Report of the National Cremation Investigation by Dame Elish Angiolini DBE QC

1 Background

This report was commissioned by the Scottish Government following a number of investigations into the retrieval or otherwise of ashes from the remains of babies cremated in Scotland. The investigations were launched because of public concern arising from an initial enquiry by an author on behalf of the bereavement charity, SANDS Lothians, in October 2012. This led to the Edinburgh Evening News publishing an article in December 2012 suggesting that the ashes of miscarried, stillborn and neonatal babies were 'cruelly dumped in a mass unmarked grave at a city crematorium'. The parents of many of these babies had been advised there were no remains following the cremations.

Subsequent media coverage prompted the City of Edinburgh Council to establish an initial fact finding investigation at Mortonhall Crematorium, led by a senior officer of the Council, in early December 2012. The investigation reported in January 2013.

As a result of that report, and growing concern about the number of families who had raised enquiries relating to their own children's cremated remains, the City of Edinburgh Council commissioned me to lead a fuller independent investigation into the historical practices at Mortonhall Crematorium. That investigation began in January 2013.

However, the scandal had quickly grown beyond the reach of the City of Edinburgh Council. In April 2013, the BBC investigative journalist, Mark Daly, broadcast a documentary examining the Mortonhall situation and suggesting that similar issues might exist in crematoria across Scotland. Internal audits of the records held about such cremations were instructed by Glasgow City Council and Aberdeen City Council in early 2013.

Many parents of babies in other parts of Scotland who had not received ashes from their local crematorium sought information about their own circumstances directly from those crematoria, often assisted by their local MSP and local newspapers. The bereavement charity Sands provided support and information to many of the parents affected by these issues. Some of these parents formed pressure groups requesting a public inquiry into the issues. 'Mortonhall Ashes Action Committee', 'Glasgow Answers for Ashes' and 'Baby Ashes Scotland' all drew attention to the wider circumstances in which ashes had not been returned to parents across Scotland. Similarly, a mother in Aberdeen, Leeanne Evans, sought answers from Aberdeen City Council about the circumstances of the cremation of her baby daughter, Alison. The persistence and tenacity of Leeanne Evans and of the members of these groups of other parents was admirable and I am grateful to her and to so many other parents for the very valuable information and evidence they acquired through their own individual efforts and determination.

In response to growing evidence that many parents across Scotland had been left in a state of distressing uncertainty, the Scottish Government established The Infant Cremation Commission ( ICC), chaired by Lord Bonomy, in April 2013. This Commission was asked to review current policies, guidance, practice and legislation in Scotland in relation to the handling of all recoverable remains (ashes) following the cremation of babies and infants. It did not consider individual cases.

The Mortonhall Investigation and the ICC worked closely together, with the Mortonhall Investigation publishing its report in April 2014, and the ICC reporting in June 2014.

A further series of newspaper articles was published in both local Scottish newspapers and the national press between June 2014 and October 2014. It also became increasingly apparent that this issue was not confined to Scottish crematoria, and in November 2014 Shropshire Council commissioned an Inquiry into Emstrey Crematorium where families had also complained that their baby's ashes had not been returned to them following cremation. This Inquiry published its report in May 2015. The Minister for Justice for England and Wales has recently also urged Hull City Council to instruct a similar investigation on a Crematorium in Hull.

As a direct result of recommendations from the Mortonhall Investigation Report and the Infant Cremation Commission Report, the Burial and Cremation (Scotland) Bill was introduced in the Scottish Parliament on 8 October 2015.

Meanwhile, increasing numbers of parents in Glasgow, Aberdeen, Fife and Falkirk had registered concern and enquiries about whether their baby's cremation had produced ashes that had been buried or scattered without their knowledge. As a result of the widespread nature and the volume of these enquiries, the Scottish Government asked me to conduct an independent investigation into crematorium practices across Scotland.

