High Court rules Coroner’s ‘first come first served’ system for burials is unlawful
The High Court has today ruled in favour of a joint judicial review application by a religious organisation and an Orthodox Jewish woman against a policy of the Inner North London Senior Coroner that:
‘No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the Coroner’s Office or Coroners.’
The practical consequence of this policy has been that inquests and subsequent burials in Inner North London have been dealt with on a ‘first come first served’ basis since its implementation, apart from in those instances where organ donation has been sought or where a homicide investigation is underway. However, today’s decision declared the current policy unlawful.
The challenge to the above policy arose from discontent amongst certain Jewish and Muslim groups whose respective religious laws require bodies to be buried either on the day of an individual’s death or as soon as possible thereafter.
The Senior Coroner for Inner North London, Ms Mary Hassell, had previously indicated that she would not expedite certain inquests based solely on religious grounds. Her decision attracted widespread criticism given that Inner North London is an area which includes the boroughs of Camden, Islington, Hackney and Tower Hamlets, all of which are recognised as having substantial Muslim Minority and Orthodox Jewish populations.
A judicial review was brought before the High Court on the following grounds:
- Fettering of discretion
- Breach of the right to manifest religion in Article 9 of the European Convention of Human Rights Act 1998
- Breach of Article 14, read with Article 9, which guarantees equal treatment in the enjoyment of Convention rights
- Indirect discrimination under section 29 of the Equality Act 2010, and
- Breach of the Public Sector Equality Duty in section 149 of the Equality Act
In providing their ruling on the issue Lord Justice Singh and Mrs Justice Whipple permitted the first five grounds, only rejecting the sixth.
Whilst the judgment conveyed the unlawfulness and unsuitability of the policy previously implemented by Ms Hassell, it was commented that it had not arisen out of intentional discrimination on her part but rather a ‘misapprehension that the law did not allow her to give priority to any one person.’
The Court did not, however, recognise that a complete reversal in policy would be appropriate and qualified their judgment by specifying that ‘it would be wrong for a Coroner to impose a rule of automatic priority for cases where there are religious reasons for seeking expedition’. Instead it was ruled that a Coroner has a margin of judgment that permits them to prioritise cases:
‘for religious or other reasons, even where the consequence of prioritising one or some of the cases may be that other cases will have to wait longer for a decision.’
Additionally the Court clarified that this discretion on the part of a Coroner is not open to dispute purely because a decision is not agreeable to a particular family in a given instance.
In providing their judgment it was expressly ruled by the presiding judges that Ms Hassell will be required to devise and implement a new policy that encapsulates the Court’s decision.
Today’s decision has been heralded as a ‘resounding victory for those who have campaigned for the Coroner’s service to be brought into the 21st century.’
The judgment can be accessed here:
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