thinking about archaeology

Archive for March, 2014

Richard III in court

Royal Courts of Justice

I was going to start with the king’s eyebrows, but Max Clifford’s penis has to come first. While I watched the dissection of the Plantagenet Alliance’s claims in the Royal Courts of Justice in London on Friday morning, across the river, at Southwark Crown Court, the high-profile publicist heard his anatomy being discussed. A witness described conversations about the size of Clifford’s member. His defence barrister argued that if the witness had actually seen said member, as she claimed, she would know it was in fact “an average-sized penis”, and not “tiny”.

I’ve spent a day and a half in court, watching as barristers supported their claims with copious documentation. How did Clifford’s barrister back up his claim? A photo? (Presumably with some form of scale.) A witness statement? Or was it just flannel? I can’t help thinking it was a line the client may not thank his barrister for taking.

So onto the proper subject. The Plantagenet Alliance has now had its much publicised case about the reburial of Richard III’s remains aired and dissected in the High Court. Proceedings began on Thursday at 10.30am, and finished the next day before lunch. Lady Justice Hallett, the most senior judge present, closed saying, “We shall let you know our decision as soon as possible.” Anya Proops, counsel for the University of Leicester, suggests to me that might be in two or three weeks; the BBC thinks between four and six. So some time in April or May.

In the meantime, we can consider what was said. I am no expert in law and I may have misheard or misunderstood some of what was said (only words in quotation marks were necessarily spoken as written). But I do hope to capture the flavour of the occasion. It was wonderful to behold.

It begins with the architecture. On Thursday morning I had an errand at the Natural History Museum, so afterwards I travelled across London from Alfred Waterhouse’s 1881 cathedral to life (where the sun was burning the early mist off its glowing towers) to George Street’s 1882 fairy-tale paean to law – from one gorgeous Victorian temple to another. Inside, the Royal Courts of Justice really was like a cathedral, straight out of Look and Learn with shafts of coloured sunlight picking out small figures scurrying about on the decorated floor far below. You know important things happen here.

The courts and other rooms are around the nave, like a medieval monastery with its outbuildings. We are in Court 4 up on the right, the Lord Chief Justice’s court. With the presence of no less than three High Court judges – among them one deemed by BBC Woman’s Hour to be the eighth most powerful woman in the land – there can be little doubt as to the significance granted the hearing.

Court 4. Photo Daily Star/PA (Released to publicise the first selected court broadcasts in October 2013. There were no cameras in this case)

Photo Daily Star/PA (Released to publicise the first selected court broadcasts in October 2013. There were no cameras in this case)

We sit in banks of long, dark oak benches facing the high podium to be occupied by the judges; I’m just left of the central passage. Groups coalesce as people enter. A porter wheels in boxes of files and arranges them in piles on the benches on my side, and sets out glasses of water. Wigged barristers trail smaller trolleys, like stewards for a legal airline, efficiently striding through crowds of confused flyers.

In front of me, I recognise Matthew Howarth from the press releases Gordons’ issued about their judicial review expert: so this set must be representing the Alliance. A larger group gathers across the passage to my right. This must be the combined forces representing the defendants – the Secretary of State for Justice, the University of Leicester, and Leicester City Council. Behind them are members of the university – including Richard Buckley and senior Pro-Vice-Chancellor Mark Thompson – the city and the cathedral. A woman in front of me lays down her folded Financial Times, Blackberry and iPad. iPads are popular notebooks.

Journalists sit between us and the judges in a small bank of seats on the left – I can see Peter Warzynski from the Leicester Mercury – and opposite them to the right further seats are mostly empty but for a group from Darlow-Smithson, who made the two Channel 4 films about the dig, and who must by now have left the hardly-believing-their-luck stage far in the distance (along with their cameras, in this instance). Somewhere out there, I later realise, must be BBC East Midlands’ Quentin Rayner, who tweets throughout. Behind me are members of the Alliance and supporters, among them Vanessa Roe (who describes herself as Richard III’s 16th great niece), Phil Stone (Chairman of the Richard III Society), Philippa Langley and John Ashdown-Hill. A historian might look down from high above through the ornate, oak-framed roof lantern, and draw a battle plan.

Photos: Blackstone/KBW

Gerard Clarke, James Eadie QC, Anya Proops and Andrew Sharland. Photos: Blackstone/KBW

The Alliance fields two barristers, in conventional black robes, black suits and curly-backed wigs. The senior man throws himself about, talking across to the journalists, turning to beam at the Ricardians behind me, strumming fingers on the bench, pouting lips, leafing pages, sitting down and standing up again. He is Gerard Clarke of Blackstone Chambers, described as one who can “easily win the trust of a judge with the eloquence of his presentation”. He leans over towards the defendants and addresses James Eadie QC (“absolute mastery of every issue in any case that he is in”), a colleague at Blackstone Chambers who is representing the Secretary of State for Justice. Mr Clarke offers to do the whole thing in the voice of Laurence Olivier.

It is 10.30.

“Court rises.”

The three judges enter from the back. We all stand and bow, and then we sit, except one. Olivier begins.

He introduces the parties and proposes a summary of their positions, “I hope fairly”. The Plantagenet Alliance believes the licence issued by the Ministry of Justice, under which Richard III’s remains were excavated, was inadequate to the job. In such exceptional circumstances, there should have been a consultation about where the remains were to be reburied. Instead, the Secretary of State simply left the decision to Leicester University.

But almost at once, Lady Justice Hallett, flanked by her male colleagues, interrupts. She seeks clarification about the nature of the consultation the Alliance proposes.

“We have never suggested”, says Mr Clarke, “and we do not suggest, a come-one come-all… that would be absurd.”

Her Lady Justice persists. Who would be consulted? English Heritage? Various churches? Distant relatives? Any other groups?

Mr Clarke refers to tab 53, bundle 12, process document October 2012, council documents… Do you say modern culture community? interjects her Lady Justice. Leicester? Are you asking for a public consultation?

Yes, says Mr Clarke… but differently weighted. Someone “writing in green ink from Australia” would carry very little weight; York, Leicester, maybe more weight.

“What form of consultation do you have in mind?”

Mr Clarke suggests something on a website.

“What exactly are you saying?”

He continues to appear evasive. The Secretary of State for Justice did not inform himself before the decision about reburial, he replies. One way to do that is a public consultation. We are asking for the right to be consulted.

What, asks her Lady Justice, might be the consequences if you are successful? Would the licence be quashed? Or is it the failure to revisit that concerns you?

“Substantially the latter”, says Mr Clarke.

Already, I’m puzzled. If Mr Clarke’s famed eloquence has yet to win the trust of her Lady Justice, what is Matthew Howarth thinking, sitting motionless and expressionless behind his barristers, his chin in his left hand? “The alliance’s lawyers will argue on Thursday,” said his firm’s press release issued ahead of the hearing, that “the failure to adopt appropriate consultation was unlawful and amounted to breaches by the ministry, university and city council which should cause the licence’s terms to be quashed.” Quashed: the word used by her Lady Justice, but now apparently largely dismissed by Mr Clarke. Was the release a ploy to confuse the enemy? Has the Alliance changed its tack? Or are barrister and solicitor not in full communication?

Mr Clarke is now talking about medieval history.

“Can we focus?” asks her Lady Justice.

“We’re still a monarchy, and it still matters… Except Harold, we don’t know where he is…”

It is the turn of Mr Justice Ouseley, sitting on her Lady Justice’s right, to interrupt.

“We can take it”, he says, “that a decision was made by the next monarch where the body should lie”, the place where its remains were subsequently discovered. He seems to be implying that a reburial elsewhere – not perhaps a few hundred metres from the car park, but certainly outside Leicester – might go against the wishes of King Henry VII (his famous son unfortunately demolished the friary church, so that is no longer an option). Royalty looms over the court. Behind the judges rises a huge royal coat of arms; its carved oak lions glisten.

Who knows the wishes, replies Mr Clarke, of Henry VII? It’s all “history and propaganda”. But, pushed, he concedes that the “best conjecture is that Henry did have some control”. Henry did later build a tomb for Richard, “but it’s all very conjectural”. “What is certain”, he adds, is that there was no state funeral or ceremony. Anyway, “it doesn’t matter what Henry VII did, because nobody is saying [that Richard’s remains] should go back to the car park.”

He’s winging it. This wasn’t in the script.

“We’re asking for a principled approach to an unprecedented, and unrepeatable, situation.” That was. So finally we move on to the submission, the Alliance’s claims.

We asked the Commonwealth War Graves Commission, says Mr Clarke, what happens if someone digs up a man with no direct descendants? They said, we would ask the nearest descendants.

Her Lady Justice: Are you suggesting this is the same as people who didn’t even know they were related until a few years ago?

Mr Clarke: “It goes to weight. There can be no arbitrary cut-off point.”

Her Lady Justice: Did Mr Nicolay realise in 2012, as the press suggested? (Stephen Nicolay, who calls himself a 16th great nephew of Richard III – the king left no direct descendants, only collateral ones – is a founder member of the Plantagenet Alliance.)

