R (HM Coroner for East London) v Secretary of State for Justice
| Jurisdiction | England & Wales |
| Judge | Mr Justice Tugendhat,Lord Justice Laws |
| Judgment Date | 31 July 2009 |
| Neutral Citation | [2009] EWHC 1974 (Admin) |
| Docket Number | Case No: CO/7225/2008 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 31 July 2009 |
[2009] EWHC 1974 (Admin)
IN THE HIGH COURT OF JUSTICE
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Laws
Mr Justice Tugendhat
Case No: CO/7225/2008
Ms Alison Hewitt (instructed by London Borough of Waltham Forest) for the Claimant
Mr Paul Brown QC (instructed by Treasury Solicitors) for the Defendant
Mr Mark Hill QC and Leslie Thomas (instructed by Sutovic and Hartigan) for the 3 rd interested party
The 1 st and 2 nd interested parties appeared in person
Hearing date: 27 July
The Claimant is the Coroner for the Eastern District of London. She has been granted permission to challenge the decision of The Secretary of State for Justice not to re-issue a licence under Section 25 of the Burial Act 1857 for the exhumation of Petar Sutovic (“the deceased”) who died in Belgrade on 27 January 2004, aged 24 years. The decision was notified to her in a letter dated 15 May 2008 (“the Decision Letter”).
We heard argument from Miss Hewitt for the Claimant and did not require submissions from The Secretary of State or the Interested Parties. After giving these parties an opportunity to add what they wished to say, we indicated that we would refuse the Claimant's applications for reasons that would be handed down later. These are the reasons.
The deceased was a British citizen. His body was returned to the district of the North London Coroner, who assumed jurisdiction once the presence of the body in his district was reported to him.
On 27 September 2004 the North London Coroner returned an open verdict (“the original inquest”). The injury causing death was described as “morphine poisoning”. Under the heading “time, place and circumstances at or in which injury was sustained”, the North London Coroner recorded:
“In the early hours of 27 January 2004 the deceased was seen lifeless at his mother's flat in Belgrade. There was no evidence as to the exact circumstances surrounding the death. He had previously been a drug abuser but his mother said that recent drug screens were negative”.
The deceased's mother, Mrs Sutovic, is a solicitor in London. She is the First Interested Party in the present proceedings. She commenced two sets of proceedings, one in December 2004 and the second in April 2005. These came before this court and judgment was handed down on 17 May 2006 Sutovic v HM Coroner for North London [2006] EWHC 1095 (Admin). The first set of proceedings was an application for judicial review of the North London Coroner's verdict, on the grounds of procedural irregularity and insufficiency of enquiry. That claim failed. The second set of proceedings was an application pursuant to Section 13 of the Coroners Act 1988. Mrs Sutovic contended that as a result of evidence which she had by then obtained, it was both necessary and desirable in the interests of justice that another inquest should be held.
The judgment of the court, handed down by Moses LJ, included the following at paras 95 to 99:
“95. Whilst, on the state of the evidence at present, any other verdict than an open verdict may seem unlikely, we are persuaded that in the light of the evidence which has emerged since the coroner's verdict a fresh inquest should be ordered….
97. In the present case in the inquest verdict the coroner did record some circumstances… and in particular that there was no evidence as to the exact circumstances surrounding the death. But it appears that there is evidence of at least some of the circumstances surrounding the death. Those circumstances have never been fully investigated and indeed could not be investigated since that evidence had not yet emerged, at the time of the verdict on 27 September 2004. The evidence includes the report of the Serbian Ministry of Interior Affairs dated 11 April 2005, the reports of doctors Milosavljevic and Gavalas as to the appearance of the deceased and to the presence of blood at the scene.
98. If, after examination of the circumstances at a fresh inquest, it emerges that the deceased had been treated with violence at the time of his death, even if that only leads to another open verdict, that seems to us to be a conclusion very different from that which already had been reached…. The evidence which has now emerged may cast a very different light upon the circumstances of Petar Sutovic's death. In those circumstances we would allow the application under Section 13 and order a fresh inquest before a different coroner.
