[1958] 1 W.L.R.
309
1958
JUDGMENT IN DEFAULT OF ApPEARANCE OR OF DEFENCE
Where £300 or over is recovered:-
£ s. d.
9 o
10 0
Town Cases increased from ...
Country Cases increased from
o to
o to
£ s. d.
10
11
0
0
o o
PRACTICE
DIRECTION
(COURT FEES
AND FIXED
COSTS).
JUDGMENT UNDER ORDER XIV
Where £300 or over is recovered: -
£ s. d.
£ s. d.
12 15 o to 14 5 o
13 10 o to 15 5 o
Town Cases increased from ...
Country Cases increased from
JUDGMENT ON DISCONTINUANCE OR ON ACCEPTANCE OF
MONEY PAID INTO CoURT
£ s. d.
Costs on signing Judgment decreased
from ...
£ s. d.
1 7 0 to 0 17 0
All other amounts in the Scale of Fixed Costs remain unaltered.
R. F. BURNAND,
Senior Master of the Supreme Court.
February 24, 1958.
[NORWICH CONSISTORY COURT.]
* In re PARISH OF CAISTER-ON-SEA.
NORFOLK COUNTY COUNCIL v. KNIGHTS AND OTHERS
AND CAISTER-ON-SEA JOINT BURIAL COMMITTEE.
Ecclesiastical Law-}i'aculty-Burial ground-Disinterment followed by
reinterment in communal grave-Road widening scheme.
Oemetery.
A county council, as highway authority, sought a faculty to
enable them to use certain consecrated land for the purposes of a
road widening scheme, involving interference with a large number
of graves in that land. Proposals were put forward for the
exhumation and subsequent reinterment of some 400' human
remains, most of which were identifiable. Such remains as could
not be identified would be reinterred together in a communal
grave:Held, that while there was no general rule or doctrine of the
Church of England against exhumation and subsequent reintermellt
in another place, the grant of a faculty for this purpose was a
[Reported by M. B.
VOL. 1
KELLY,
ESQ., Barrister-at-Law.]
23 (1)
1957
Aug. 20;
Sep. 27, 28;
Oot. 21;
Nov. 15.
Ellison Ch.
THE WEEKLY LAW REPORTS
310
1957
PARISH OF
CAISTERON-SEA,
In re.
MARCH
14, 1958
matter of discretion, and on the facts of this case the faculty
as prayed would be refused.
PETITION FOR FACULTY.
By their petition dated February 4, 1957, the Norfolk County
Council, as highway authority, sought a faculty to take a strip
of land along the length of Caister-on-Sea cemetery, which was
under the management and control of the Caister-on-Sea Joint
Burial Committee, adjacent to Ormesby Road, in order to widen
that road by about 4 feet 6 inches, und to make a footpath
between the widened road and the new boundary of the
cemetery. The scheme involved interference with a large number
of graves and the exhumation and subsequent reinterment of
some 400 human .remains, about 80 of which were unidentifiable.
Those that could be identified would be re interred in separate
graves and those that could not, would be reinterred in a
communal grave.
The petition was opposed by 27 individual parties who, by
order of the court, were formed into seven groups, each group
being ordered to be represented by a "representative party
" opponent. "
The objections of the representative parties opponents raised
(inter alia) the following issues: (i) that the number of accidents
which were alleged by the petitioners, who had based their case
on alleged traffic danger, was excessive; (ii) that exhumation on
such a large scale was an unsuitable and unbecoming procedure;
(iii) on the question of pedestrians, if certain limited improvements were made to it, many more people would use a footpath
through the cemetery, and (iv) on the question of the widening
of the roadway, that a proposed alternative scheme was preferable to that put forward by the petitioners. The Caister-on-Sea
joint burial committee in their objections confined themselves to
the third and fourth points and proposed an alternative scheme.
D. E. H. James (solicitor) for the petitioners.
R. O. Killin (solicitor) for the representative parties
opponent.
The joint burial committee were represented by one of their
members appointed to act on their behalf.
Our. adv. vult.
Ch. stated the facts and referred to the pleadings,
and continued: I think that this would be a convenient stage for
me to make one or two general observations. The contention of
the parties opponent that exhumation and reinterment is an
unsuitable or unseemly procedure was developed during the
evidence of some of them into the much wider contention that
once land was consecrated it should never be interfered with
under any circumstances, and that reinterment of unidentifiable
remains in a communal grave should not be permitted. I think
ELLISON
[1958) 1 VV.L.B.
311
that this proposition needs some qualification. Consecration has,
of course, a spiritual significance but the act of· consecration,
essentially judicial and becomes manifest when pursuant to a
petition to consecrate, and after due consideration, the Ordinary
pronounces a sentence dedicating and setting apart the lands
from all common and profane uses. Once consecrated the land
falls within the jurisdiction of the Ordinary exercised through
the medium of the consistory court. Subsequently, consecration can only be rendered nugatory or its effect taken away by
legislative means such as an Act of Parliament.