Mr Clarke: He used to be an archaeologist.

Her Lady Justice: On your argument, his recent realisation of his relationship to the king gives less weight to his claim to be consulted.

Mr Clarke concedes the point, and her Lady Justice continues by suggesting he is “being unfair” in tarring Leicester as the only party with a commercial interest in the reburial.

But Mr Clarke is off embracing wider issues. “There are debates about colonialism”, he says, “when you have a whole museum full of bits of Maori.” Yes, that’s what he said. The neolithic Iceman comes into it somewhere. “We are not as close as 1916,” says Mr Clarke of Richard’s remains, “but we are closer than the neolithic.”

Mr Justice Ouseley asks a question. Until the skeleton was identified as that of Richard III, he says, the ministry’s policy was the right one, was it not? What policy deals with revisiting after the identification? “There isn’t one”, he suggests.

Mr Clarke: The Secretary of State should have had a rethink, a revisit, once it became clear there was a named person involved. He refers the judges to “paragraph six of m’learned friend’s skeleton”.

In the circumstances, over the day and a half we are thankfully spared much clowning around with puns (a party’s skeleton argument is a written pre-court summary of their case; it is supposed to be brief). Nor do we get too much Shakespeare, though Mr Clarke is unable to resist reading out a bit of Richard III at the start, contrary – he says – to his own pledge to avoid the bard. Later on this first day the University’s barrister, opening in the afternoon, comments bashfully that she has “the graveyard shift”. And that’s about it. Credit where it’s due.

Her Lady Justice continues on the theme of identity. We are agreed, she says, that any descendants’ relationship to the king is a weak part of the case, so why are we getting hung up on the “named individual”?

From public comments by Nicolay and other members of the Alliance, who I imagine sitting behind me wondering quite where this is going, their relationship to the named individual is key to the case. As also is the burial of the remains in York (or in the words of the Petition to bring Richard III back to Yorkshire, “the safe return of Richard III to his beloved Yorkshire, where he spent the happiest days of his life”. And no doubt gambolled with lambs.) Yet the legal issue is whether or not to have a petition about the reburial site, not to decide on the strength of York’s case. I feel that this expensive, time-consuming process will have little impact on the Plantagenet Alliance (whose own court costs are being borne entirely by others, not least taxpayers). They will be back.

Mr Clarke responds to her Lady Justice by saying that the point about identity, is that after it was realised “early last year” that the skeleton was Richard III’s, then there should have been a “rethink” about the exhumation licence. A point well made, though he seems to be accepting that the Alliance’s claimed relationships to the king are not particularly material. (An aside. For legal reasons to do with time allowances, the Alliance needs to argue that Richard III was found on February 4 2013, the day of the grand press conference announcing the scientific proof. It would suit the defendants to argue that he was found on the day he was dug up, in September 2012. Unfortunately for them, they lost that argument – or the case would never have come to court.)

“You can spin the numbers about petitions,” Mr Clarke is saying. “One doesn’t need to go there.” He is presumably referring to competing online petitions for Richard’s reburial in York and Leicester. Leicester won.

There is an unexpected shout behind me. I recognise Philippa Langley’s voice.

“I have to say something,” she says. Is this it already, the backlash? Can Philippa Langley read my thoughts? (She can apparently see through tarmac.)

“So much of the information here”, she says, “is being misrepresented.” She is in effect attacking her own barrister. The defence hasn’t even stood up yet.

Her Lady Justice, perhaps accustomed to the occasional outburst from the public benches, gently moves things on. But a little later she does something that sounds – and this is later confirmed to me by one of the barristers – as quite out of the ordinary. She invites Langley to submit a written statement.

“After all,” she says in truth, “we wouldn’t be here if it wasn’t for her… You are Miss Langley, are you?”

Miss Langley’s scrap of notepaper is passed around. To coin a phrase used by a judge last year in this case, we seem to be on the verge of entering Alice in Wonderland territory. Her Lady Justice proposes a five minute break, and the judges nip out the back.

When we reassemble, the public are none the wiser about the note, and its impact on proceedings is impossible to know. “That’s the end,” says her Lady Justice firmly. No more notes. And so Mr Clarke reaches his case against Leicester Council.

This seems to be based on a notion that, under the Public Health Act (1984) local authorities have a responsibility to “inter decently” human remains found in their parish. The council “can’t just step back and say it has nothing to do with us” (which clearly in this case they are now happy to do, after some toing and froing). But this is “all about bodies, not remains”, interjects her Lady Justice. “What’s left of your argument?”

She persists as he rambles. He’s flailing. The local authority has a duty to hold a public consultation, he says, a common law obligation.

“Why?”

“Can I just ponder that”, says Mr Clarke, “for a moment?”

It is with some relief, I imagine, that Mr Clarke moves on to the university, as he glances at the clock on the wall above the little entrance hall at the back right corner of the room. It is 12.35.

Yet the case Mr Clarke presents seems to be no clearer than his previous two. A potentially interesting discussion about whether or not “other burial ground”, as listed on the exhumation licence, can include a building or not takes up a bit of time but ends with the conclusion that it can, and we are where we began.

“Can it be interred in a church?” asks Mr Justice Ouseley.

Mr Clarke: “Could I ponder that over adjournment?”

Mr Justice: “I raised the issue three months ago!”

Mr Clarke: “I don’t know.”

He then appears to blame the Secretary of State for Justice, who should not have “constrained the licence” – which is to say, acceded to the university’s suggestion that reburial of a king, if found, would occur in Leicester Cathedral – in the first place. We seem to have left the university behind.

Discussion moves onto the nature and powers of a panel which might advise on the matter. This harks back to a recommendation made in August 2013 by Mr Justice Haddon-Cave – who presently sits on her Lady Justice’s left, and so far has maintained complete silence – that the warring parties avoid further court appearances by referring to “an independent advisory panel”. Composed of “suitable experts and Privy Councillors”, this would deal with “the fundamental question – as to where and how Richard III is reburied”, by “consult[ing] and receiv[ing] representations from all interested parties, and mak[ing] suitable recommendations with reasonable speed”.

Her Lady Justice is unclear how this would work.

“Which of the 10 million collateral descendants”, she asks, should write a letter to the panel?

“Would the panel have had a duty to consult the public?” asks Mr Justice Ouseley.

Mr Clarke, I think, says no. “So you wouldn’t have been happy?” suggests Mr Justice. Presumably not. But if the panel didn’t have to consult, Mr Justice Ouseley continues logically, neither did the Secretary of State.

We are now, somehow, on the subject of Article 8 of the European Convention on Human Rights. Or we are meant to be.

“We’re talking about Article 8, Mr Clarke”, says her Lady Justice, stabbing her hands in the air. “Let’s stick to the point.”

She is, it feels, almost losing her patience. Mr Clarke admits that Article 8 “is of very low relevance” to the case. We break for lunch.

Leicester Cathedral in 2013

Leicester Cathedral in 2013

Back in court, the subject is who wants Richard’s remains buried where. “The Richard III Society are neutral on where burial should occur,” says Mr Clarke, adding that he heard this from the chairman in the morning. “Which isn’t the same as the Looking for Richard Project,” says Mr Justice Ouseley. York Minster is neutral, says Mr Clarke, after her Lady Justice suggests that many who might have been consulted would have been neutral. So is her Majesty the Queen, she adds.

And so to the defence for the Secretary of State for Justice. This is currently Chris Grayling, but the licence was issued under Kenneth Clarke QC. Curiously, Grayling was appointed the day after the licence was granted, and on the day the excavation of Richard III’s skeleton began.

Mr James Eadie QC was cast to oppose Mr Clarke. He dispenses with theatre, bluster and anecdote, and restricts his argument entirely to matters of law. He supports his case with substantial documentation. While the judges leaf through folders of papers and read to themselves as instructed, the court is largely silent – though the level of shuffling behind me rises. Members of the Alliance like theatre.

Indeed, it occurs to me that the entire proceedings are theatrical, or perhaps televisual. The Plantagenet Alliance, a ramshackle collection of characters and opinions, for whom legal process is a thing of mystery replete with options – a giant galactic sweetshop – has found its appropriate counsel. Mr Clarke is a merry-go-round, colourful and entertaining. By contrast, Mr Eadie is a bullet train. No curlicues reduce the speed with which he slips through the air towards his target. The merry-go-round goes round, flinging the occasional soft ice cream into the crowd, music plays, children laugh – and then it stops, and you are where you started. Mr Edie’s train rises among a crowd of newspaper-clutching grey suits and emerges in a bright land of aloha shirts and sunshine. Here is a counsel for bureaucrats and academics, unemotional, balanced, and frighteningly well-informed.

The core of his case is that the law clearly recognises instances in which there is a duty to consult. Such instances are limited. The relevant common law is complex, but none of it applies to the archaeological exhumation of human remains. He presents his argument with reference to legal principles, and with examples of applications.

Ultimately, he says, it comes down to significance. But one cannot build a consultation simply on the fact that the remains in question are of a king. Besides, there is nothing inconsistent with dignity and respect were reburial to occur in Leicester. There is no basis for the creation of a consultation, he says, on the principle that the reburial decision is “important”. “It is for the government to decide” (namely, the Secretary of State for Justice).