99. We should emphasise that our conclusion is based on a very small amount of the material before us and despite the over abundance of argument, evidence and experts' reports. It will be for the coroner conducting a full and fair fresh inquest to sift that which is of use and that which is without foundation. The claimant's grief deprived her of the ability to do so in prosecuting either the judicial review proceedings or the claim under Section 13 of the 1988 Act. Many of her concerns are not legitimate and have been fuelled by experts reports, some of which we consider are flawed for the reasons we have set out, in particular the apparent non disclosure to those instructed by or on behalf of the claimant of the Serbian Ministry of Interior Affairs' report demonstrating the inadequacies of the original investigation and the fact that the scene of the death was not sealed. Notwithstanding this, it seems to us that the public interest requires that should be done, if only to allay the fears and suspicions which have already, possibly unnecessarily been aroused”.
When the Claimant considered the evidence and documents, she concluded that two matters were of particular importance. They were first, whether the deceased, who allegedly had a history of abusing drugs, was doing so at the time of his death and, second whether the deceased had been assaulted and had suffered facial injuries at the time of his death. The Claimant decided that in order to enquire properly into these two issues a further post-mortem examination of the deceased's body was needed. Such examination would enable samples of the deceased's hair, nails and muscle/tissue to be taken which could be analysed in order to throw light on his use of drugs, both legal and illegal, for a period of up to eight months preceding his death. It would also enable an x-ray to be taken of the deceased's skull, which would assist the pathologist and the Claimant in considering whether he suffered facial injuries at the time of his death.
The deceased is buried in the Gunnersbury Cemetery in Acton. This is owned and run by the Royal Borough of Kensington and Chelsea (“RBKC”). RBKC raised no objection to the exhumation of the deceased's body taking place, at least in the first instance. The Claimant did not anticipate that Mrs Sutovic would object to the proposed exhumation either. The transcript of the post judgment discussion and ruling on 17 May 2006 records that counsel then instructed on her behalf by the firm of solicitors of which she is a partner said this:
“My Lord, the one other matter which I would like to say on instructions from my client is that she is now instructing me that she will be seeking an order for exhumation for her son's body …”
The circumstances in which the Claimant applied for a licence from The Secretary of State in this case are unusual, if not unique. In almost all cases in which a coroner wishes to exhume a body the coroner can do so by exercising the power in Section 23 of the Coroners Act 1988 to issue a warrant of exhumation. However, that power can be used only if the body in question is lying within the coroner's district. The section reads:
“(1) A coroner may order the exhumation of the body of a person buried within his district where it appears to him that it is necessary for the body to be examined
(a) for the purpose of his holding an inquest into that person's death…
(2) The power of a coroner under this section shall be exercisable by warrant under his hand.
(3) No body shall be ordered by a coroner to be exhumed except under this section”.
Gunnersbury Cemetery in Acton does not lie within the Claimant's district. Section 13(3) of the Act would normally assist in such a situation, as it provides that a coroner who is ordered by the court to hold a fresh inquest under Section 13 should be treated “as if he were the coroner for the district” who held the original inquest. However, this provision did not assist the Claimant, as Gunnersbury Cemetery does not lie within the North London Coroner's district either. It lies within the district of the West London Coroner. Why it was that the Claimant, rather than the West London Coroner, was nominated to hold the fresh inquest is not something about which any information has been put before the court.
In October 2006 the Claimant applied to the Department for Constitutional Affairs (the predecessor of The Ministry of Justice) for a licence under Section 25 of the Burial Act 1857. That section provides as follows:
“Except in the cases where a body is removed from one consecrated place of burial to another by Faculty granted by the Ordinary for that purpose, it shall not be lawful to remove any body or the remains of any body which may have been interred in any place of burial without licence under the hand of one of Her Majesty's Principal Secretaries of State…; and any person who shall remove any such body or remains contrary to this...
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