Cremation Act 1902
Encyclopedia
The Cremation Act 1902 was an Act of Parliament
of the Parliament of the United Kingdom
, given the royal assent on 22 July 1902. The major purpose of the Act was to allow burial authorities to establish crematoria. Later versions of the Act were used to outlaw open air cremations using funeral pyre
s, although in 2010 the Court of Appeal ruled this practice to be legal under certain circumstances.
No crematorium built could be closer than fifty yards to any public highway, or in the consecrated area of a burial ground. It could not be built within two hundred yards of any dwelling house without the written consent of the owner, lessee and occupier, and the act was not to be interpreted to "authorise the burial authority or any person to create or permit a nuisance".
The Secretary of State was to create regulations for the maintenance and inspection of crematoria, the circumstances in which they could be used, and the creation of a register of such burnings. All statutory provisions relating to the use of burial registers as evidence were to apply to these registers.
Any breach of these regulations, or burning of human remains outside of the provisions of the Act, would be liable, on summary conviction, to a penalty of up to fifty pounds. Any person found guilty of wilfully making any false representations in order to procure the burning of human remains would be liable to imprisonment with or without hard labour for up to two years; and any person found guilty of attempting to conceal an offence by attempting to procure the burning of human remains would be liable to imprisonment with or without hard labour for up to five years.
The incumbent of a parish was not under any obligation to perform a funeral service for those dying in his parish who were to be cremated; but if he refused to do so, any cleric of the Established Church who was not otherwise disabled from doing so could perform the service at the request of the executor, the persons in charge of the cremation, or the burial authority, with permission from the bishop.
The Act applied to England and Wales, and Scotland, but not to Ireland. It came into effect on April 1, 1903. The Act has since been heavily amended, but remains in force.
s were made illegal in Britain by the 1930 issue of the Cremation Act. Prior to this but after the 1902 Act, open air cremations had occurred in limited numbers, including several Hindu
and Sikh
soldiers cremated in Brighton, having been killed fighting for the British Empire in World War I. The last open air pyre was believed to have occurred in 1934, when the British Government gave special permission to Nepal's
ambassador to cremate his wife outdoors in Surrey
.
In 2006, Davender Ghai, a British citizen and devout Hindu who had arrived from Kenya
in 1958, launched a judicial review
of the Act after Newcastle-upon-Tyne City Council
refused him a permit to conduct open air cremations in Britain in accordance with Hindu religious practices, which require the burning of the body in a sacremental fire in order to secure the future reincarnation of the soul.
Mr Ghai, through his multi-faith Newcastle based charity the Anglo-Asian Friendship Society, had been campaigning for open air funerals for people of any faith, arguing there was significant demand from the increasingly aging British Hindu and Sikh communities who, due to the Act, often flew bodies of their relatives abroad for cremation. In July 2006, believing the law did not prohibit pyres, Mr Ghai organised the open air cremation of Rajpal Mehat, an Indian-born
Sikh illegal immigrant who was found drowned in a London
canal. Subsequent delays in identification had meant the body was not fit to be repatriated, and Mehat's relatives asked Mr Ghai to organise the ceremony in accordance with their beliefs. The ceremony, held in a field in Northumbria
, was Britain's first open air cremation since 1934. Informed prior to the ceremony, local police initially allowed it to take place, but then said it had been illegal. The Crown Prosecution Service
agreed, but ruled a prosecution would not be in the public interest. Shortly afterwards, Mr Ghai launched his judicial review to seek clarification of the law and the council's refusal under the Act.
In the review, Mr Ghai argued simultaneously that the Act did not outlaw open air pyres if done under the principles of the Act, i.e. in a properly authorised and private site and without causing public offence or nuisance, and that if it did, this was an infringement of the Human Rights Act 1998
, under Articles 8 and 9, specifying citizen's rights to religious freedom and a private and family life, respectively. The British Government, through the Department for Constitutional Affairs
(which in 2007 became the Ministry of Justice
), backed the council's decision and took an opposition stance during the review, on the basis that open air cremations would offend public decency; that the articles of the human rights were properly limited by the Act due to the wider societal implications of pyres; and latterly, due to environmental concerns arising from the practice of burning materials such as mercury fillings.