Judges do not interrupt Mr Eadie. Every so often Mr Justice Ouseley picks up a point in agreement, occasionally with a little laugh. I notice Lady Justice Hallett’s wig. It is magnificent, perfectly round and smooth, with a sheen, like a helmet; by comparison, Mr Justice Ouseley’s looks as if it has shortly emerged from a briefcase.

The case for revisiting the licence, says Mr Eadie, is as flawed as the case for a consultation. The Secretary of State knew from the outset that remains of Richard III might be found – that fact was, after all, mentioned in the licence, as was Leicester Cathedral.

Mr Justice Haddon-Cave, who granted the review on the grounds that “that there was a duty at common law to consult widely as to how and where Richard III’s remains should appropriately be re-interred”, continues to sit in silence, with a still expression of inscrutable bemusement. Is he embarrassed at having supported a review which he now sees has no merit? Is he proud at having been party to such a penetrating defence? Or is he inwardly concocting a demolition of Mr Eadie’s case?

It is ten minutes to four. The graveyard shift.

Ms Anya Proops, who rises to defend Leicester University, is at once entertaining and witheringly forensic – a Flying Scotsman, perhaps. She speaks fast. Everybody sinks back into their seats a little, anticipating a reprimand for not listening properly. Perhaps that accounts for the near silence of all three judges. They do not wish to be caught out.

“It is not our job”, she says – she talks throughout as if she is the university – “to play nanny to the Secretary of State. We are very clearly not a proper defendant in these proceedings.” Nonetheless, now that we are here, we might as well destroy the case brought against us.

Many of her points have already been made, by Mr Eadie or the judges. But she adds detail. Human remains guidance issued by the Department for Culture Media and Sport does not bind the university, and anyway refers to “close relatives”, and is concerned with the return of aboriginal remains. Mr Clarke referred to paragraph 18 in English Heritage’s guidance. This notes that “Ethical treatment of human remains involves making decisions that take into account, via appropriate consultation, the views of individuals and groups with legitimate interests in those remains.” He did not refer to paragraph 20. But she will. The judges leaf through folders.

“… it would be ethical”, says paragraph 20, “to accord views of living close family members strong weight. When excavation of 18th- or 19th-century burial grounds is planned, reasonable steps, such as advertisements in local newspapers, should be taken at the start of project planning to alert local people who may be descendants of interred individuals so that their views may be heard.”

Recommended consultation is here defined as being local, and with “close family members”. Later, outside the court, I ask Richard Buckley if ULAS has ever held such a consultation? Oh yes, he says. We excavated a couple of non-conformist chapels, and advertised in the local paper. No one came forward.

Mr Clarke, I suspect, can see where this is heading. He stands up. “This is misrepresenting my case”, he says. You will have your chance of reply, says her Lady Justice. He sits.

But if consultation is not local, asks Ms Proops, how will that work? Suppose there are 10 to 17 million people who have to be identified. Say a million come forward. How do you establish if they have a legal right to be consulted? DNA tests?

The “finders keepers” allegation levelled at the university is unfair, and ignores the facts of the case. The original Leicester burial ground, chosen by Henry VII, has a “royal seal of approval”. It is standard archaeological practise to rebury nearby – it’s not as if Leicester archaeologists found Richard III in York and sought to take him to Leicester. Yet we found the remains: we are not, and could not be seen to be, neutral, so it would be wrong for us to hold a consultation. Exhumation can be conducted by private bodies or individuals, not just public bodies. So a judicial review (which examines the lawfulness of a decision or action made by a public body) is not appropriate to our case.

Then an interesting point emerges. The licence, says Ms Proops, endorses the university’s position on reburial (ie to be in Leicester Cathedral) – we see that as a restraint.

Mr Justice Ouseley points out that the licence allows the reburial to occur anywhere. (Not only does it not name an individual, but it allows for deposition of remains in a specified museum, or “in a burial ground in which interments may legally take place”.)

Ms Proops replies that the licence has to be read with the application form, which specifically states that reburial of Richard III’s remains will occur in Leicester Cathedral. In effect, the form is an integral part of the licence.

This seems to be Mr Eadie’s position, too. When he said the Secretary of State knew Richard III’s remains might be found because they were “mentioned in the licence, as was Leicester Cathedral” (my phrasing, as above), he is using the word “licence” to embrace the application form, which is where that fact appears.

There are dangers, however, in taking this argument too far. In the image below, I’ve pasted an extract from the application form, the complete licence and the complete accompanying letter (compressed, but all there). With hindsight, one could argue that things might have been better thought out.

Licence etc

Firstly, the application form, as Ms Proops indicates, opts to bury Richard in the cathedral. This is not, however, repeated in the licence, nor the accompanying letter. Neither is the “intention” for the burial to be “within 4 weeks of exhumation”. This point was inserted, perhaps, as a result of the murky “contract” between Philippa Langley and ULAS which I discussed in my previous post, and also the archaeologists’ belief that finding Richard was an “unlikely event” to such an extreme that it was barely worth considering – they must have known that adequate study of a king’s remains would require more time than that, as it plainly did. And finally, an awkward party might choose to focus on the phrase in the licence, in bold type, that grants permission for the removal of the remains of “persons unknown”. Does that imply that the removal of “persons known” was not licenced?

Ms Proops ends in triumph. We had promised Leicester Cathedral a reburial as a result of the “brave and ingenious work” of our archaeologists, including Mr Buckley. We have made one of the country’s greatest archaeological discoveries. Clever Leicester.

The next morning we hear the council’s case, and Mr Clarke’s reply. Each had promised, in response to Lady Justice Hallett’s query at the close of Thursday, about half an hour. Mr Andrew Sharland speaks for Leicester in 13 minutes; Mr Clarke’s response, and the judges’ questions, continue for just over an hour.

Mr Sharland really has little need to talk at all: it feels the judges successfully dismissed the Alliance’s case against the council on Thursday. He is a brisk speaker, clear and confident, racing through his presentation like a sprinter. The council’s common law duty to bury human remains applies to paupers, he says, slicing his flattened palms through the air. “The king of England is not a role usually associated with poverty.” £1.3m (he does the sums) is enough to pay for the reburial without the council having to chip in, and no one has a right or expectation to consult it. “My Lords and Ladies”, he concludes, grasping a proffered water bottle without missing a stride, “that is sufficient to dispose of the case against the council.”

So back to Mr Clarke – but we have an unexpected diversion. Despite my clear instructions yesterday, says her Lady Justice, we did receive more handwritten notes. There is one from Mr Ashdown-Hill, signed by Ms Langley, one from the Deputy Chair of the Richard III Society, and another from the same society… “We have a bundle, m’Lady,” says Mr Clarke. On the bench behind him is a loose scatter of pages torn from notebooks. The writing is all in black ink.

Mr Clarke responds in the style to which we have become accustomed. Mr Eadie goes to the law, he says, while we go to the facts. Among which is the information that his late tutor never used the word Tudor. At the Ministry of Justice, at an early stage Mr Robert Clifford “took an interest”, he “flagged up the issue” of what might happen should a king be found, but the Secretary of State did not follow through. He effectively made no decision: the court should intervene.

Her Lady Justice: “I infer these steps take us back to consultation.”

Mr Clarke: Yes (a simple word that does not come easily to the speaker, but this is, I think, what he means by his reply).

Her Lady Justice: Are you saying, had the Secretary of State consulted collateral descendants, would that be enough?

Mr Clarke: “That is an academic question.”

Mr Justice Ouseley: “That is the question.”

Her Lady Justice repeats it, Mr Clarke obfuscates.

Her Lady Justice: “I am just trying to pin down exactly what your case is. I’m finding it difficult.”

And when she suggests that if his case was right, consultation should extend beyond collateral descendants, Mr Clarke appears to answer back. He does not like to be told how to present his case.

And so it goes on. Mr Justice Ouseley continues to prod. “You need to explain to us what it is that the Secretary of State has failed to do”, he says. And then, when no one was expecting it, a voice comes from the right side of the judges’ bench. Mr Justice Haddon-Cave speaks!

“It is pretty basic stuff”, says Mr Justice, to make your case clear to the court. He repeats Mr Justice Ouseley’s query. Mr Clarke adjusts his wig, no Olivier now, more of a stage hand.

“Let me step back from that point,” he says “Some people say that Henry I is missing…  Harold… James II ended up in Paris…”

Her Lady Justice: “I think you’re straying again.”

“Edward V…”

Her Lady Justice: “Is there a duty to consult the public on a present monarch?”

Mr Clarke: “No, that would be bizarre.”

After her long service to the country, says Mr Justice Ouseley, this is a matter in which we all have an interest – some people might say her burial should not be in London. If, says Mr Clarke, “the awful event on the awful day” were to occur in Lowestoft, we wouldn’t bury her in Lowestoft.

Mr Justice Ouseley: “I can’t help think [Richard III] would have raised an eyebrow at the thought of a public consultation. Kings of that era were not democrats.”