1.1 Chronology of Events

i SANDS Lothians - 2012

In 2012 Lesley Winton, a freelance journalist, was engaged by SANDS Lothians to write a book. SANDS Lothians is a local bereavement charity, which helps families affected by Stillbirth and Neonatal Death.

As part of her research, Lesley Winton became aware that parents whose children had been cremated at the private crematoria, Seafield and Warriston, had received their babies' ashes. By contrast, parents whose children had been cremated at the local authority crematorium, Mortonhall, had not.

Ms Winton became deeply concerned that not only might this discrepancy have significant implications for bereaved parents of the future; it might also have a devastating impact on parents for whom it was already too late. Ms Winton therefore shared her findings with Dorothy Maitland, the Operations Manager of SANDS Lothians, in the hope that the information could be sensitively handled to help parents in this deeply distressing position.

Dorothy Maitland was herself the bereaved mother of a baby girl cremated at Mortonhall Crematorium in 1986, and together with Helen Henderson, another member of SANDS Lothians who had suffered the loss of her baby son in 2004, made further enquiries about the records of Mortonhall Crematorium. Shortly after this, Ms Maitland contacted the Evening News newspaper and advised journalist Gina Davidson of her findings, including the information that Mortonhall had advised her that it would not be possible for her to retrieve the ashes of her daughter.

The Evening News published the story on 5 December 2012 and the City of Edinburgh Council, which is responsible for Mortonhall Crematorium, issued an immediate public apology to any bereaved parents affected by this development.

The subsequent media coverage led to over 250 families registering an enquiry with the Mortonhall Investigation, seeking to establish whether the ashes of their babies had been recovered following cremation. Similar, although less numerous, enquiries were made of cremation authorities including Glasgow City Council and Aberdeen City Council.

ii The Rosendale Report - January 2013

In response to the Evening News article in December 2012, the City of Edinburgh Council issued an apology to families affected by historical practices at Mortonhall Crematorium, and announced a fact-finding investigation. The initial report of this investigation, which was led by Mike Rosendale, then Head of Schools and Community Services, was published early in January 2013. Crucially, the key recommendation from this investigation was that an independent person be appointed to continue investigating historical practices at the Crematorium.

iii Mortonhall Investigation Report - April 2013 - April 2014 ^[1]

I was commissioned to undertake an independent investigation into historical practices at Mortonhall later in January. I was asked to report to The Chief Executive of the Council.

iv Infant Cremation Commission ( ICC) - May 2013 - June 2014

The Infant Cremation Commission, led by Lord Bonomy, was established in May 2013.

The Commission's remit was as follows:

• "to review the current policies, guidance and practice in Scotland in relation to the handling of all recoverable remains (ashes) of babies and infants, and to make recommendations for improvement to ensure that: parents and other bereaved relatives receive clear and consistent advice and information about the disposal of such remains and have their wishes adhered to; and that any such remains are treated sensitively and compassionately;
• to consider existing legislation, with particular reference to the Cremation Act 1902 and the Cremation (Scotland) Regulations 1935, in order to identify gaps, inconsistencies and weaknesses and to make recommendations on what issues should be addressed in future legislation;
• to consider existing practice and guidance in related fields such as the NHS and funeral services in order to identify gaps, inconsistencies and weaknesses that should be addressed; and to make recommendations on the format and content of future guidance;

And

• to give guidance on the conduct of any investigations of historical practice undertaken by Local Authority or independent crematoria Operators."

The Infant Cremation Commission and the Mortonhall Investigation worked closely together.

1.2 Recommendations of the Mortonhall Investigation and the Infant Cremation Commission

Despite the wider remit of the ICC, which gave it greater scope for more specific and legislative changes, the two inquiries made many overlapping recommendations. This was partly because of their close working relationship, as noted above, and also because the Mortonhall Investigation specifically referred many of its recommendations to the ICC for wider national investigation.