In seeking permission for his court challenge, in 2007, the High Court
ruled that "the burning of dead bodies in the open air is not necessarily unlawful" and allowed Mr Ghai to proceed. In May 2009 the High Court ruled the prohibition was justified, but granted Mr Ghai leave to appeal, as the subject was of significant public interest. In February 2010 the Court of Appeal
ruled that, as long as open air pyres took place within a structure of some sort, that the practice would be legal under the existing Act, although there were outstanding planning and environmental regulatory issues to be settled before pyres would actually be possible.
Act of Parliament
An Act of Parliament is a statute enacted as primary legislation by a national or sub-national parliament. In the Republic of Ireland the term Act of the Oireachtas is used, and in the United States the term Act of Congress is used.In Commonwealth countries, the term is used both in a narrow...
of the Parliament of the United Kingdom
Parliament of the United Kingdom
The Parliament of the United Kingdom of Great Britain and Northern Ireland is the supreme legislative body in the United Kingdom, British Crown dependencies and British overseas territories, located in London...
, given the royal assent on 22 July 1902. The major purpose of the Act was to allow burial authorities to establish crematoria. Later versions of the Act were used to outlaw open air cremations using funeral pyre
Pyre
A pyre , also known as a funeral pyre, is a structure, usually made of wood, for burning a body as part of a funeral rite...
s, although in 2010 the Court of Appeal ruled this practice to be legal under certain circumstances.
The Act
The Act deemed that any power to provide for and maintain burial grounds or cemeteries was to be considered to encompass crematoria.No crematorium built could be closer than fifty yards to any public highway, or in the consecrated area of a burial ground. It could not be built within two hundred yards of any dwelling house without the written consent of the owner, lessee and occupier, and the act was not to be interpreted to "authorise the burial authority or any person to create or permit a nuisance".
The Secretary of State was to create regulations for the maintenance and inspection of crematoria, the circumstances in which they could be used, and the creation of a register of such burnings. All statutory provisions relating to the use of burial registers as evidence were to apply to these registers.
Any breach of these regulations, or burning of human remains outside of the provisions of the Act, would be liable, on summary conviction, to a penalty of up to fifty pounds. Any person found guilty of wilfully making any false representations in order to procure the burning of human remains would be liable to imprisonment with or without hard labour for up to two years; and any person found guilty of attempting to conceal an offence by attempting to procure the burning of human remains would be liable to imprisonment with or without hard labour for up to five years.
The incumbent of a parish was not under any obligation to perform a funeral service for those dying in his parish who were to be cremated; but if he refused to do so, any cleric of the Established Church who was not otherwise disabled from doing so could perform the service at the request of the executor, the persons in charge of the cremation, or the burial authority, with permission from the bishop.
The Act applied to England and Wales, and Scotland, but not to Ireland. It came into effect on April 1, 1903. The Act has since been heavily amended, but remains in force.
Open air pyres
Open air funeral pyrePyre
A pyre , also known as a funeral pyre, is a structure, usually made of wood, for burning a body as part of a funeral rite...
s were made illegal in Britain by the 1930 issue of the Cremation Act. Prior to this but after the 1902 Act, open air cremations had occurred in limited numbers, including several Hindu
Hindu
Hindu refers to an identity associated with the philosophical, religious and cultural systems that are indigenous to the Indian subcontinent. As used in the Constitution of India, the word "Hindu" is also attributed to all persons professing any Indian religion...
and Sikh
Sikh
A Sikh is a follower of Sikhism. It primarily originated in the 15th century in the Punjab region of South Asia. The term "Sikh" has its origin in Sanskrit term शिष्य , meaning "disciple, student" or शिक्ष , meaning "instruction"...
soldiers cremated in Brighton, having been killed fighting for the British Empire in World War I. The last open air pyre was believed to have occurred in 1934, when the British Government gave special permission to Nepal's
Nepal
Nepal , officially the Federal Democratic Republic of Nepal, is a landlocked sovereign state located in South Asia. It is located in the Himalayas and bordered to the north by the People's Republic of China, and to the south, east, and west by the Republic of India...
ambassador to cremate his wife outdoors in Surrey
Surrey
Surrey is a county in the South East of England and is one of the Home Counties. The county borders Greater London, Kent, East Sussex, West Sussex, Hampshire and Berkshire. The historic county town is Guildford. Surrey County Council sits at Kingston upon Thames, although this has been part of...
.
