R (Ghai) v Newcastle upon Tyne City Council

JurisdictionEngland & Wales
JudgeLord Justice Moore-Bick,Lord Justice Etherton
Judgment Date10 February 2010
Neutral Citation[2010] EWCA Civ 59
Docket NumberCase No: C1/2009/1261
CourtCourt of Appeal (Civil Division)
Date10 February 2010
Between
The Queen on the Application of GHAI
Appellant
and
Newcastle City Council & Others
Respondent
and
Secretary of State for Justice
Interested Party
and
(1) Ramgharia Gurdwara, Hitchin
First Intervener
and
(2) Alice Barker Welfare and Wildlife Trust
Second Intervener
and
(3) The Equality and Human Rights Commission
Third Intervener
and
(4) The Hindu Merchants Association
Fourth Intervener

[2010] EWCA Civ 59

[2009] EWHC 978 (Admin)

Mr Justice Cranston

Before: Master of the Rolls

Lord Justice Moore-Bick

and

Lord Justice Etherton

Case No: C1/2009/1261

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEENS BENCH DIVISION (ADMINISTRATIVE COURT)

Mr Ramby de Mello and Mr Tony Muman (instructed by J M Wilson Solicitors) for the Appellant

Mr John McGuinness QC (instructed by Newcastle City Council Legal Services) for the Respondent

Mr Jonathan Swift and Ms Joanne Clement ( instructed by Treasury Solicitors) for the Interested Party

Mr Satvinder Juss (Pro Bono) for the First Intervener

Mr Richard Drabble QC, Mr Eric Fripp and Mr Ellis Wilford (instructed by Simons Muirhead & Burton) for the Second Intervener

Ms Helen Mountfield ( instructed by The Equality & Human Rights Commission) for the Third Intervener

Mr Adrian Berry (instructed by Wilson Barca Solicitors) (Pro Bono) for the Fourth Intervener (by written submissions only)

Hearing date: 18 January 2009

The Master of the Rolls:

1

After he dies, Mr Davender Ghai wishes his body to be cremated in accordance with his religious beliefs as a Hindu. On 30 January 2006, he wrote to Councillor Arnold, the leader of Newcastle City Council (“the Council”), asking for “out-of-town land, some 10–12 miles from the city” to be “dedicated … for traditional open air funeral pyres”. Some two weeks later, Councillor Arnold replied, explaining that it was impossible for the Council to accede to the request in the light of the provisions of regulation 3 of the Cremation Regulations 1930 SR & O 1930/1016 (“the 1930 Regulations”), a view he reinforced with counsel's opinion which he subsequently sent to Mr Ghai. Mr Ghai then issued the instant proceedings for judicial review of the Council's refusal to give effect to his request.

2

The hearing before the Judge, Cranston J, proceeded (unsurprisingly in the light of the correspondence referred to above) on the assumption that the cremation desired by Mr Ghai would be in the open air, i.e. not within any structure. Subject to one argument (which was, realistically, not pursued on this appeal), it was accepted by Mr Ghai that such an open air cremation would have been precluded by the legislation relating to cremation, at least if interpreted without reference to section 3 of the Human Rights Act 1998. Mr Ghai's primary case before the Judge was that, if this was the right interpretation of the legislation, there would be an impermissible interference with his right to manifest his religion or belief under Article 9 of the European Convention. Although the Judge accepted that Article 9 was engaged, he went on to hold that the interference was justified – [2009] EWHC 978 (Admin). (Mr Ghai also relied on Article 8 and Article 14 of the Convention, but the Judge held that they were not engaged.)

3

That was not only the primary basis upon which the case proceeded below: it was also the primary basis upon which the skeleton arguments for this appeal were prepared. However, examination of the evidence, including further documents put in on behalf of Mr Ghai for the purpose of this appeal, suggested that his religious belief does not in fact require him to be cremated, after his death, on a pyre in the open air. As was confirmed by his counsel on the hearing of this appeal, Mr Ghai's religious belief would be satisfied if the cremation process took place within a structure, provided that the cremation was by traditional fire, rather than by using electricity, and sunlight could shine directly on his body while it was being cremated. An example of the type of structure which would be acceptable to him was shown to us in the form of photographs of premises in Ceuta in Spanish Morocco (“the Ceuta premises”). That example was proffered by the Fourth Intervener for the first time on this appeal, but there were photographs of other examples in the evidence below.