Mr Clarke: “He would probably have raised two eyebrows if someone had told him he would be buried in Leicester.”

A little later, her Lady Justice asks Mr Clarke to “stick to the arguments, please? Can we avoid forensic flourishes, I am not finding them helpful?”

To which, without a pause, Mr Clarke replies, “Here is a forensic flourish…”

And so at last, at 11.36am, we reach the end. “We shall let you know”, says Lady Justice Hallett, “our decision as soon as possible.”

Buckley Royal Courts

Richard Buckley (left), Philippa Langley (centre)

We walk out into the warm sun, funnelled through works on the pavement along the front of the courts (“Having to compete with this right outside the High Court for #RichardIII judicial review,” tweets news reporter Quentin Rayner. “No bones yet. Deafening”).

There is no doubt where the wind blows. Beaming in the bright light, Richard Buckley sets off to buy cheese at Covent Garden before heading home to Leicester. Counsel for defence stride confidently out into the streets, laughing and chatting. Philippa Langley talks to journalists, looking anxious. After the first day, I told Buckley I would eat my hat if the Alliance won. He famously had to eat his when they found Richard III, which he did in the shape of a cake. No one, I feel, will need to bake for me.

But how sure can I be? The argument put by counsel for the Secretary of State for Justice, that there are neither legal principles nor examples of practice to support a case for consultation, is compelling. Yet is it not in effect an argument that backs the Alliance’s case? Of course there is no principle and no practice – that is the point. How could there be, when the nature of the case is that it is unique? The modern exhumation of a king’s remains is unprecedented, and of great public significance. It calls for unprecedented acts.

As Mr Justice Haddon-Cave said in granting the Alliance the right for a judicial review, the remains represent “not only a named individual with potentially traceable lineage and descendants, but also a former monarch and a significant historical figure, whose re-interment was likely to be a matter of legitimate national interest”. Accordingly, “There was a legitimate expectation that the Secretary of State would… consult widely to how, and where, Richard III’s remains should be appropriately re-interred” (leaving aside the parenthesis that the Secretary of State was supposed to do this “prior to granting a Licence”, as legitimate exhumation could only occur when the remains’ identity was unknown, creating a logical conundrum).

For archaeologists, at least, if such an argument won, the implications could be appalling. If public consultation could be insisted upon on the grounds of the significance of remains, would that not potentially open the way for every exhumation to be preceded by consultation? Who is to say who is or is not, or was or was not, of great significance in the past? Archaeological excavation as we know it could grind to a halt.

Peter Warzynski interviews Philippa Langley

Peter Warzynski interviews Philippa Langley (centre); counsel for the university (left)

After the hearing, I asked John Ashdown-Hill what outcome he favoured. His answer is interesting. There is a key point here, that is easy to miss in the immediacy and relentlessness of everything that has happened in this case since September 2012.

Ashdown-Hill told me he hoped for a public consultation – he had no particular strong feelings about where the remains should be buried, but he thought the issue should be debated. Had you always thought that, I asked, or was this a view you came to more recently, after, for example, the judicial review was granted?

At first, he replied, we wanted him to be buried in Leicester Cathedral – he and Philippa Langley actually spoke to the cathedral authorities about a reburial ceremony before the dig began. But later, he changed his mind. Hearing parliament debate the possibility of a state funeral made him think: this is too important for us, for Leicester University, it should be a national decision.

And that’s what happened to everyone. Finding Richard III’s remains changed the game. We know the archaeologists never expected to find the king. Clearly the Plantagenet Alliance hadn’t expected it, if they had thought about it all. At the time of the dig, they didn’t even exist. But neither had anyone else, whatever they might have imagined or said at the time. In the real world, you don’t dig a small hole in a car park and find a king.

The Ministry of Justice hadn’t expected the discovery, else how do we explain the problems with the licence? For Ashdown-Hill and Langley, finding Richard was a dream, a thrilling vision, that would allow them to prove to the world what a great monarch the man had been. They hadn’t thought it through. They hadn’t anticipated the proof that Richard III was, in Shakespeare’s word, “deformed”. Nor had they expected to be midwives to the evidence for his brutal, undignified death; the forensic scraping and prodding, the destructive analyses, the bickering and shouting. They hadn’t realised that, by finding Richard’s remains, they would lose control of their private monarch. Because, deep down, they hadn’t believed they would find him. No one had.

Outside the front of the court, Langley speaks to Peter Warzynski. “She said she would never have gone ahead with the dig”, he reports, “if she had realised the king would be treated as an ‘archaeological specimen’. She said: ‘The whole ethos of this project was that it wasn’t an archaeological dig… It was a reburial project from the get-go.’” Whatever exchanges took place between Philippa Langley and Richard Buckley, clearly everyone knew this was an archaeological dig. That was never in question. The question was what would be found. And no one, in their deepest hearts, answered that with the name of a king.

And here’s the twist. It could happen again.

The Burial of Henry I at Reading Abbey, 4 January 1136, by Harry Morley (1916). Photo Reading Museum

The Burial of Henry I at Reading Abbey, 4 January 1136, by Harry Morley (1916). Photo Reading Museum

On at least once occasion, Mr Clarke got mired down in court with a discussion about the grave of Henry I: its location wasn’t known – or perhaps it was. Or was it Henry II’s grave?

He was onto something. Henry I was buried in Reading Abbey (having founded the abbey himself in 1121), after dying in Normandy at the decent age of 67, from eating lampreys (a sort of fish that looks like a cross between an eel and a leech). All that now remains of the abbey above ground are a few crumbled walls: it was demolished under Henry VIII’s orders, like Grey Friars in Leicester, in 1539. As Richard Buckley told me, the situation is exactly the same as pertained in Leicester before the excavation. We know the king was buried in a church. The church has gone, for the same reason, but we know more or less where it was. What we don’t know is where the grave is – if it still exists.

There’s only one way to find out.

Photo Iain MacFarlane

Photo Iain MacFarlane


Does handling of Richard III’s bones raise serious questions?

University of Leicester press photo

University of Leicester press photo

Some think so. Are they right? We’ll need a clear head for this, as some of the allegations imply professional wrongdoing, and the issues reach beyond a dead monarch.

The Independent (a national UK paper, on March 4) and the Yorkshire Post (a regional paper, on March 8) recently published the same letter from five people writing under the rubric, the Looking For Richard Project: John Ashdown-Hill, Annette Carson, David and Wendy Johnson and Philippa Langley. Here are all the important points in their letter (I’ve broken it down, so there is more repetition than in the original):

First the main issue.

1. A plan by the University of Leicester to “subject the mortal remains of Richard III to further destructive tests in order to sequence the king’s genome raises serious questions of propriety and ethics.”

Next the behaviour of the University of Leicester.

2. “The university has… authorised itself to conduct [these] tests”.

3. The “university’s custodianship of the remains is currently subject to a legal challenge and therefore sub judice.”

4. So the proposed testing shows “a cavalier disregard of the legal process”.

The validity of the scientific study is questioned.

5. “There has been no independent verification that these tests are ethical.”

6. “There has been no independent verification that these tests are necessary.”

7. These tests “are far from essential and will add very little to our useful knowledge of England’s last Plantagenet king.”

Lastly, the relative merits of the university and Philippa Langley to determine and own research into the remains are set out.

8. Philippa Langley of the Looking For Richard Project “instigated and raised the funding for the archaeological search” that found Richard III’s grave.

9. Langley had a “contract” regarding this search with University of Leicester Archaeological Services (ULAS), “freely entered into before the archaeological search began”.

10. In this contract, “essential initial testing to confirm the king’s identity was sanctioned” by Langley.

11. The contract also stipulated that “any remains positively identified as Richard III would be transferred to her as custodian to be placed in a prayerful environment to await reburial.”

12. The university has “refused to honour” the contract.

The letter sets these points out clearly and plainly. Further statements and comments on these and related issues are widespread on the web. It’s useful to bring some of these in as well. The Independent ran a piece about the letter, which attracted several comments. One of them seems to represent the feelings of people who would agree with the letter:

I would like to take issue with the above article on several points. Firstly, the article states that ULAS identified the site of Grey Friars in 2012, this is untrue. The location had been known since at least the 1980’s (see Good King Richard by Jeremy Potter). Further independent research by Philippa Langley and John Ashdown-Hill confirmed the location and offered the project to Time Team in 2005. Regrettably this was not undertaken. ULAS became involved only when the Looking for Richard team hired them, at some great cost, to undertake the dig. Furthermore, although the body of King Richard was discovered on the first day, it was completely ignored by ULAS and only returned to at the insistence of John Ashdown-Hill.