In 2006, Davender Ghai, a British citizen and devout Hindu who had arrived from Kenya
Kenya
Kenya , officially known as the Republic of Kenya, is a country in East Africa that lies on the equator, with the Indian Ocean to its south-east...
in 1958, launched a judicial review
Judicial review
Judicial review is the doctrine under which legislative and executive actions are subject to review by the judiciary. Specific courts with judicial review power must annul the acts of the state when it finds them incompatible with a higher authority...
of the Act after Newcastle-upon-Tyne City Council
Newcastle City Council
Newcastle City Council is the local government authority for Newcastle upon Tyne, a city in Tyne and Wear, England. The council consists of 78 councillors, three for each of the city's 26 wards...
refused him a permit to conduct open air cremations in Britain in accordance with Hindu religious practices, which require the burning of the body in a sacremental fire in order to secure the future reincarnation of the soul.
Mr Ghai, through his multi-faith Newcastle based charity the Anglo-Asian Friendship Society, had been campaigning for open air funerals for people of any faith, arguing there was significant demand from the increasingly aging British Hindu and Sikh communities who, due to the Act, often flew bodies of their relatives abroad for cremation. In July 2006, believing the law did not prohibit pyres, Mr Ghai organised the open air cremation of Rajpal Mehat, an Indian-born
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
Sikh illegal immigrant who was found drowned in a London
London
London is the capital city of :England and the :United Kingdom, the largest metropolitan area in the United Kingdom, and the largest urban zone in the European Union by most measures. Located on the River Thames, London has been a major settlement for two millennia, its history going back to its...
canal. Subsequent delays in identification had meant the body was not fit to be repatriated, and Mehat's relatives asked Mr Ghai to organise the ceremony in accordance with their beliefs. The ceremony, held in a field in Northumbria
Northumbria
Northumbria was a medieval kingdom of the Angles, in what is now Northern England and South-East Scotland, becoming subsequently an earldom in a united Anglo-Saxon kingdom of England. The name reflects the approximate southern limit to the kingdom's territory, the Humber Estuary.Northumbria was...
, was Britain's first open air cremation since 1934. Informed prior to the ceremony, local police initially allowed it to take place, but then said it had been illegal. The Crown Prosecution Service
Crown Prosecution Service
The Crown Prosecution Service, or CPS, is a non-ministerial department of the Government of the United Kingdom responsible for public prosecutions of people charged with criminal offences in England and Wales. Its role is similar to that of the longer-established Crown Office in Scotland, and the...
agreed, but ruled a prosecution would not be in the public interest. Shortly afterwards, Mr Ghai launched his judicial review to seek clarification of the law and the council's refusal under the Act.
In the review, Mr Ghai argued simultaneously that the Act did not outlaw open air pyres if done under the principles of the Act, i.e. in a properly authorised and private site and without causing public offence or nuisance, and that if it did, this was an infringement of the Human Rights Act 1998
Human Rights Act 1998
The Human Rights Act 1998 is an Act of Parliament of the United Kingdom which received Royal Assent on 9 November 1998, and mostly came into force on 2 October 2000. Its aim is to "give further effect" in UK law to the rights contained in the European Convention on Human Rights...
, under Articles 8 and 9, specifying citizen's rights to religious freedom and a private and family life, respectively. The British Government, through the Department for Constitutional Affairs
Department for Constitutional Affairs
The Department for Constitutional Affairs was a United Kingdom government department. Its creation was announced on 12 June 2003 with the intention of replacing the Lord Chancellor's Department...
(which in 2007 became the Ministry of Justice
Ministry of Justice (United Kingdom)
The Ministry of Justice is a ministerial department of the UK Government headed by the Secretary of State for Justice and Lord Chancellor, who is responsible for improvements to the justice system so that it better serves the public...
), backed the council's decision and took an opposition stance during the review, on the basis that open air cremations would offend public decency; that the articles of the human rights were properly limited by the Act due to the wider societal implications of pyres; and latterly, due to environmental concerns arising from the practice of burning materials such as mercury fillings.
In seeking permission for his court challenge, in 2007, the High Court
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
ruled that "the burning of dead bodies in the open air is not necessarily unlawful" and allowed Mr Ghai to proceed. In May 2009 the High Court ruled the prohibition was justified, but granted Mr Ghai leave to appeal, as the subject was of significant public interest. In February 2010 the Court of Appeal
Court of Appeal of England and Wales
The Court of Appeal of England and Wales is the second most senior court in the English legal system, with only the Supreme Court of the United Kingdom above it...
ruled that, as long as open air pyres took place within a structure of some sort, that the practice would be legal under the existing Act, although there were outstanding planning and environmental regulatory issues to be settled before pyres would actually be possible.