proposals for reform in this area, which is still largely governed by 19th century legislation, in a report which runs to 394 pages.

How to bury a body…

Apart from the requirements to be imposed on burials on private land outlined above, the Report concludes that there should be uniformity in the regulations relating to how a body is buried. There are currently no consistent laws governing how a body should be buried (or “burial specifications”) that apply to private burial grounds, on private land, or in Church of England churchyards. By contrast, all local authority cemeteries are subject to the same legal requirements. The Commission considers that a single set of minimum burial specifications across all types of burial ground is appropriate. Burial at two feet is practiced widely within natural burial grounds, because it aids in the natural breaking down of remains. A deeper minimum depth would cause problems in natural burial grounds and could also prevent the burials of further people in existing family graves. It is therefore recommended that the minimum depth at which a body should be buried, across all burial grounds, should be two feet. This would apply to every type of coffin regardless of soil conditions. Existing rules in local authority cemeteries also provide that when a further burial is made in the same plot, coffins or bodies in the same grave must be separated by a layer of earth of at least six inches thick. It is proposed that this rule should be extended to all burial grounds.

Where are the bodies?

The Commission believes that record keeping could and should be improved. At present, while all burials must be registered and a record kept, the requirements differ depending on where the burial occurs, in a local authority cemetery, a Church of England churchyard or a private burial ground. The Commission proposes the creation of a new uniform registration system, applying across all types of burial grounds, requiring all burial ground operators to keep several prescribed documents: a burial register; a register of disinterments; a register of the burial of pre-24-week pregnancy remains; a plan of the burial ground; and a register of rights granted. Interestingly, the Commission notes that there are currently no provisions in either birth registration law or burial and cremation law that address pregnancies ending before 24 weeks of gestation. The Commission considers that knowing the location of the burial of pre 24-week pregnancy remains may be significant for parents who chose to bury those remains, as it provides a focal point for mourning, therefore where parents choose to bury pre-24-week pregnancy remains, there should be a requirement to register that burial.

Reusing graveyards

One of the Commission’s most significant proposals is legislation to better enable reuse of burial grounds and the reopening of closed burial grounds. The first of these may be by reclamation or reuse.  An old grave is reclaimed when an additional body is buried in the same grave above the level of the existing burial, without disturbing the original burial. An old grave is reused when the remains from an earlier burial are moved, after which the grave is used for a different burial. The existing remains may be buried deeper in the same grave (called “lift and deepen”), or elsewhere within the burial ground (called “lift and rebury”). It is proposed that there should be a statutory framework under which burial ground operators may apply to the Secretary of State for permission to reclaim or reuse old graves. Consultation would be required and safeguards would include a restriction on reusing graves for at least 100 years since the last burial and a requirement that any remains are skeletal. A photographic record will be kept of any memorials before they are disposed of. Commonwealth War Graves will have additional protection.

There is currently no process for reopening a burial ground which has been closed by an Order in Council. This method was originally used to close burial grounds posing a public health risk. It is now mainly used to close full Church of England churchyards and burial grounds. Once this has been done, such churches can transfer responsibility for the maintenance of the churchyard to local authorities. An Order may be postponed or varied by the Privy Council but there is no provision to revoke the Order. That means that once a burial ground is closed it cannot be reopened, even if the last burial was made so long ago that the land might now be suitable for burials again. Reopening burial grounds closed by Orders in Council may offer important benefits, especially for rural villages that face a shortage of burial space. Combined with existing Church of England powers to reuse graves, which the Law Commission recommends should be extended to non-Church of England burial grounds, this could increase the availability of burial space. The Commission recommends that the Sovereign in Council should have the power to reopen closed burial grounds through an Order in Council, with the consent of the burial ground owner, or both the incumbent and parochial church council. In relation to local authorities which have assumed responsibility for the maintenance of closed Church of England churchyards or burial grounds, the Report recommends that they should retain that responsibility if the churchyard or burial ground is reopened. However, it also recommends that a proportion of the burial fee payable to the parochial church council should be transferred to the local authority to help cover the additional costs of maintaining an open, as opposed to closed, churchyard.