My second point concerns the research undertaken by ULAS. It was agreed by the Looking for Richard Team that for identification purposes only DNA testing on should be carried out [sic]. A process that was only possible by the meticulous research of John Ashdown-Hill on King Richard’s mitochondrial DNA and the identification of Michael Ibson [sic] as a living relative. It was agreed that upon completion of these tests and successful identification, the King’s remains would be handed over to Philippa Langley as custodian, with the intention of placing them in a place of Holy Sanctuary while awaiting reinterment. ULAS have behaved disgracefully, first by choosing to ignore the terms of their agreement and secondly by treating the King’s remains with such a cavalier attitude that denies him any dignity or honour. The casual decision to undertake genome testing, which Turi King made over drinks with a member of the Wellcome Foundation is arrogant in the extreme. The in-house ethics committee approval for the testing beggers belief – there is nothing ethical about an institution approving a project by which it is likely to gain the most profit for itself.

Thirdly these genome tests will have nothing to add to our understanding of King Richard. His hair and eye colour are known; any diseases/virus he may have been prone to in later life are of no significance, since they did not contribute to his death, and whether he was lactose intolerant or not is hardly of such groundbreaking science that it will benefit the world.

I can only finish by commending the Looking for Richard Team on their skill and professional approach to the project. It is a pity I cannot do the same for ULAS. Patricia Rice-Jones

DISCOVERY

Photo Diana Courtney, in Ashdown-Hill 2010

Photo Diana Courtney, in Ashdown-Hill 2010

Let’s start with how the remains were found. We’ll leave the most important issues, about the value and relevance of scientific research, to last.

Ms Rice-Jones believes that the site of Grey Friars friary church in Leicester was known long before the ULAS excavation in 2012, and that this was confirmed by Philippa Langley and John Ashdown-Hill. ULAS, the argument goes, are wrong to claim to have identified it.

Ashdown-Hill himself has gone further. On his blog, he writes that he “researched for the BBC the ‘body in the river’ myth and disproved it” (ie, Richard’s body had not been cast into the river Soar by rioting Leicester citizens); he then “established that Richard III definitely had been buried at the Franciscan Priory in Leicester, and accurately predicted the probable location of the lost priory church.” “… without [his] historical and genealogical research [of which more below] Richard III’s body would never have been rediscovered in 2012.”

Most of this is true. Ashdown-Hill argued that Richard’s body lay in the ground, and that the grave was in the council car park south of Leicester cathedral, before the excavation began. The car park bit, illustrated with a photo in his book first published in 2010 (The Last Days of Richard III, History Press) was pretty remarkable; the fact that it was coincidence – no one has found any pre-excavation record of exactly where the grave was – should not detract from the achievement of an extraordinary and inspired guess.

It should be said, though, that others were saying similar things around the same time, and had been doing so for some years. Philippa Langley says she identified the car park as the site of the grave in 2004. In his BBC piece in 2006, Ashdown-Hill says more broadly that “Richard III’s body probably still lies where it was first buried, somewhere beneath Grey Friars Street or the adjacent buildings”.

David Baldwin had said exactly that 20 years before, in 1986, in a short article that reviewed all the evidence, with full documentation. He concluded that “It is possible (though perhaps now unlikely) that at some time in the twenty-first century an excavator may yet reveal the slight remains of this famous monarch; but in the meantime we can do no more than agree with Charles Billson [writing in Mediaeval Leicester, published in 1920 and on the shelf in the Leicester record office] that the grave most probably lies beneath the northern (St Martin’s) end of Grey Friars Street, or the buildings that face it on either side.” Baldwin’s article is listed in Ashdown-Hill’s book.

LeicesterSo if Ashdown-Hill cannot claim to have been the first to have identified the grave site, or to have added anything to prior knowledge, does that mean that ULAS is also wrong to make that claim? No. Before excavation began, ULAS did the proper thing and conducted a background historical study to find out what was already known about the site. They knew everything that everyone else did (and could back it up with the evidence), namely that the grave was probably “somewhere beneath Grey Friars Street or the adjacent buildings”. They did not know exactly where the grave was, or if it had survived (many events could have removed it, not least the digging of house cellars). Those are facts that their excavation established, through a combination of luck, skill and resources.

Time Team – as a weary producer once confirmed to me – did indeed turn down the chance to find Richard III. However, given the small scale and budget of their digs, it is unlikely that they would have found the grave even if they had gone ahead. Time Team digs really were done over three days, so if they had found human remains – a leg bone, say – there would not have been time to obtain a licence to fully excavate them. They certainly would not have had the resources to prove the identity of a skeleton (though, had they got that far, the logical thing would have been to go to Leicester University for help).

So what about the claim that ULAS dug only because “the Looking for Richard team hired them, at some great cost”? And then, when “the body of King Richard was discovered on the first day, it was completely ignored by ULAS and only returned to at the insistence of John Ashdown-Hill”? Surely in effect that means the discovery was made by Langley and Ashdown-Hill?

It might do, were it not that both claims are false.

First, it is true that had Langley not determined to find Richard III’s grave, the dig would never have taken place. She (or the Richard III Society) paid for the desk-top study that ULAS prepared – the background historical research noted above – during which archaeologists realised the grave might still be there, and she pushed for excavation. That is her great achievement. The first part of point 8 in the letter above (Langley “instigated… the archaeological search”) is correct. The second part (“and raised the funding”) is only half true.

ULAS were not “hired [by Langley’s team] at great cost”. The written scheme of investigation – a standard and necessary excavation programme put together by ULAS on the back of the desk-top study – was prepared at their expense, not Langley’s. As she has made clear, lack of money nearly sank the project. She and Annette Carson triumphantly managed a last-minute campaign that helped to save it, but their contribution was matched by a similar sum from the university, and others made further important contributions. At a little under £50,000, the dig itself (what archaeologists would call an evaluation, not a real excavation), was small and cheap.

The dig cost £48,518, of which the Richard III Society put up £18,083 (37%). The University of Leicester (which owns ULAS) paid £19,935. Including essential, planned post-excavation study up to the end of 2012 (and work continues even now), the university had funded 80% of the £142,600 bill. The Richard III Society was a key partner in the dig. It was not alone. Further details here.

LeicesterFinally, the idea that Richard’s remains were ignored by ULAS but for the insistence of John Ashdown-Hill (or of Philippa Langley, according to her co-authored book The King’s Grave: The Search for Richard III), is fantasy. Here I’m afraid you are just going to have to take my word for it.

I am an archaeologist. I have spoken to several of the archaeologists who worked on the Leicester dig – not least those who directed the project, and found and excavated the grave. No archaeologist who finds human remains is going to ignore them: such action would go against all our professional training and values, and it did not happen like that in Leicester.

On the other hand, for reasons that come from the same training and values, we do not yank something out of the ground as soon as we see it. Everything is planned and done for a reason. Exhuming human remains requires a licence from the Ministry of Justice. That had to be obtained before the remains found in Leicester could be dug up. Secondly, archaeologists do not excavate graves for the sake of it (not least because the outcome can be very costly). One of the project’s goals was to find the remains of Richard III; there were no plans to recover anyone else’s. The skeleton that turned out to be Richard’s was excavated after archaeologists had established where the grave lay (by identifying details of the friary layout), information that suggested it could have been the one they were looking for. That was the time to dig the grave. And that was when it was done.

It’s important to get these issues out of the way. Scientific research very rarely succeeds because of one person’s ideas or acts. That’s just not how science works. Rather, it’s a collaborative enterprise in which everyone builds on each other’s efforts, and in which teams rather than lone individuals move things forward. Theories are cheap. Testing them is not, but that’s where we get results. That’s how Richard was found, a team effort that built on generations of research and knowledge.

The same argument applies to Ashdown-Hill’s claims to be “the person who first documented Richard III’s family link to Joy Ibsen; who, as a result, first published the king’s mtDNA sequence”. To date, these are largely unsubstantiated claims: he has yet to present his genealogical evidence in a form that takes research forward, in fully documented peer-reviewed publications. In the second edition of his book (retitled The Last Days of Richard III & the Fate of his DNA, History Press 2013) he added two chapters about genealogy and DNA. Primary documentation for the family tree is not included.

We also await such promised publications from the Leicester team, but the research has been done (importantly, in the process identifying more collateral descendants than the Ibsen family), and would have been done in the way it was regardless of prior studies. Furthermore, excavation would have proceeded without Ashdown-Hill’s claims about his own research, in the sense that ULAS’s decision to dig was based more on the promise of finding the friary than the grave. And once the grave was found, genealogy and DNA played only a part in identifying its occupant: archaeological evidence from the ground was very significant in this, arguably at least as much as that from DNA.

If one person in modern times could claim to have recognised that Richard’s grave still survived, and identified where it might lie, it’s David Baldwin. When the grave was found, asked BBC Radio Leicester’s Bridget Blair, were you not tempted to say, I told you so? “Not really,” Baldwin replied, “because I’m a rather quiet sort of person. But I was quietly satisfied. I was very pleased.” There speaks a team player.

Apart from wanting to correct misapprehensions, I’ve set this out because there seems to lie behind the debate a sense that if someone can claim to have “found” Richard, they can determine the fate of his remains. That cannot be right. We should all be able to agree on this. As some critics of the Leicester team, and of plans to bury Richard’s remains in Leicester, have said, “finders are not keepers”. In English and Welsh law, there is no property in the human corpse. On this basis, nobody owns the king’s remains – or the right to say what should happen to them. Who “found” them is a relatively trivial matter.