Subsequently, the Inquiry into baby and infant cremations at Emstrey Crematorium in Shrewsbury also published a report in June 2015. This Inquiry was led by David Jenkins, who was asked to look at the way infant cremations were carried out at Emstrey Crematorium in Shropshire between 1996 and 2012. David Jenkins' report established that during this period Emstrey Crematorium failed to obtain ashes to return to parents following infant cremations.

The Emstrey Inquiry shared many of the concerns of the ICC and Mortonhall Investigation.

1.3 Responses

i National Committee on Infant Cremation

On 17 June 2014, the day of the publication of the ICC report, the then Minister for Public Health, Michael Matheson, made a formal statement to Parliament accepting all 64 of Lord Bonomy's recommendations. These included, as a priority, the formation of the National Committee on Infant Cremation.

The National Committee's main aims and objectives are set out in Recommendations 57 to 62 of the ICC Report, and can be summarised as follows, to:

• Develop, promote and annually review a Code of Practice on baby and infant cremations which reflects contemporary standards and best practice
• Ensure all recommendations from the Infant Cremation Commission are implemented, through a combination of strategic oversight, monitoring and also through direct tasks which will be undertaken by expert Working Groups set up by the National Committee.
• Promote improvements in practice, technology, policy and legislation
• Report annually to Ministers on standards and practice in baby and infant cremations

The National Committee is chaired by The Scottish Government, and has more than twenty members from multiple organisations and sectors including: clinical and neonatal experts; cremator manufacturers; crematoria and Funeral Directors' representative organisations; bereavement organisations; private and local authority cremation authorities and policy officials from England and Wales, and Northern Ireland. There have also been parent representatives on the Committee and its Sub-Groups to help ensure that those who have been most affected by issues in the past have a real say in improvements to policy, practice and law now and in the future.

To date, the National Committee on Infant Cremation has met on four occasions: 9 October 2014; 26 January 2015; 11 June 2015 and 13 November 2015. In its annual report, published in November 2015, it included as an annex details of the progress made against the ICC recommendations. This showed 27 of the 64 recommendations as fully implemented, with a further 25 recommendations due to be completed by the commencement of the Burial and Cremation (Scotland) Act 2016, and its associated Regulations.

Of the remaining 12 recommendations, 5 are underway and/or planned for 2016; three are annually recurring and therefore not subject to 'final completion'; 2 can only be commenced after the legislation is commenced and a further 2 are expected to be progressed following the completion of this Investigation.

ii The Burial and Cremation (Scotland) Act 2016

The Burial and Cremation (Scotland) Bill was introduced in the Scottish Parliament on 8 October 2015. Designed to completely replace the existing legislation, the Act received Royal Assent on 28 April 2016 and will be commenced in stages.

The Act provides an updated, comprehensive legislative framework for burial and cremation in Scotland. It takes forward the wide-ranging recommendations made by the Burial and Cremation Review Group in its 2007 report ^[2] , and will implement those recommendations made by Lord Bonomy and the Mortonhall Investigation which require legislative change.

In summary, the topics on Cremation covered by the Act are:

• Duties of cremation authorities, applications, fees and registers - pregnancy loss is included in each of these processes;
• Who may instruct the disposal of human remains;
• Inspectors and inspection, as well as the power for Scottish Ministers to introduce licensing of Funeral Directors;
• The suspension of burial and cremation legislation in response to public health risks (for example, pandemics);
• Methods for disposing of human remains which may be introduced in the future;
• The ability of Scottish Ministers to issues codes of practice covering various parts of the funeral industry; and
• A statutory definition of ashes.

In particular, the Act addresses a key recommendation of both the Mortonhall Investigation and the ICC Report, which was to clarify in law the meaning of 'ashes' following cremation. This lack of clarity had on occasion been suggested to some bereaved parents and families as a reason for the failure to return their child's ashes.

The Act takes the Bonomy definition of 'all that is left in the cremator at the end of the cremation process and following the removal of any metal' and incorporates its meaning, intent and effect into the definition of cremation set out at Section 45 :

"Meaning of 'cremation'

(1) In this Act, 'cremation' means the reduction to ashes of human remains by the burning of the remains and the application to the burnt human remains of grinding or other processes.

