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Burial and Cremation (Scotland) Act 2016

Exhumation

Section 27 – Exhumation of human remains

82.This section gives the Scottish Ministers the power to make regulations relating to the exhumation of human remains. Subsection (2) lists what such regulations may do. In particular, they may set out who may apply for an exhumation; provide for applications for exhumations to be made to inspectors of burial appointed under this Act or other persons specified by regulations; and provide for those people to grant or refuse an application.

83.Subsection (4) provides that the regulations cannot interfere with procedures for exhumation where a crime is being investigated, where criminal proceedings are taking place, where investigation of a death is taking place under the authority of the Lord Advocate or where inquiries are being made under the Inquiries into Fatal Accidents and Sudden Deaths etc (Scotland) Act 2016.

Section 28 – Exhumation applications: offences

84.Subsection (1) sets out that a person commits an offence in relation to an application to carry out an exhumation of human remains if, in connection with the application, he or she provides information knowing that it is false or misleading in a material way, or recklessly provides materially false or misleading information. Subsection (2) provides that a person who commits an offence in terms of subsection (1) will be liable on summary conviction to a fine up to level 3 on the standard scale.

Section 29 – Appeal to sheriff

85.This section sets out the process by which a person can appeal a decision in relation to an application to carry out an exhumation of human remains made by virtue of regulations under section 27(1). Subsections (2) and (3) provide that the person who made the application, or any other person who would have been able to apply for an exhumation by virtue of regulations made under section 27, may appeal to the sheriff against a decision to allow an exhumation, a decision not to allow an exhumation or any conditions attached to an exhumation which is allowed. Subsection (4) provides that any such appeal must be made within 21 days of the decision about the exhumation being made.

86.In response to an appeal against a decision to grant an application without conditions, by virtue of subsection (5) the sheriff may uphold the decision; uphold the decision and impose such conditions as he or she thinks fit; or quash the decision and refuse the application with effect from the date of the decision. Where an appeal is against a decision to grant the application subject to conditions, by virtue of subsection (6) the sheriff may uphold the decision or quash the decision and refuse the application with effect from the date of the decision. By virtue of subsection (7), where a sheriff upholds a decision under subsection (6), the sheriff may confirm, vary or remove any of the conditions subject to which the application was granted and impose such other conditions in relation to the exhumation as the sheriff sees fit.

87.Where the appeal is against a decision to refuse the application, by virtue of subsection (8) the sheriff may uphold the decision; quash the decision and grant the application with effect from the date of the decision; or quash the decision, grant the application with effect from the date of the decision and impose such conditions in relation to the exhumation as the sheriff sees fit. Where the appeal is against conditions subject to which the application was granted, by virtue of subsection (8), the sheriff may confirm, vary or remove any of the conditions and impose such other conditions in relation to the exhumation as the sheriff thinks fit.

Section 30 – Exhumation register

88.Section 30 requires each burial authority to prepare and maintain a register of exhumations for each burial ground for which it is the burial authority.

89.Additionally, subsection (2) requires each local authority to prepare and maintain a register of exhumations of human remains which were buried in a place other than a burial ground following authorisation by the local authority under section 22(3).

90.Both registers must contain information prescribed by regulations made by the Scottish Ministers under this section. Subsection (4) allows the Scottish Ministers to make regulations to set out the form of the exhumation register and how it must be kept, as well as other provisions.

91.The exhumation register is to be a public document and is to be kept indefinitely. Both burial authorities and local authorities must provide access to registers, and may impose a reasonable charge for doing so. Where a burial authority or local authority chooses to charge for access, it must determine what the charge should be. Similarly, a burial authority or local authority may provide extracts from the register for a reasonable charge. Subsection (8) establishes that any such extract from the register certified as a true copy by the cremation authority is sufficient evidence of the cremation for the purpose of any court proceedings.

Section 31 – Exhumation register: offence

92.A burial authority commits an offence if, without reasonable excuse, it fails to prepare and maintain an exhumation register as required by section 30(1) or (2). An authority that commits such an offence is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

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Text created by the Scottish Executive department responsible for the subject matter of the Act to explain what the Act sets out to achieve and to make the Act accessible to readers who are not legally qualified. Explanatory Notes were introduced in 1999 and accompany all Acts of the Scottish Parliament except those which result from Budget Bills

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