CONTRACT

LeicesterAnd here we come to my next major subject: Philippa Langley’s alleged “contract” with University of Leicester Archaeological Services (points 9–12 in my above summary of the letter). What is this contract, and has it been broken?

As I understand it, Langley contributed to the shape of two documents prepared by ULAS, a desk-top study and a written scheme of investigation. As commissioner of the first, and observer of the second, it is likely her contributions were relatively small. Neither text has been published, and ULAS has not commented publicly on recent claims. We have only Langley’s description of the nature of any agreement these might contain, or have attached. Here is what she says.

“Eighteen months before the dig took place, I asked the Ministry of Justice for advance guidance because I wanted to ensure Richard’s remains would be treated with dignity after he was exhumed and identified. They told me that the exhumation licence could not control this and I must put agreements clearly in writing, locally – which is why I put them in the contract with the University of Leicester Archaeological Services.” Leicester Mercury Jan 21 2014

“My agreement in place locally says that following identification, as the named custodian of the remains, I would be able to take Richard to a place of sanctity and rest to await reburial. That’s what it says, it’s pretty simple, and it won’t affect anything.” … “All we’re saying is, can we honour the agreement?” BBC news Feb 5 2014

Partly perhaps as a result of these claims, it may be that ULAS has not published the texts because of the imminent judicial review. We can hope that once the review is over, the documents will be published, as they need to be. All we can do is guess.

My guess is that, following standard practice, neither the desk-study nor the written scheme of investigation (WSI) constitutes a contract. That is not what such reports are: they are proposals and project designs put forward by a contractor on behalf of a client. In the case of the WSI, prepared and paid for by ULAS, whatever might have been agreed between them and the Looking For Richard Project would not be contractual unless it was spelled out as such. The two bodies were working together on a joint project.

It is possible, however, that Langley had a separate, stand-alone contract with ULAS. This, according to Langley, would have said that she “sanctioned” work to identify any remains excavated, and in the event that some turned out to be Richard III’s, that ULAS would give them to her pending reburial “in a prayerful environment”.

Ashdown-Hill has quoted the same phrase, a “prayerful environment”, and offered further details. “The key point is that Philippa Langley employed [ULAS] on a contract of service… to the effect that, if Richard III’s remains were found, then once they had been positively identified they would be handed over and would then be taken to a Catholic religious house, where they would lie undisturbed and in peace, awaiting their formal reburial in a prayerful and private environment. The site originally proposed for this was Mount St Bernard’s Abbey, which is not far from Leicester.” Leicester Mercury Jan 21 2014

This is difficult to square with what we know. By the time the dig started, the project was a joint one, in which Langley was a partner (see funding breakdown above). She cannot, on that basis, have “employed [ULAS] on a contract of service”, any more than ULAS can have employed her: the funding was for the dig, not for partnership fees. Furthermore, in the same press article, the University of Leicester is said to have claimed that there was no signed contract. “The only legally-binding agreement concerning the remains of Richard III”, it says, “is that issued by the Ministry of Justice to the University of Leicester. This requires the university to act as custodian of the remains until the point of reinterment at Leicester Cathedral.”

LeicesterSo what’s going on? It sounds to me like an unfortunate misunderstanding, compounded, perhaps, by the speed with which events occurred immediately before the dig began.

I cannot imagine that any responsible archaeologist would sign a contract in advance of an excavation – where no one could predict what was to be found – that stipulated that human remains would be handed over to an individual. Archaeologists have no authority to do such a thing. At the dig, once remains were found and the decision had been taken to exhume them, ULAS applied for a licence. At that point, they had the obligation to say what might happen to any remains. The intention was to exhume up to six sets. In due course, proposed ULAS, they would be deposited at the nearest archaeological museum, the Jewry Wall Museum in Leicester. But if one of these sets turned out to be Richard III’s, these would be reburied in Leicester Cathedral. The issued licence leaves open the possibility that Richard’s remains might be curated by the museum: any remains shall “be deposited at Jewry Wall Museum or else be reinterred at St Martins Cathedral or in a burial ground in which interments may legally take place”.

Extract from ULAS application form for exhumation licence

Extract from ULAS application form for exhumation licence

All this follows standard, agreed procedure (see my earlier blog here). So where does that leave Langley’s “contract”? The quoted phrases are presumably written down somewhere. They would, one assumes, have been discussed. With hindsight, the mistake the archaeologists seem to have made was to allow anyone to think of such statements as contractual, rather than aspirational. But a mistake does not make a contract. In this context, it is difficult to imagine any valid document exists that the university could have “refused to honour”.

We come back to my earlier point about ownership. No one can claim special powers over ancient human remains beyond the law and publicly agreed principles. No individual had authority to “sanction” (or otherwise control) research on Richard’s remains, or to be nominated as “custodian”. And as the university argued in a bizarre twist late last year, Leicester City Council did not have control of Richard’s remains simply because they were found in its car park.

However, it is the contention of the Plantagenet Alliance that we need new principles to guide the handling and fate of “royalty”, which is what the judicial review is to consider. This was not thought necessary by either ULAS or the Looking For Richard Project. In the words of the Honourable Mr Justice Haddon-Cave, “it is plainly arguable that there was a duty at common law to consult widely as to how and where Richard III’s remains should appropriately be re-interred.” As far as I am aware, no such consultation like this has ever been conducted in the UK. The outcome of any consultation, should it be recommended, is impossible to predict. We should know if it is to happen by the end of this week.

SCIENCE

Richard III, LeicesterSo finally what, to me, is the key subject: the process of scientific research. In their letter, the Looking For Richard Project (LRP) question proposals to sequence the king’s DNA. They make three assertions:

1. The research may not be “necessary”, is not “essential”, and “will add very little to our useful knowledge of England’s last Plantagenet king” (points 6–7).

2. The research may not be “ethical” (point 5).

3. In promulgating the project, Leicester University has broken the principle, at the very least, of the judicial review (points 2–4).

The last point seems to be a red herring. It is a curious one for the LRP to make. While the review will question, among other things, the right of the university to determine where Richard III’s remains should be reburied, many of us might think that digging them up in the first place is of equal moment – perhaps more. Should the decision to dig have been subjected to a national consultation? Personally I think not, but using the review as part of your armoury arguably draws attention to your own actions, with potentially unhelpful consequences. In any event, the judgement in August 2013 makes no reference to study of the remains, only to their ultimate disposal – to “how, and where, the remains of Richard III should be reburied”. On that basis, in recommending further research, it seems the university cannot be held to be ignoring legal process.

The ethics of excavating and studying human remains is a huge and much debated subject. There’s a good review by Charlotte Roberts in the CBA’s handbook, Human Remains in Archaeology (2009, chapter 2). She argues that, in Britain, “we can all claim a common ancestry with our forebears, and we can all have opinions about how human remains from archaeological sites should be treated”. Studying human remains is “a privilege, not a right”. Such study has undoubted value for our knowledge of the past, and people are generally supportive, and fascinated by the results. But we need more debate in the UK about ancient human remains, and how archaeologists should treat them.

Few archaeologists today would disagree with any of that, and substantial debate has occurred since the book was published. A very useful recent collection of articles (including one which I co-authored) is Curating Human Remains: Caring for the Dead in the United Kingdom, edited by Myra Giesen (Boydell 2013).

I suspect that many would be surprised to hear how many human bones and other remains are excavated by archaeologists. In Giesen’s book, Hedley Swain writes that UK museums currently hold over 60,000 human remains, most of which have been excavated by archaeologists in the past 20 or 30 years, and most of which are medieval or more recent. One of the issues in the debate about Richard III has to be to what extent the king’s remains should be treated differently from all these others?

Who is to say which individual from the past was more important, or is now more significant? These are not the same things: bones currently displayed in the Natural History Museum’s exhibition “Britain: One Million Years of the Human Story”, are of incalculable value to science and the public, but that has nothing at all to do with the status of the individuals in life, which is unknowable. Richard III is important to many today because he was a king. But there are likely to be many others for whom that fact is less powerful, who might, for example, value more the remains of a prehistoric person buried at Stonehenge, or a skeleton found by builders at the bottom of their garden.

I said above that I was not aware of a consultation about the reburial of royal remains. There have, however, been a few other consultations, notably one that concerned the potential reburial of prehistoric bones held by Avebury museum in Wiltshire. This was a lengthy, complex and costly exercise managed by English Heritage, brought by claims from a small group who had no particular relationship to the ancient people (see British Archaeology May/Jun 2010/112). The issue was not about where reburial should occur, but whether or not it should happen at all (the museum, understandably, thought not).

As part of this project, Research into Issues Surrounding Human Bones in Museums (commissioned by English Heritage, 2009) found that “The vast majority of the England adult population support museums that wish to display and keep human bones for research purposes”. However, fewer (53%, rising to 69% for those with no religious affiliation) agreed that research was acceptable regardless of whether or not the bones were from named individuals.