Although the consistory court is an ecclesiastical court it
is nevertheless a court of the realm and one of the Queen's
courts, and not infrequently it is called upon to do justice
between the church authorities and others of the Queen's
subjects. The court has long assumed a jurisdiction to permit
within its discretion the user of consecrated land for purposes
such as road-widening schemes. where it has been satisfied that
it is necessary for public good that such user should be allowed,
and many are the examples in the textbooks and .reports. In
my judgment,· there is no doctrinal or other rule which says in
effect that the dead once buried in consecrated land shall for
ever after take absolute priority over the compelling needs of the
living: and if I was satisfied in any case that there was a
substantial need based on danger to the living, or other cogent
reasons why a road should be widened at the expense of using
consecrated land, it would be my duty to grant a faculty to
enable that to be done. Under .powers granted by the Faculty
Jurisdiction Rules, 1939. this court of its own motion summoned
the Archdeacon of Norwich. the Venerable Robert Meiklejohn, to
. assist on these and other aspects. In his evidence the Archdeacon
expressed the opinion that there was no general rule or doctrine
of the Church of England against exhumation and subsequent
reinterment of human remains elsewhere. But he emphasized
that. in his opinion, this course should only be taken when it
was proved to be necessary and in other cases it should be
avoided. On the question of interment in a communal grave he
again knew of no doctrinal objection. and he was unable to see
any other practical way of interring large numbers of unidentified
remains. I accept those views entirely. In my judgment, they
are sound. Although communal burial may seem distasteful to
some, yet that practice has long been adopted, particularly in
cases of national disaster: it followed often as a consequence
after heavy bombing raids during the war, and in eases of
serious aircraft accidents, and where, for one reason or another,
the remains have not been identifiable, communal interment
has hlken place. I think that it is most unfortunate that this
question of communal reinterment should ever have arisen, and
it is certainly no fault of the Nodolk County Council that they
have been obliged to put it forward in their proposals.
VOL.
1
23 (2)
1957
PARIsn OF
CAISTER·
ON,SEA,
In re.
EllisOD Ch.
312
THE WEEKLY LAW REPORTS
1957
PARISH OF
CAISTER'
MARCH
14, 1958
[The Chancellor then considered the facts, and in the exercise
of his discretion concluded that the petitioners had not made out
a sufficient case to warrant the grant of a faculty.]
ON-SEA;
I~ ~e:
Faculty refused.
Solicitors: D. E. H. James, Norwich; Ruddock, Middleton et
Killin, Norwich.
[CENTRAL CRIMINAL COURT.]
C. C. C.
1957
Nov. 25.
Glyn-Jones J.
* REGINA
v. SMITH AND OTHERS.
Criminal Law-Indictment-Separate indictments-One charging man~
slaughter, the other stealing or receiving - Common evidence.,Joinder of charges in one indictment-Purpose of joinder-Volun"
tary bill.
Criminal Law-Evidence-Depositions-Reading. at trial-Substituted
voluntary bill of indictmenf--Criminal Justice Act, 1925 (15 &; 16
Geo. 5, c. 86), s. 13 (3): .
A and B were jointly indicted for manslaughter. In a separate
indictment A, B, C, D' and E were charged with stealing or
recelvmg. The prosecution intended to rely in one case on almost
all the evidence on which it relied in the otlier:Held, (1) that it was in the interests both 'of justice and of the
public that all matters alleged by the prosecution should be heard
and disposed of in one trial.
.
(2) That, silice neither indictment could properly be amended,
the judge should grant it. voluntary bill of indictment.
(3) That the evidence of the witnesses conditionally bound over
by the examining justices. could properly be read at the trial
proceeding upon the voluntary bill.
TRIAL ON INDICTMENT.
Henry Thomas Smith and Robert Semaine were jointly
charged, in one indictment, with manslaughter. In a second
indictment Smith and Semaine were charged with larceny and
with receiving stolen property, Eugene Charles Edward Candler
as an accessory after the fact to the charge of larceny and
receiving stolen property, and Edward George Richardson and
Charles William Richardson with receiving stolen property.
The witnesses to be called by the prosecution numbered about
30 in all. They were each (with the exception of certain medical
witnesses) to be called on the trial of each indictment to give the
same evidence on each occasion.
R. E. Seaton and E. J. P. Oussen for the Crown.
R. A. ,Kaye for Smith and Semaine.
Peter Rawlinson for Candler.
J ames Burge for Edward George Richal'dson.
'Victor Durand for Charles William Richardson.
[Reported by
DAVID CALCUTT,
Esq., Barrister-ai-Law.]