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R (Plantagenet Alliance Ltd) v Secretary of State for Justice and Others [2103] EWHC B13 (Admin)

Inquest Law Reports Cited authorities 13 Cited in 3 Precedent Map Related
Vincent
JurisdictionEngland & Wales
JudgeHaddon-Cave J
Judgment Date15 August 2013
CourtQueen's Bench Division (Administrative Court)
Docket NumberCO/5313/2013
Date15 August 2013
R (Plantagenet Alliance Ltd)
and
Secretary of State for Justice and others

Judge: Haddon-Cave J

CO/5313/2013

Administrative Court

Issue: Whether the Secretary of State for Justice had a common law duty to consult widely as to how and where the remains of Richard III should be buried.

Facts: Under grant of a licence of exhumation granted by the Secretary of State pursuant to s25 of the Burial Act 1857 the University of Leicester excavated the remains of Richard III from a Leicester car park. The terms of the licence gave the University the right to determine how and where any excavated remains were to be re-interred. The Secretary of State undertook no wider consultation prior to issuing the licence. Having confirmed through DNA testing that the remains were those of Richard III, the University announced its intention to re-inter the remains in Leicester Cathedral.

The Ministry of Justice sought to arrange a consultation meeting with national bodies, including the Church of England, the Catholic Church and HM The Queen, to discuss the question of the re-burial of Richard III. This was not extended to include any descendants.

The Claimant, a not-for-profit entity set up by a collateral descendant of Richard III, applied for permission to judicially review the decision of the Secretary of State to grant the exhumation licence without first undertaking wider consultation regarding how and where the remains should be reburied.

Judgment:

UPON the Claimant's application for (1) Permission to bring Judicial Review proceedings against the First and Second Defendants, (2) an extension of time to bring such proceedings pursuant to CPR r3.1(2)(a); and (3) a Protective Costs Order

AND UPON consideration of the Statement of Facts and Grounds for Judicial Review, the Acknowledgements of Service and Grounds for Resisting the Claim, the witness statements and exhibits and other documents lodged by the Claimant, the First Defendant, the Second Defendant, the First Interested Party and the Second Interested Party

It Is Hereby Ordered And Directed By The Honourable Mr Justice Haddon-Cave That:

1 The Claimant's application for Permission to bring Judicial Review proceedings against the First and Second Defendant is granted on all grounds.

2 Time for bringing such Judicial Review proceedings be extended as necessary.

3 The First and Second Defendant shall, within 21 days, in accordance with their respective duties of candour, each give disclosure of all correspondence, notes and other documents relevant to (i) the circumstances surrounding the original application and grant of the Licence and (ii) all subsequent discussions and exchanges concerning the remains of Richard III and their re-interment.

4 There shall be a Protective Costs Order whereby the First and Second Defendants shall be prevented from recovering their costs of these proceedings from the Claimant.

5 The Claimant's own costs of these proceedings shall be capped at a level to be set by the Court. The Claimant shall apply to Mr Justice Haddon-Cave sitting as the Vacation Judge in Court 37 in the week of 23 September 2013 to set the cap level, on notice to the other parties.

6 The substantive hearing of these proceedings to be set down for hearing next term (estimate 1 day). Skeletons to be exchanged 1 week before the substantive hearing.

Reasons:

1. The archaeological discovery of the mortal remains of a former King of England after 500 years is without precedent.

2. In my judgment, it is plainly arguable that there was a duty at common law to consult widely as to how and where Richard III's remains should appropriately be re-interred. I grant permission to the Claimant to bring Judicial Review proceedings against the Secretary of State for Justice and the University of Leicester on all Grounds.

Background

3. On 22 August 1485, Richard III was killed at the Battle of Bosworth. His body was taken by supporters of the victorious Henry VII to the nearby town of Leicester and buried in Gray Friars Church. Richard III's death brought to an end the Wars of the Roses and the Plantagenet dynasty, and heralded the advent of the Tudor era. Richard III has remained a historical figure of significance and controversy.

4. In 2012, his remains were discovered buried under a municipal car park owned by Leicester City Council, on the former site of Gray Friars Church (destroyed in 1538 during the Dissolution of the Monasteries). The discovery was the result of inspired, determined and meticulous work by members of the Richard III Society (notably. Ms Phillipa Langley), the University of Leicester Archaeological Services (headed by Mr Richard Buckley) and Leicester City Council.

5. In September 2012, the University of Leicester Archaeological Services applied to the Secretary of State for Justice for an exhumation licence in the following terms:

‘A research excavation is underway to investigate the remains of Leicester's Franciscan Friary and also potentially locate the burial place of Richard III whose remains were interred here in 1485, although those may subsequently have been exhumed and thrown into the nearby River Soar after the Dissolution in 1538. It is proposed to exhume up to six sets of human remains for scientific examination’.

6. On 3 September 2012 the Secretary of State for Justice granted a Licence to the University of Leicester under s25 of the Burial Act 1857 (20 & 21 Vic, cap 81) for the removal of remains of ‘persons unknown’ from the site and for such remains no later than 31 August 2014 ‘to be deposited at the Jewry Wall Museum or else be reinterred at St Martins Cathedral or in a burial ground in which interments may legally take place’.

7. On 5 September 2012, two human skeletons were excavated, one of which bore signs of scoliosis. On 12 September 2012, the University of Leicester Archaeological Service announced that its preliminary investigations indicated that the remains of Richard III had been found, but identity of the remains could not be confirmed until mitochondrial DNA tests had been carried out. The University of Leicester indicated that any remains of Richard III would be re-interred at Leicester Cathedral.

8. On 4 February 2013, the University of Leicester announced that DNA results had confirmed beyond reasonable doubt that these remains were, indeed, those of Richard III.

The Challenge

9. The Claimant issued Judicial Review proceedings on 3 May 2013 challenging:

(1) The Decision of the Secretary of State for Justice on 3 September 2012 to grant the Licence ‘without consulting, or attaching requiring the licensee to consult, as to how [or where] the remains of Richard III should be appropriately re-interred in the event that they were found’.

(2) The Decision of the Secretary of State for Justice on 4 February 2014 and subsequently ‘not to re-visit the grant of the Licence once it became clear that the University would not carry out an appropriate consultation’.

(3) The...

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