Charlotte Woodhead, an assistant professor of law at Warwick University and a non-practising barrister, has written interestingly about this study, also in the Giesen book. She makes the point about the project’s cost, but that its value lay partly in its ability to inform similar reburial requests made to other museums. In other words, it was a case study.

She points out that the British legal regime concerning the museum treatment of those who died less than 100 years ago “is firmly based on the notion of consent”. By contrast, for older remains, “the concept of consultation underpins the ethical guidance”. Applied to Richard III’s remains, this would support the Plantagenet Alliance’s approach (consultation) against that of the Looking For Richard Project (consent). Leicester University has issued a statement on the ethics of sequencing Richard III’s genome. Note that the Wellcome Trust and the Leverhulme Trust, who are major funders of the research, have ratified the process. They are both organisations that take ethical issues extremely seriously.

Although destined for reburial, Richard III’s skeleton is currently in effect in a sort of museum – it deserves and will be receiving the same respect and care as it would obtain in such an institution. I noted earlier that in English law there is no property in the human corpse. This is a position taken by museums, who see themselves as curators or carers rather than owners. As general principles, they welcome research on their collections (one of the key reasons why they maintain them in the first place – and why archaeologists excavate things), and do not judge it.

Guidance for the Care of Human Remains in Museums

Museums recognise, however, that human remains bring special responsibilities. The UK government published an important report called Guidance for the Care of Human Remains in Museums (DCMS 2005). Among its list of ethical principles (which “will frequently come into conflict with each other”) are Respect for diversity of belief, Respect for the value of science, and Beneficence. Examples of the latter include “advancing knowledge that is of benefit to humanity (for example, by using human remains for scientific research)”, and “respecting the wishes of an individual (for example, by returning the remains of their relative for burial)”.

Given the knowledge that Richard III’s remains are to be reburied, Leicester University has a responsibility to science and to public beneficence to research them in the short time that is available. The identification of a skeleton as Richard III’s has led to enormous public interest in those remains. That does not mean, however, that the skeleton, were it not the king’s, would then have no interest. Until a late stage in the excavation, the common assumption was that the grave belonged to a medieval friar. That was interesting: at that stage in the dig, the friary was the archaeologists’ main focus. Like everything that archaeologists find, the remains have an intrinsic value that is not to be judged by immediate concerns. That alone is justification for researching them. But given the additional and substantial, international interest, research might arguably be seen as an obligation.

Simply asserting that research on the remains may or may not be ethical or necessary (points 5–6) adds little useful to the debate. We accept, in 21st century Britain, that proper research into historic human remains is a good thing. The Looking For Richard Project thought it would be of public value and interest to dig up the king’s remains, and conduct research necessary to identify them, with no public consultation. This involved more than a quest for ancient mtDNA: detailed anatomical and pathological studies, including a number of digital scans, were also conducted, and will prove of value, not just in identifying the king, but in understanding him – how he looked, how he lived and how he died. Provisional results from this research have been described, but more will come as peer-reviewed studies are published.

What makes Richard III’s genome – the DNA that defined him, not just the little bit that identified him – of particular interest is the fact that we know who he was. Because of this, thanks to genealogical records, we can trace living people with precisely identifiable relationships to him – of whom there are potentially millions, more or less close – whose DNA can also be sequenced. That means, for the first time, it will be possible to see how genes have evolved over several generations, and, to a certain extent, to be able to consider those changes in the contexts of personal lives and wider society. That is an extraordinary thing, with unknown but possibly significant value to our understanding of modern health and diseases, and wider issues of evolution.

Patricia Rice-Jones questions whether sequencing the genome will increase our knowledge of the man himself. “These genome tests will have nothing to add to our understanding of King Richard,” she says. “His hair and eye colour are known.” But how do we know if the portraits (often dismissed by Ricardians for their distortions) show his real colours? There is potential here for learning something about both Richard and portraiture. It sounds very odd to say, as she does, that diseases have no significance if they do not kill.

It is easy to mock claims in the press release announcing the genome project, but such cynicism is misplaced. Research has not yet begun. Of course little specific can be said that relates to the value of being able to study Richard’s genome, because we haven’t yet seen it: that is precisely why scientists want to look at it. That is how research works, and why we are not all still knapping stone tools and wearing skins. Inquiry experiments with the unknown. It does not judge things that have not yet happened.

So where, to end at last, does this get us? Handling Richard III’s bones does raise serious questions – as should handling any remains. However, it is debatable whether or not how that is being done is questionable. And, it seems to me, none of the accusations in the Looking For Richard Project’s letter carries any weight.

Meanwhile, we look forward to the judicial review with great interest. It starts on Thursday.

Press photo of Matthew Howarth of Gordons, representing the Plantagenet Alliance at the judicial review

Press photo of Matthew Howarth of Gordons, representing the Plantagenet Alliance at the judicial review


Is British Museum Vikings show a disaster?

jaw

First Stonehenge, now our old friend the BM. What’s gone wrong?

“Disaster” is what art critic Brian Sewell calls the newly opened “Vikings: Life and Legend” exhibition – and also the room in which it’s held, part of the new and hugely significant extension to the British Museum. Writing in the Evening Standard, he describes the Rogers Stirk Harbour + Partners’ gallery as a “charmless achievement”, “a vast and featureless container, bleak, grey and gloomy… with better lighting it could easily be adapted for the production of Shredded Wheat”.

“Worse still,” he adds, “other than for archaeologists, the exhibition too is a disaster, deadly dull.”

I like the “other than for archaeologists”. Did we have our early excitement with the past ground down by years of research, or were we just bored and boring from the start?

This is not just a Brian Sewell whine, however (though his review begins with a long passage of reminisces about swotting, and all the things that “every schoolboy knows” – it’s definitely him). Other thoughtful reviews also find the show wanting.

In the Telegraph, Mark Hudson finds his worst preconceptions about academics confirmed. “I will learn that these rapacious raiders were in fact vegetarians,” he muses as he climbs the steps, “that they maintained some of the leading universities of the day and, worst of all, that they did not wear horned helmets”. Sure enough, the helmets have no horns (more about this later). He finds his hoped-for “semi-imaginative approach doesn’t sit with the desire for academic and political correctness expressed in the exhibition’s texts. Modern examples of the materials the Vikings traded in, such as elk furs and walrus tusks, have, we are informed, been ‘ethically sourced from within the EU’”.

(An aside. In the Natural History Museum’s “Britain: One Million Years of the Human Story” – spectacular archaeological shows in two of our greatest national museums at the same time! – there are a pair of fabulously realistic models of early humans, one a neanderthal, the other a modern. Though the museum has now moved on from not exhibiting even ancient human fossils, so that by rounding up the UK’s, the show reveals many of them publicly for the first time, it retains the policy for modern remains. So the hair in the model humans is not human – but Highland cattle. As Simon Parfitt pointed out to me, this probably means an animal had to die for it [I spoke to Alfons Kennis, who made the models with his brother, for a feature in the current edition of British Archaeology].)

gallery

Back in the BM, Hudson didn’t like the space either. The Sainsbury Exhibitions Gallery, he says, houses “a collection of severely functional, starkly rectilineal spaces got out in handsome, but sombre grey… The starkly contemporary design robs the proceedings of any sense of atmosphere, romance or mystery.” Hearing the background audio is “like listening to an episode of The Killing in an outbuilding of Stansted Airport”.

Jonathan Jones bares his teeth in the Guardian. “When you enter the show”, he writes, “there’s no excitement at all. The new gallery is not as charismatic as the museum’s old Reading Room, where great shows like The First Emperor (and his terracotta warriors) and Life and Death in Pompeii and Herculaneum were staged. The circular shape of the Reading Room made for magical labyrinthine displays. This place feels, on first sight, more like a big grey box where display cases are laid out in dismal straight lines.”

“Where [are] the swords?” he asks. “Why not weave [Viking] tales and the histories written by their enemies into the mix of archaeological stuff to give it warmth and context? The refusal to do so cannot be an oversight. It looks like an archaeological dogma: only material objects painstakingly excavated are to be relied upon as evidence. The rest is romantic twaddle.”

speech

I saw the exhibition last night at the formal opening event (whence my fuzzy phone photos). The show is great, with many lovely things. The ship is spectacular, as everyone agrees (not least the current British Archaeology). I wouldn’t hesitate to recommend “Vikings: Life and Legend” to anyone. Go.

Yet I understand what the critics are saying. If I’d been able to have a hand in it, I’d have done it differently.

The core of the problem is narrative. As Jones says, there is no sense of arrival when you start. The cases display set pieces without really holding a story together, and there is no build up to the ship, so the finale feels like a thing in itself. It’s stunning (and a few small cases at the far, stern end do at last hang together). But it’s unrelated to – or amputated from – the world of small treasures and insights that came before.

Easy to miss: the Weymouth pit case

Easy to miss: the Weymouth pit case

Starting with the ship wouldn’t work – after it, all those cases to follow would then be a let down. But there is a solution. It’s almost hidden away on the floor in a dark corner near the stern. It’s archaeological – a new excavation no less. It’s deeply shocking. Kids will love it. It panders to our preconceptions of blood-thirsty invaders – and then turns them upside down. It’s the narrative pull the whole show needs. A mass grave.