(2) In this section-

'ashes' does not include metal,

'coffin' includes any type of receptacle,

'human remains' includes, where remains are clothed, in a coffin or with any other thing, the clothing, coffin or other thing."

As well as defining 'ashes', the Act also introduces measures that will ensure clarity about what is to be done with ashes that are recovered. A person who applies for a cremation will need to specify what should be done with the ashes - this will ensure that there is no ambiguity about what will be done with ashes, and will provide a legal statement of the applicant's wishes. The Act also includes provisions on a range of other Bonomy recommendations that will improve procedures for the cremation of babies and infants, and which will additionally make improvements to cremation procedures generally.

iii National Committee on Infant Cremation - Code of Practice

In November 2015, the National Committee published a new Code of Practice. Its purpose was to draw together as many of the ICC recommendations as possible into a format which could easily be monitored by the Committee over time. The Code is also designed to be easily incorporated into sectors', organisations' and even individuals' procedures, policies and behaviours. The Committee indicated that the level of engagement and participation from all relevant organisations suggested that inclusion of the Code of Practice in the Burial and Cremation (Scotland) Act 2016 was unnecessary. They argued that retaining the Code as a non-statutory instrument allows the Committee the flexibility to continue to work with organisations and other stakeholders over time to refine and amend the code, so that it continues to meet everyone's needs. Its status needs to be reconsidered in light of the findings of this Investigation set out in this Report. The Act also provides for regulations with criminal sanctions to be created.

iv Appointment of Inspector of Crematoria

An Inspector of Crematoria for Scotland, Robert Swanson, was appointed in March 2015, in fulfilment of the ICC Report's Recommendation 63. This role currently covers functions laid out in the 1935 Regulations, as well as some broader non-statutory functions, but the Inspector role will change as the legislation is repealed to allow the new Act to come into force .

In brief, the Inspector's current role is to:

• Ensure crematoria are operating in line with the principles set down by Lord Bonomy, and in line with the new Code of Practice.
• Report any criminal or potentially criminal activity to Police Scotland.
• Visit every crematorium in Scotland at least once every year.
• Deal with queries or complaints from the public.
• Provide an annual report to Ministers on activities, but can also report to Ministers on specific issues or concerns if needed.

Since his appointment, the Inspector has undertaken introductory visits to all 28 crematoria in Scotland, and has met with most major stakeholders through attendance at meetings either as an invited guest or as an active member of various groups and committees (including membership of this National Committee on Infant Cremation). He is currently undertaking formal inspections of all 29 crematoria, 16 of which have been completed at the time of writing.

As part of his duties, the Inspector has also already dealt with a number of enquiries and complaints from members of the public and other external agencies. Most significantly for this Investigation, from 5 June 2015 the Inspector has required all crematoria in Scotland to report to him instances where ashes are not recovered following cremation. The Inspector reports that since 5 June 2015 no Crematorium in Scotland has reported a failure to recover ashes from non-viable foetuses, stillborn babies, neonatal or infant babies.

v Updated Guidance on the Cremation of Pregnancy Losses

The National Committee has updated the existing guidance to NHS Scotland, to reflect the ICC recommendations. The revised version was submitted to Scotland's Chief Medical Officer and Chief Nursing Officer and was issued to all NHS Health Boards in June 2015.

vi Ministry of Justice Consultation on Cremation in England and Wales

In December 2015, the Ministry of Justice launched a consultation on cremation, following the UK Government's consideration of the recommendations of the Emstrey Inquiry and the ICC. A majority of the 12 Emstrey report recommendations were for the UK Government, including one specifically recommending that the Government should consider the ICC's 64 recommendations. The consultation therefore considered all of the Emstrey and ICC recommendations together, and sought views on each of them. The consultation closed early in March 2016.