Adath Yisroel Burial Society v HM Senior Coroner for Inner North London
| Jurisdiction | England & Wales |
| Judge | Lord Justice Singh |
| Judgment Date | 27 April 2018 |
| Neutral Citation | [2018] EWHC 969 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/372/2018,CO/372/2018 |
| Date | 27 April 2018 |
The Queen on the application of
and
[2018] EWHC 969 (Admin)
Lord Justice Singh
and
Mrs Justice Whipple
Case No: CO/372/2018
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Mr Sam Grodzinski QC, Mr Khawar Qureshi QC and Mr Benjamin Tankel (instructed by Asserson Law Offices) for the Claimants
The Defendant in person
Mr Jonathan Hough QC (instructed by the Government Legal Department, on behalf of the Chief Coroner of England and Wales) for the Interested Party
Hearing dates: 27–28 March 2018
Judgment Approved
Introduction
This is the judgment of the Court, to which both of its members have contributed.
In this claim for judicial review the Claimants challenge the lawfulness of a policy, which was adopted by the Defendant, who is the Senior Coroner for Inner North London, on 30 October 2017 to the following effect:
“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 has been described at various times by the Defendant as being a “cab rank rule” and “an equality protocol”.
Permission to bring this claim for judicial review was granted by Holman J on 31 January 2018.
The First Claimant, which is not a body corporate, 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 operates as part of the Adath Yisroel synagogue, which is a registered charity. It was founded almost a century ago and is staffed by unpaid volunteers. It has over 5,000 members, most if not all of whom will be affected by the Defendant's policy.
The Second Claimant is a 79 year old orthodox Jewish woman who lives within the administrative area of the Defendant. She has expressed serious concerns, based on her religious beliefs, about the impact of the policy on her: see her witness statement dated 7 March 2018.
Standing
Initially this claim was brought by the First Claimant only. However, on 8 March 2018 permission was granted by Singh LJ to amend the claim so as to include the Second Claimant. The application to amend was made out of “prudence”, since it was recognised that the First Claimant might not have standing as a “victim” to rely on the Convention rights within the meaning of the Human Rights Act 1998 (“ HRA”): see section 7(3) and (7). The application was made with the consent of the Interested Party and without objection from the Defendant.
On behalf of the Claimants it is submitted that both have standing to bring this claim for judicial review, at least in relation to those grounds of challenge which rely on purely domestic law principles of public law, since they have “sufficient interest” in the matters to which the claim relates: see section 31(3) of the Senior Courts Act 1981. No suggestion was made by the other parties that that was wrong. Although standing goes to the Court's jurisdiction and jurisdiction cannot be conferred by consent, we are satisfied that the Claimants do have standing to bring this claim for judicial review in relation to those grounds which rely only on domestic law principles of public law.
It is further submitted that, even if the First Claimant is not entitled to rely on the Convention because it does not qualify as a “victim” under section 7(7) of the HRA, the Second Claimant can properly claim to be a victim of the policy for Convention purposes, given in particular her age and where she lives. It does not matter that a person is not an actual victim. It is clear both from the language of the HRA (in particular section 7(1) and (3)) and from the jurisprudence of the European Court of Human Rights on Article 34 of the Convention that a person can be a victim even though their rights have not yet been violated, provided they “would” be a victim.
It is submitted on behalf of the Second Claimant that she is “personally and directly affected” by the policy. That is the test for whether a person is a victim under both Article 34 of the Convention and section 7(7) of the HRA, which expressly cross-refers to Article 34. The principles which govern the meaning of “victim” in this context were discussed in more detail by Singh J in R (Pitt and another) v General Pharmaceutical Council [2017] EWHC 809 (Admin); (2017) 156 BMLR 222, at paras. 52–67.
In the present case we are not persuaded that the First Claimant has standing to rely on Convention rights in this claim but we are satisfied that the Second Claimant does, since she qualifies as a “victim”.