In 2009 Oxford Archaeology chanced upon a huge pit in Dorset, as they excavated in advance of works associated with 2012 Olympics water events in Weymouth. The brutally decapitated bodies of some 50 young men had been slung into the pit. Their heads had been piled up any old how to one side. Stripped naked, many of the men had struggled pitifully as a heavy, razor-edged sword sliced into them, slashing their shoulders, cutting off fingers, hacking into jaws and, ultimately, removing their heads with several badly placed blows. Nothing like it has ever been found in Britain.

The archaeologists first thought they had evidence for a Roman massacre of native warriors – the only artefacts were a few Roman pot sherds. But radiocarbon dating revealed the bones were early medieval, so the men became Anglo-Saxon victims of a Vikings raid. And then scientific evidence showed they were Vikings: they were born in a zone ranging across Scandinavia, the Baltic and Russia.

There's another 50 or so where these came from

There’s another 50 or so where these came from

The new Sainsbury Gallery is, to use words of the Telegraph’s Mark Hudson, starkly modern. That’s its beauty. It’s unencumbered by the original buildings’ grace and ornamentation, the history, and the sometimes dark corners and clunky interfering pillars. The Reading Room brought its own drama to temporary exhibitions, sucking you down a dark, curving tunnel and suddenly releasing you into a soaring, exquisite space. You wander off the corner of the Great Court into Vikings almost without realising it. The show has to deliver its own theatre.

Imagine leaving the court and coming face to face with the skeletal remains of a mass grave. Vikings! Invasions! Murder! Pillage! It’s all there, in gory detail, everything we grew up with (archaeologists, too). Yet the real shock comes when we discover the killers were not Vikings. They were Anglo-Saxons. This was an atrocity perpetrated on Vikings, by our forebears.

There is no historical evidence for the event, just the archaeology. So what else has archaeology told us? And there is the story.

entrance

The great excitement of the Sainsbury Exhibitions Gallery is its challenge. Even Vikings, on their own, struggle to make it work. It’s all in the exhibition. New imagination and vision need to be let loose. Museum and academic inhibitions broken. “Shakespeare: Staging the World” (in the Great Court  Reading Room in 2012) gave a hint of what can be done, where theatrical designers set the stage. But the Sainsbury demands much, much more. It could be the best thing that’s happened to the museum in generations.

No horns!

No horns!

The boat from the Ardnamurchan Viking burial, excavated in western Scotland in 2011 (see British Archaeology Jul/Aug 2012/125)

The boat from the Ardnamurchan Viking burial, excavated in western Scotland in 2011 (see British Archaeology Jul/Aug 2012/125)


Eleven planes

tin 2

My Dad was a rear-gunner in world war two. He flew mostly in Liberators (during the war) and Lancasters (immediately after), but according to his log book he also went up in nine other types.

I’ve been reading about a recent excavation project on Salisbury Plain, when soldiers and archaeologists examined a Battle of Britain Spitfire crash site (the pilot had safely bailed out). It reminded me of one of the first British Archaeology’s I edited, back in 2004.

It featured enthusiasts digging up plane crash-sites (not something that impressed me very much at the time). Simon Esterson and I chose an old Spitfire photo for the cover, which he made into a really great design. To show how long ago it was in publishing terms, we had to scan a print provided by the Imperial War Museum, and the Royal Mail train carrying the package got stuck in snow between Swindon and London, causing a minor panic.

Mar 04

It turned out my Dad wasn’t very impressed with the digging either. I got a letter from him addressed to The Editor, which I put into the next edition of  British Archaeology:

“The wording on the cover of your March issue ‘They died for us, Now we dig them up’, as well as much of the writing upon ‘Who owns our dead’, has disturbed me.

“I was an airgunner during the 2nd World War. If I had been buried beneath the waves, or buried beneath the sod, I would have wanted my body to have rested in peace, my soul having flown.

“I see no good reason for disturbing the serenity and calm of those buried, say, during the last 100 years, when records and communications can tell us all we need to know.

“Roger Pitts, Chichester”

Roger died late last year, aged 90. He didn’t talk much about the war, in common with many of his contemporaries. But now I have a small tin with a selection of prints and papers, and his log book.

log 1

He summarised his flying across the pages above; he was in No 40 Squadron RAF, based in Egypt. The chart includes his training as a rear-gunner, bombing missions over Italy and ferrying work in the months after war ended, while he waited to return home to the farm in Sussex he’d left in 1942. He’d been 18 or 19 then, and was expected to grow food and not enlist – farming was a “reserved occupation”. However, a close friend was killed flying a Spitfire, and a cousin was a prisoner of war in Stalag Luft III having been shot down piloting a Lancaster. He felt unable to stay put. He volunteered, and the Air Force eagerly took him on.

log 2

At the back of the log is a list of the planes he went up in, in flying order. It’s an extraordinary catalogue of experiences, of a time when aircraft were not hotels with changing scenery, but engineered frames that defied gravity with every rivet and curved metal plate – so long, my Dad warned me before my first flying lessons, as the pilot kept up the air speed, held the plane at the right angle and the engines at the right throttle, pumping and hammering from nose to tail through every component and passenger. It is an insight into what has come to feel almost commonplace, an air war that for most of us today is yet beyond imagination. I made Airfix models of a Wellington and a Lancaster when I was a kid, and I remember a friend making a Flying Fortress. I had no idea that my Dad had flown in the real things.

Photo Deano

Anson. Photo Deano

Avro Anson, used to train pilots for flying multi-engined bombers, and to train the other members of a bomber’s aircrew – navigators, wireless operators, bomb aimers and air gunners. It was the RAF’s first monoplane with a retractable undercarriage.

Photo Ted Harrod

Harvard. Photo Ted Harrod

North American Aviation Harvard, a single-engined advanced trainer aircraft known in the US as the T-6 Texan.

Wellington. Photo RAF/Wikipedia

Wellington. Photo RAF/Wikipedia

Vickers Wellington, a long range medium bomber built with a geodesic construction method devised by Barnes Wallis: as a result, wrote Roger, “very safe… she would not break up easily on crashing and would float for hours if brought down on water, unlike the Liberators [in which he flew operations across the Mediterranean] which would break up and sink within seconds.”

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Liberator. Photo Roger Pitts

Consolidated B-24 Liberator, an American heavy bomber – a more advanced version of the better known Flying Fortress, but said to be harder to fly. Roger used to say that he saw more fatalities during take-offs and landings with inexperienced pilots than on active service. One of the craft in his log is noted a week before his flight as having “Bounced on landing, stalled and spun into ground, Foggia Main”. After his first operational flight from Foggia (a bombing raid over Italy), Roger noted that the squadron’s only loss “was a poor landing by one Liberator which broke away the rear gunner’s turret with the gunner inside”.

Dakota. Photo RAF

Dakota. Photo RAF

Dakota,  military version of the DC-3 airliner, used to carry troops and freight, for air-dropping supplies and paratroops, for towing gliders and for casualty evacuation.

Lancaster. Photo Roger Pitts

Lancaster. Photo Roger Pitts

Lancasters (thank you Steve Kaye for putting me right on these). Photo Roger Pitts

Lancasters (thank you Steve Kaye for putting me right on these). Photo Roger Pitts

Lancaster. Photo Roger Pitts

Lancaster. Photo Roger Pitts

Lancaster. Photo Roger Pitts

Lancaster. Photo Roger Pitts

Avro Lancaster, the RAF’s main heavy bomber, designed by Roy Chadwick and powered by four Rolls-Royce Merlins.

Defiant. Photo Imperial War Museum/Wikipedia

Defiant. Photo Imperial War Museum/Wikipedia

Boulton Paul Defiant, an interceptor aircraft with a rear-facing gun turret set behind the pilot, found to be most effective at night when it was less vulnerable to fighter attack. It was also used in gunnery training, towing targets and air-sea rescue.

Fortress. Photo Rob Stitt

Fortress. Photo Rob Stitt

Boeing B-17 Flying Fortress, heavy bomber flown mostly by the USAAF, but with an undistinguished service in the RAF early in the war.

Argus. Photo Roger Pitts

Argus. Photo Roger Pitts

Fairchild Argus (a British version of the US Model 24), flown mostly with the Air Transport Auxiliary, ferrying aircrew. The photo at Gaza shows Roger Pitts on the right in characteristic wartime pose. One of his major responsibilities in Egypt was as Welfare Officer for his squadron, which included listening to the men’s worries and running all the sports activities. (He later labelled this photo a Lysander, a similar plane but with a three-bladed propeller; the Lysander is not in his logbook.)

Proctor. Photo unknown

Proctor. Photo unknown

Percival Proctor, a wireless-operator trainer and communications aircraft.

Baltimore. Photo U.S Air Force/Wikipedia

Baltimore. Photo U.S Air Force/Wikipedia

Martin Baltimore, a light attack bomber also used for reconnaissance, originally built in the US but made for the RAF in Britain.

Roger Pitts in a Lancaster gun turret

Roger Pitts in a Lancaster gun turret