The Queen (on the application of the Plantagenet Alliance Ltd) v Secretary of State for Justice (First Defendant) The University of Leicester (Second Defendant) The Members for the Time Being of the Chapter, the Council and the College of Canons of the Cathedral of Saint Martin Leicester (First Interested Party) The Members for the Time Being of the Chapter, the Council and the College of Canons of the Cathedral and Metropolitan Church of Saint Peter York (Second Interested Party)

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeThe Hon. Sir Charles
Judgment Date15 August 2013
Neutral Citation[2013] EWHC B13 Admin
Docket NumberCO Ref: CO/5313/2013

[2013] EWHC B13 (Admin)

In the High Court of Justice

Queen's Bench Division

Administrative Court

Before:

The Honourable Mr Justice Haddon-Cave

CO Ref: CO/5313/2013

In the matter of an application for Judicial Review

Between:
The Queen (on the application of the Plantagenet Alliance Limited)
Claimant
and
Secretary of State for Justice
First Defendant
The University of Leicester
Second Defendant
The Members for the Time Being of the Chapter, the Council and the College of Canons of the Cathedral of Saint Martin Leicester
First Interested Party
The Members for the Time Being of the Chapter, the Council and the College of Canons of the Cathedral and Metropolitan Church of Saint Peter York
Second Interested Party

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 rule 3. l(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
2
3
4
5
6

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 22nd 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 3rd September 2012 the Secretary of State for Justice granted a Licence to the University of Leicester under section 25 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 31st 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 th September 2012, two human skeletons were excavated, one of which bore signs of scoliosis. On 12 th 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 th 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 rd May 2013 challenging:

(1) The Decision of the Secretary of State for Justice on 3 rd 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 th 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 Decision of the University of Leicester on 4 th February 2014 "tobegin making arrangements for the reinterment of the remains of Richard III at Leicester Cathedral".

10

The Secretary of State for Justice and the University of Leicester resist the challenge on the merits and allege delay and lack of standing on the part of the Claimant.

Delay

11

A party bringing judicial review proceedings must do so "promptly" and, in any event, within three months of the decision being challenged ( CPR 54.5). I am satisfied that there has been no unreasonable delay by the Claimant in bringing proceedings in this case. I am also satisfied that it would be appropriate to grant an extension of time to allow the Claimant to the challenge to the Secretary of State's Decision to grant the Licence of 3 rd September 2012.

12

In my judgment, there were good reasons for an immediate challenge not being brought to the original Decision of 3 rd September 2012. The University of Leicester made clear at a press conference on 12 th September 2012 that DNA tests would be required to confirm the identity of the remains. It stated in terms: "[w]e are not saying that we have found Richard III". In a press release dated 26 th October 2012, the University of Leicester said: "…it would be premature to speculate on the outcome of the investigation". It was clear that there could be no guarantee that the remains were those of Richard III until DNA results were obtained. In these circumstances, it would have premature to issue proceedings prior to 4 th February 2013.

13

Once the positive DNA results was announced on 4 th February 2013, those seeking to challenge the Decisions took steps to garner support, obtain legal advice and organise their challenge. I am satisfied that, in all the circumstances, those supporting the Claimant acted with reasonable promptness and cannot reasonably be criticised for lodging the challenge just within the three-month deadline.

Standing

14

A claimant seeking to bring judicial review proceedings must demonstrate that it has "sufficient interest in the matter to which the application relates" (section 31(3) of the Senior Courts Act 1981). The phrase "sufficient interest" is given a wide meaning. The Claimant is a campaigning organisation incorporated on 21 st March 2013 by the 17 th great-nephew of Richard III, Mr Stephen Nicolay. It represents a group of collateral descendants of Richard III who are aggrieved at the decisions taken regarding his re-interment without consultation.

15

I am satisfied that the Claimant, and its subscribers, have sufficient interest and standing to bring these proceedings on all Grounds, both on conventional principles, and in the unusual circumstances of this case which involve the discovery of the proven remains of a former monarch (see the general principles enunciated in R(Argyll Group plc) v. Monopolies and Mergers Commission [1986] 1 WLR 763 and 773; R(Greenpeace Ltd) v. Her Majesty's Inspectorate of Pollution [1994] 4 All ER 329; R(Residents Against Waste Site Ltd) v. Lancashire County Council [2007] EWHC 2558 (Admin); R (Blackfordby and BoothorpeAction Group Ltd) v. Leicestershire County Council; and Walton v The Scottish Ministers [2012] UKSC 44; 2012 S.L.T. 1211 Lord Reed at paragraphs [83] to [84]).

Amenability

16

I am satisfied that the University of Leicester is, for present purposes, acting as public authority and amenable to judicial review in respect of its Decision under challenge (c.f. Ali v. Head Teacher and Governors of Lord Grey School [2004] QB 1231).

Merits

17

In my judgment, the merits of the Claimant's challenge are clearly arguable.

18

Counsel for the Plantagenet Alliance submit that the law of England is not simply based on "finders keepers", particularly where the remains of a former King of England are concerned. There is obvious force in this submission.

19

The Claimant's challenge is put in a number of different basis, but the core submission is that the Secretary of State for Justice had a duty in law to consult 'relevant interests', including descendants, as to how, and where, the remains of Richard III should be reburied, but he failed to comply with that duty prior to issuing the Licence or at any time thereafter. The Claimant submits that the 'relevant interests' are: (i) the citizens of the UK who have an interest in the fate of the rediscovered body of a historically important anointed former monarch of the realm; (ii) the living collateral descendants of Richard III; (iii) the wishes of Richard III himself, in so far as they can be ascertained or inferred.

Burial Act 1957

20

Section 25 of the Burial Act 1857 confers an unfettered discretion on the Secretary of State to decide to decide whether to grant a licence on...

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