Cremation Act 1902 - The Act - Open Air Pyres

Open Air Pyres

Open air funeral pyres 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 meant the body was not fit to be repatriated, and Mehat's relatives asked 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, Ghai launched his judicial review to seek clarification of the law and the council's refusal under the Act.

In the review, 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 Ghai to proceed. In May 2009 the High Court ruled the prohibition was justified, but granted 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.