Penalties for body snatchers

Under section 25 of the Burial Act 1857, it is a criminal offence to exhume human remains without legal authorisation, which comes primarily in the form of a licence from the Ministry of Justice, or if the remains are on land consecrated by the Church of England, a faculty from the Church’s consistory court. The Law Commission considers that there are two problems with this offence. Firstly, the statutory provision does not state the fault element of the offence and the Commission recommends that recklessness should be specified as the fault element. Second, the current maximum penalty for the offence of unlawful exhumation is a fine of £200. The Commission believes this is too low and recommends that the maximum penalty for unlawful exhumation should be an unlimited fine or imprisonment for up to the maximum period available (currently 12 months) if sentenced in the magistrates’ court, or an unlimited fine or imprisonment for a term not exceeding three years in the Crown Court. The exhumation offence already includes the disturbing of remains by moving the remains or their container. The Report recommends that the exhumation offence should include “disturbing remains within a place of burial”, which would therefore cover the act of “coffin-sliding”. This is the act of moving a coffin between grave spaces without lifting it above ground level. It is recommended that there should be an exception to the offence in relation to disturbing and removing remains where the burial has not yet been completed. Disturbing or removing a body before a burial has been completed is less likely to be distressing to the family and friends of the deceased person. However, because removing remains carries the risk that a burial ground operator could briefly place the body in the wrong grave, wait until the family has departed, and then move it to the intended location, the Report recommends that such removal should only be permitted with the consent of the owner of the burial right. The exhumation offence under section 25 of the Burial Act 1857 is also now taken to include the burial of ashes from cremation. The Commission believes that a difficulty may arise in distinguishing between burial and the practice of strewing. Strewing is the practice of pouring ashes directly into or onto the ground before covering them with soil and is common or required in Anglican and Roman Catholic theology and practice. Where strewing is common, ashes from earlier strewings will inevitably be disturbed by a later strewing.  The Commission is of the view that repeated strewings could therefore amount to an exhumation offence. To avoid this religious practice inadvertently being caught by the offence, the Report recommends that the law should be amended to clarify that strewing is not interment for the purpose of the offence of unlawful exhumation.

Cremating the wrong body

Although mistaken cremation, which is where the wrong body is cremated, is rare, when it occurs, it can have devastating effects and cause significant distress for families. Some of the risk of mistaken cremation relates to practice in hospitals and funeral director mortuaries, but the Commission believes more could be done at the crematorium. While current good practice includes checking the coffin name plate prior to cremation, it is not a legal requirement. The Report recommends therefore that crematoria should be required to check at least two pieces of identifying information about the deceased person, if available. These could include the date of birth, date of death, or name of the deceased person. They also recommend that when a coffin is used, crematoria should require two identification plates to be fitted to the coffin, one on the lid and one at the base, so that if the two are separated the risk of error is reduced.

There is currently no provision which prevents the cremation of unidentified bodies or body parts. Such remains are usually buried or cremated by local authorities; however cremation may negatively affect the possibility of future identification of the deceased person or hamper the investigation of crimes. It may also be against the religious beliefs of the deceased person, and, unlike burial, it is irreversible. For these reasons, the Report recommends that cremation should not be permitted in relation to unidentified bodies or body parts.

Arguments about the ashes

Following a cremation, funeral directors are often authorised to collect the ashes from the crematorium. However, a recurring issue arises when these ashes then remain uncollected from the funeral director. This may be due to a family dispute over who should collect the ashes, the family member who arranged the cremation may have died or become incapacitated, or there may be emotional reasons why that family member finds it difficult to collect the ashes. It seems that there may be around a quarter of a million such sets of uncollected ashes. Since funeral directors have no legal authority to scatter or bury them, and crematoria have no duty to accept their return, these uncollected ashes end up sitting on the shelves of funeral directors’ premises indefinitely. Funeral directors, unsurprisingly, do not wish to retain uncollected ashes in their commercial premises, premises which are not intended to serve as a final resting place. The Report therefore recommends a scheme for funeral directors which will give them the right to return uncollected set of ashes to the crematorium at which they were cremated. If a funeral director has held ashes for at least three months from the date of cremation, they may contact the person who arranged the cremation twice during a further three-month period to inform them of their intention to return the ashes to the crematorium. The scheme will not apply if the funeral director has been paid to retain or deal with the ashes in a different way. If this process is followed, the cremation authority will then be under a statutory duty to accept the return of the ashes. The Commission recommends that the cremation authority should be able to charge the funeral director for the return of ashes, at a level to be set by the Government. It is recommended that the scheme should apply retrospectively; consequently, it is proposed that there should be a mechanism to stagger the return of ashes so that crematoria have time to deal with the ashes appropriately.

What next?

This Report is not published with a draft Bill setting out how our recommendations will be made law. The reason is that following the publication of this Report, the Law Commission plans to begin its project entitled, Rights and Obligations Relating to Funerary Methods, Funerals and Remains. Work on that project is intended to run until the end of 2027. This Report and that project report will contain many linked issues, such as the question of who should be able to apply for cremation, or who should be able to purchase burial rights. Once the other project concludes, work on the draft Bill will commence, with the intention that the draft Bill will be published in mid-2028, containing clauses that would implement both the recommendations in this Report which require primary legislation, and those arising from the other related project.

This Report contains many sensible and practical proposals which, if implemented legislatively, would significantly modernise the law relating to burial and cremation. Whether serial killers will be willing to keep a register of the bodies buried in their gardens, however, remains to be seen.

Tim Clarke offers advice and representation in both contentious and non-contentious work relating to real property, wills, the administration of estates and trusts and partnerships. He has particular expertise in probate disputes and Inheritance Act claims. He also advises on matters of Ecclesiastical Law. To instruct Tim, or find out more, please get in touch.

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