4

In these circumstance, it appeared that there was an issue, which was logically anterior to those which have been debated and decided at first instance, namely whether, as had apparently been assumed on all sides until the hearing before us, the accommodation of Mr Ghai's wishes would in fact necessarily infringe the legislation relating to cremation. Accordingly, we decided to hear argument on that issue, on the basis that its resolution might render irrelevant all the other issues, interesting and important as they may be, which had been raised, and indeed decided, below.

5

Having heard oral submissions, we decided to rule on that issue, as it raised a relatively short point, whose resolution might avoid the need for any further argument. The burden of the submissions on the issue was taken on by Mr de Mello on behalf of Mr Ghai (supported by two of the interveners, the Equality and Human Rights Commission, through Ms Mountfield, and the Ramgharia Gurdwara Hitchin, through Mr Juss), on the one hand, and, on the other hand, Mr Swift, on behalf of the Secretary of State, who joins the proceedings as an interested party (supported by Mr McGuinness QC for the Council). Mr Drabble QC, who is instructed by another intervener, understandably took no part in the argument.

6

Cremations in England and Wales are governed by the Cremation Act 1902 (“the Act”). The long title to the Act states that it is “[a]n Act for the regulation of the burning of Human Remains and to enable Burial authorities to establish crematoria”.

7

Section 2 of the Act provides that in that Act:

“The expression “crematorium” shall mean any building fitted with appliances for the purpose of burning human remains, and shall include everything incidental or ancillary thereto”.

Section 4 extends the powers of a burial authority to provide and maintain burial grounds or cemeteries to “the provision and maintenance of crematoria”. Section 5 prohibits “the construction of a crematorium” within 200 yards of a dwelling house “except with the consent, in writing, of the owner”, and within 50 yards of any public highway. Section 6 enables burial authorities to accept land “for the purpose of a crematorium”, or “a donation … for enabling them to acquire, construct or maintain a crematorium”.

8

Section 7 of the Act provides that:

“The Secretary of State shall make regulations as to the maintenance and inspection of crematoria, and prescribing in what cases and in what conditions the burning of any human remains may take place, and directing the disposition or interment of the ashes, and prescribing the forms of the notices, certificates… to be given or made before any such burning is permitted to take place…”.

Section 8 renders it an offence to “contravene any such regulation” or “knowingly [to] carry out or procure or take part in the burning of any human remains except in accordance with such regulations and the provisions of this Act”. Section 14 provided that “any provisions of any local and personal Act for the like purposes as this Act” should “cease to have effect” from the date on which regulations made under section 7 came into force.

9

The 1930 Regulations were the regulations made under section 7 of the Act in force until they were replaced with effect from 1 January 2009 by the current regulations, the Cremation (England and Wales) Regulations 2008, SI 2008/2841 (“the Regulations”). As the note to the Regulations records, there is little difference between the two sets of regulations, and there is no relevant difference, I think, for present purposes. Regulation 2(1) of the Regulations contains definitions including that of cremation, which is defined as “the burning of human remains”. The centrally important provision for present purposes is regulation 13 which is headed “Place where cremation may take place”, and is in these terms:

“No cremation may take place except in a crematorium the opening of which has been notified to the Secretary of State”.

10

The combined effect of the Act and the Regulations is, therefore, that a cremation can only lawfully take place in a structure (i) which is a “building”, reading regulation 13 together with section 2, (ii) which has been constructed in a location which satisfies section 5, (iii) which is “fitted with appliances for the purpose of burning human remains”, pursuant to section 2, and (iv) whose “opening has been notified to the Secretary of State”, under regulation 13. (Whether the Act, on its own, excludes cremation outside a “crematorium” does not call for decision in this case, at any rate at this stage: on a strictly literal reading, there may be a case for saying that it does not, but a more purposive reading could well justify a different result).

11

Difficulties which may be thrown up by planning and public health legislation do not fall for consideration at this stage. Accordingly, it is necessary to consider whether any of the four requirements which I have extracted from the Act and the Regulations, construed in accordance with normal principles of interpretation, would prevent Mr Ghai's wishes as to the cremation of his remains after his death being in due course accommodated.

12

As already indicated, whatever may have been assumed or stated to be the position...

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