The Claimants' Grounds of Challenge
The Claimants advance the following grounds of challenge to the Defendant's policy:
(1) Breach of Article 9 of the Convention. The Chief Coroner, who has been joined to these proceedings as an Interested Party, submits that, as a matter of public law and quite apart from the HRA, the Defendant's policy is unlawful on the grounds that it fetters her discretion and it is irrational. On behalf of the Claimants, Mr Sam Grodzinski QC adopts the Chief Coroner's submissions on fettering and irrationality as part of his case on Article 9 and joins with Mr Jonathan Hough QC in inviting the Court to determine those issues, even though they were not raised in his original grounds of challenge.
(2) Breach of Article 14 read with Article 9.
(3) Indirect discrimination contrary to section 19 of the Equality Act 2010.
(4) Breach of the public sector equality duty (“PSED”) in section 149 of the Equality Act.
We are satisfied that it is in the public interest that we determine all issues arising on the facts of this case in a single judgment. We are not however persuaded that the issues of fettering and irrationality, raised by the Chief Coroner, fit conveniently within the Claimants' ground relating to Article 9. We therefore take the issues in the following order:
(1) fettering of discretion;
(2) irrationality;
(3) breach of Article 9;
(4) breach of Article 14, read with Article 9;
(5) indirect discrimination under the Equality Act; and
(6) the PSED.
The Defendant's Position
For the purpose of these proceedings the Defendant has said that she intends to maintain a “neutral” stance. She has not been represented before this Court. However, she has filed various documents with the Court, including Detailed Grounds, an Addendum to her Detailed Grounds and a skeleton argument. In those documents, the Defendant says that she wishes to explain the reasons for adopting the policy and to make this Court aware of certain operational detail about her office. We will consider her reasons in greater detail below.
The Defendant was present throughout the hearing. After the Claimants' submissions had finished, she was asked by the Court whether she would like to say anything but declined that opportunity. However, after the Claimants' reply, she asked for a brief opportunity to be heard, which she was granted. In so far as what she said in her brief oral statement amounted to fresh evidence, which had not been previously served on the other parties, we were invited to ignore it by Mr Grodzinski. We confirm that nothing in our decision turns on any fresh evidence, if that is what it was, adduced at that stage of the hearing.
The Chief Coroner's skeleton argument has helpfully included legal arguments that would have been available to the Defendant had she been represented before the Court. We are particularly grateful to Mr Hough (in both his written and in his oral submissions) for fairly drawing attention to those arguments that could be made in defence of the Defendant's policy as well as making submissions on behalf of the Chief Coroner himself.
The Chief Coroner's Position
The Court has had the benefit of both written and oral submissions by Mr Hough on behalf of the Chief Coroner. The Chief Coroner considers that the Defendant's policy is unlawful, in that it apparently imposes a fixed rule that a coroner or coroner's officer may never treat a task in one case as especially urgent in order to satisfy a strongly held and sincere desire of the family of a deceased person to have the person's body released quickly on religious grounds.
In particular the Chief Coroner submits that:
(1) The policy is over-rigid and involves the Defendant fettering her discretion to take expedited decisions with regard to the needs and interests of particular families.
(2) In context, the policy is not capable of rational justification.
(3) Applied strictly, the policy would infringe Article 9 rights or be discriminatory under Article 14.
However, the Chief Coroner is not persuaded by the Claimants' arguments by reference to the Equality Act and does not agree with those submissions.
Coroners and Their Work
The office of Coroner has a long history and has a primarily territorial jurisdiction. The coroner service in each area is organised locally and funded by a designated local authority. There are presently 89 coroner areas. The Inner North London area includes the administrative areas of four London boroughs: Camden, Hackney, Islington and Tower Hamlets. There may also be an Area Coroner and there will usually be a number of Assistant Coroners, any of whom may exercise the powers of a Senior Coroner in investigations of deaths. All the Coroners for an area are appointed by the responsible local authority and hold office on terms agreed with that authority: see Sch. 3 to the Coroners and Justice Act 2009 (“ CJA”).
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