Ancient Scots Law lands a Catch-22

by ScotsLawBlog on September 19, 2011

A 156-year old Scottish statute, the Burial Grounds (Scotland) Act 1855, has recently been used to block campaigners’ attempts to discover if British soldiers were buried in a secret mass grave, as the Sunday Express reports following Freedom of Information requests.Scottish Loch

Led by author John Steele and former Glasgow University organisation “Guard Archaeology”, the campaigners looked to uncover the burial place of some of those who died in the sinking of HMS Dasher in 1943, which resulted in the loss of over 300 lives. While it is known that 12 men were buried in a graveyard in Ardrossan Cemetery in Ayrshire, it is thought that many more may have been buried in nearby mass graves.

Requests to North Ayrshire Council for a sensitive exploratory dig have been unsuccessful. Solicitor to the Council, Ian Mackay has cited the Burial Grounds (Scotland) Act 1855, explaining that no excavations can be performed which could disturb human remains without first informing the next of kin of that person. However, this lends itself to a rather difficult Catch-22 situation, as the names of those in the potential mass grave are unknown and, thus, their next of kin are also unknown. Therefore, unless the graves are excavated to discover the identities of the bodies, the next of kin cannot be identified. Coincidentally, the novel Catch-22 was set in 1943, the same year of the ship sinking.

The Council state that, were permissions to be granted, a “fishing exercise” would result.


It appears that there may be political reasons behind the Government not releasing further details about HMS Dasher or about the bodies, perhaps behind a claim that HMS Dasher was sunk by a friendly torpedo.

Regardless of the theories, the current position stands as a result of an ancient Scottish statute. The citation of the Burial Grounds (Scotland) Act 1855 in this case shows that there is still power in old laws.

It is worth pointing out that the Act itself has come under criticism recently, being described by the Highland Council as “cumbersome and expensive”. Perhaps the HMS Dasher burial story is not yet at an end…

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