Legal Update: High Court quashes coroner’s ‘cab rank queue policy’ which had prevented prioritisation of deaths on religious grounds


R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London [2018] EWHC 969 (Admin): in judicial review proceedings brought by a Jewish burial charity against the Coroner for Inner North London, the Coroner’s policy of refusing to prioritise any death over another for religious reasons has been ruled unlawful by the High Court.

Background

The Adath Yisroel Burial Society is a charitable organisation responsible for managing and facilitating the burials of a large proportion of the orthodox Jewish population in Inner North London. It is an important aspect of the Jewish faith that, following death, the funeral should take place as soon as possible, ideally on the day of death itself. The same principle applies to members of the Muslim faith.

Inner North London happens to have a large Jewish community. The Coroner therefore frequently faced pressure from Jewish families for the early release of their family member’s body for burial. Historically, it would seem, the Coroner had accommodated such requests where possible. However in 2017 she expressed concern about the negative impact that such ‘queue jumping’ was having on families of those other deceased in the community who were not of the Jewish faith. She felt that they were being placed at a material disadvantage by being pushed back further in the queue.  The Coroner therefore devised a protocol which stated 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 officers or coroners’. This protocol was described by the Coroner as a ‘cab rank rule’ intended to ensure that the bereaved within her area were treated fairly and made the best use of ‘inadequate resources’.

In drafting this protocol, the Coroner was purportedly assisted by guidance issued by the Chief Coroner in 2014 stating ‘the law does not allow the Coroner to give priority to any one person over another. Nevertheless, Coroners are always sensitive to the needs of certain faith groups. They are committed to providing as complete a service to the public (including release of bodies for early burial) as they are able to within the limits of available resources.’

In her defence the Coroner stated that the policy was intended to apply across the board i.e. that prioritisation was precluded for any reason not just on religious grounds. She stated that in practice the policy was not applied as rigidly as might appear and that cases of organ donation and homicide investigations would be prioritised notwithstanding the policy.

The Jewish Burial Society (with the support of an elderly member of the local Jewish community who was joined as an applicant for good measure) challenged the Coroner’s policy by means of judicial review in the High Court. The primary grounds of challenge were that the Coroner’s policy was unlawful in that it fettered her discretion and that it was also irrational. It was also submitted that the policy gave rise to a breach of Article 9 (the right to freedom of thought, conscience and religion) and Article 14 (the right not to be discriminated against on the grounds of sex, race, colour, language, religion etc.). The Chief Coroner was joined as an interested party in the proceedings and supported the applicant’s challenge.

The process of judicial review looks at the lawfulness of actions and decisions taken by public bodies. The grounds for challenge are as follows:-

  • illegality; or
  • irrationality; or
  • procedural unfairness.

 

The Judgment

The court held that the Coroner’s decision to implement the protocol amounted to an unlawful fettering of her decision-making discretion. Lord Justice Singh stated ‘it is a well-established principle of public law that a policy should not be so rigid as to amount to a fetter on the discretion of decision-makers’ and went on to conclude that:

The policy as formulated imposes a blanket rule that, in taking those decisions, the Coroner will not take into account the circumstances of any individual family where they have a religious basis. As formulated the policy would prevent the Coroner taking into account a relevant consideration, contrary to the above principles of law. This would be so even where there would be limited – or even no – effect on her other work.

Singh LJ was also satisfied that the policy was irrational:

[O]n its face, it precludes taking into account representations which have a religious basis and thereby singles out religious beliefs for exclusion from consideration. There is no good reason for this exclusion. It is discriminatory and incapable of rational justification.

He added that even if the policy precluded taking into account any individual circumstances of any kind whether or not based on religion this was also incapable of rational justification.

Singh LJ was also satisfied that the policy adopted by the Coroner interfered with an individual’s Article 9 right to manifest their religion in a manner which could not be considered proportionate – ‘[t]he fundamental difficulty with the Defendants policy is that it does not strike a fair balance between the rights concerned at all. Rather, as a matter of rigid policy, it requires the Coroner and her officers to leave out of account altogether the requirements of the Jewish and Muslim people in relation to early consideration of and early release of bodies of their loved ones.’  Singh LJ was also satisfied that the Coroner’s policy violated the right to equal treatment pursuant to Article 14 ‘[a]lthough the principle of equality requires like cases to be treated alike, it is not always sufficiently appreciated that it also requires that different cases should be treated differently.’

The judicial review was successful on all grounds save for that based on the duty of public sector equality.

At para 160 Singh LJ helpfully summarised the ‘legal threads’ of the judgment as follows:-

  • A Coroner cannot lawfully exclude religious reasons for seeking expedition of decisions by that Coroner, including the Coroner’s decision whether to release the body for burial.
  • A Coroner is entitled to prioritise cases, for religious or other reasons, even where the consequence of prioritising one or some cases may be that other cases will have to wait longer for a decision. It is not necessary that all cases are treated in the same way or in strictly chronological sequence.
  • Whether to accord one case priority over another or others is for the Coroner to determine. The following further points apply:
  1. it is in principle acceptable for the Coroner to implement a policy to address the circumstances when priority will or may be given, so long as that policy is flexible and enables all relevant considerations to be taken into account.
  2. The availability of resources may be a relevant consideration in drawing up that policy or in making the decision in any individual case but limitations on resources does not justify discrimination.
  • It would be wrong for a Coroner to impose a rule of automatic priority for cases where there are religious reasons for seeking expedition.

Comment

Following the decision in this case the Chief Coroner withdrew the 2014 guidance upon which the Coroner for Inner North London had based her flawed policy. New guidance was issued by the Chief Coroner on 17th May 2018  entitled Guidance no. 28 Report of Death to the Coroner: Decision-making and Expedited Decisions. Click here for the guidance. This guidance is intended to assist Coroners in their decision-making where a bereaved family are requesting urgent consideration of the death of a loved one and/or early release of the body. The guidance explicitly adopts the principles set down in the Adath judgment and emphasises that when making individual decisions on whether to prioritise consideration of particular cases on religious or other grounds, the coroner has a “margin judgment”. As such a Coroner’s decision may only ordinarily be challenged if it is unreasonable or if it clearly fails to strike a fair balance between rights of the particular family and the interests of other families who might be affected.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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