The Queen (on the application of Plantagenet Alliance Ltd) v Secretary of State for Justice (First Defendant) The University of Leicester (Second Defendant) Leicester City Council (Third 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)
| Jurisdiction | England & Wales |
| Judge | Hallett LJ,Ouseley,Haddon-Cave JJ |
| Judgment Date | 23 May 2014 |
| Neutral Citation | [2014] EWHC 1662 (Admin) |
| Docket Number | CO/5313/2013 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 23 May 2014 |
[2014] EWHC 1662 (Admin)
Judges: Hallett LJ, Ouseley and Haddon-Cave JJ
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: T he Claimant applied to review the decision to grant a licence to the University of Leicester Archaeological Services to exhume the remains of Richard III from an archaeological dig. The licence granted ULAS permission to exhume any remains discovered and imposed reburial conditions to the effect that the remains were to be re-interred in Leicester Cathedral.
The Claimant was a not-for-profit entity established to represent the interests of a number of collateral descendants of Richard III who wished to see the remains re-interred in York Minster.
The Claimant challenged: the Secretary of State's decision to grant the licence without consulting, or attaching conditions requiring the licensee to consult, as to how or where the remains should be appropriately re-interred in the event that they were found; the failure to revisit or reconsider the licence once the remains had been conclusively identified as those of Richard III and to carry out a sufficient inquiry by public consultation as to where he should be reburied (citing Secretary of State for Education and Science v Tameside MBCELR[1977] AC 1014); and the decision of the Council and University to begin making arrangements for the re-interment of the remains at Leicester Cathedral. The Claimant relied upon the basic Common Law principle of fairness as expressed in the public law duties to consult, to carry out sufficient inquiry, and to have regard to relevant considerations. Following permission to apply being given ([2013] Inquest LR 204) the Court considered the substantive challenge.
Appearances: G Clarke and T Cleaver (instructed by Gordons LLP) for the Claimant; J Eadie QC and B Watson (instructed by the Treasury Solicitor) for the First Defendant; A Proops and H Emmerson (instructed by The University of Leicester) for the Second Defendant; A Sharland (instructed by Leicester City Council) for the Third Defendant.
1. Richard III was the last King of England to die on the battlefield. His death marked the end of the Middle Ages. He has remained a significant and controversial historical figure ever since. Tudor propagandists in the 16th Century portrayed him in a negative light. Thomas More described Richard III as ‘little of stature, ill-featured of limbs, crook-backed… hard-favoured of image’. Polydore Vergil says Richard III was ‘deformed of body… one shoulder higher than the other’ (Ross, Richard III, pp. xxii-xxiv). Shakespeare famously characterised Richard III as a ruthless and scheming Machiavellian villain, albeit a man of wit and courage. There was, however, a revival of interest in Richard III's reign and character in the 20th Century, championed by groups such as the Richard III Society.
2. The Richard III Society (‘the Society’) was formed in 1924, over 400 years after his death. In 1980, HRH The Duke of Gloucester became its patron. The Royal Family is, however, not descended lineally from Richard III. No one is. The Society's aim was to rehabilitate Richard III's historical reputation, promulgating a more balanced picture of Richard III as a good and humane man who sought stability, peace, order and sound administration for a kingdom recently much troubled. The Society has an established reputation for its historical research. Its membership numbers several thousand around the world.
3. One of the Society's leading members, Ms Philippa Langley, had a strong desire to find Richard III's body. Initial research narrowed down the location of Richard III's grave to an open-air municipal car-park in Leicester on the site of the Grey Friars Priory. The car park, owned by Leicester City Council (‘the Council’) overlay part of the Priory's former grounds.
4. Ms Langley worked in partnership with the University of Leicester Archaeological Services (‘ULAS’). Necessary permissions for excavating the site and funding from, amongst others, Leicester University (‘the University’) were obtained. On 24 August 2012, human bone was discovered and digging stopped. On 3 September 2012, an exhumation licence was obtained from the Burials Team of the Ministry of Justice, which meant that the archaeological work could continue. On 5 September 2012, two human skeletons were unearthed, one of which bore the unmistakeable signs of scoliosis and traumatic injury. Steps were taken to trace descendants of Richard III's sister, Anne of York, for mitochondrial DNA purposes. On 4 February 2013, the University of Leicester announced that DNA matching that of Anne of York had been taken from two descendants, the results confirmed beyond reasonable doubt that the remains were those of Richard III and it had been agreed they should be re-interred in Leicester Cathedral.
5. The Claimant, The Plantagenet Alliance Limited, objected. The Plantagenet Alliance is a not-for-profit entity set up by Mr Stephen Nicolay, the 16th great-nephew of Richard III. Mr Nicolay is the sole director and shareholder of the Claimant, which he incorporated to pursue the litigation brought on behalf of himself and a number of collateral descendants of Richard III (comprising 16th, 17th and 18th great-nephews and great-nieces). However, they represent but a tiny fraction of Richard III's descendants. Calculations of the number of living collateral descendants of Richard III varies between one and well over ten million worldwide.
6. Mr Nicolay was not a member of the Society and not aware that he was probably related to Richard III until late 2011. In early 2012 he received confirmation that he is a 16th great-nephew. The Claimant's stated aim, in challenging the licence to exhume what we now know are Richard III's remains, is to bring about their re-interment in York Minster. Thus, Richard III has, once more, become the subject of keen debate.
7. In the exceptional circumstances of this case, we shall set the scene with a short and, we hope, uncontentious summary of Richard's life.
8. Richard Plantagenet was born in 1452 at Fotheringay Castle in Northamptonshire. He was the youngest son of Richard, 3rd Duke of York, and Cecily Neville, and twelfth of their thirteen children. He was born into a world dominated for the next 30 years by the complex dynastic and civil conflicts fought by rival branches of the Plantagenets, the Houses of Lancaster and York, which became known as the “Wars of the Roses”.
9. In 1460, Richard's father, a claimant to the throne of King Henry VI, was killed at the Battle of Wakefield, together with Richard's elder brother Edmund, Earl of Rutland. Richard, then aged eight, and his elder brother George, later Duke of Clarence, were sent to the Low Countries.
10. In 1461, Richard's eldest brother, Edward, seized the English throne by defeating the Lancastrians at the Battle of Towton and was crowned King Edward IV. Richard attended the coronation and was named Duke of Gloucester, appointed a Knight of the Garter and a Knight of the Bath.
11. Richard was then sent to Middleham Castle in Wensleydale, Yorkshire, for knightly training under the tutelage of his cousin Richard Neville, 16th Earl of Warwick, who became known as “Warwick the Kingmaker”. Richard stayed at Middleham, and Warwick's other estate at Sheriff Hutton, until early 1465. Richard developed idiopathic scoliosis during his adolescence, causing curvature of the spine.
12. In 1464, Edward IV secretly married a Lancastrian widow, Elizabeth Woodville. This alienated Warwick, who sought a political match with a European princess.
13. In 1470, Warwick defected to the side of Margaret of Anjou, who favoured the House of Lancaster. Richard and his brother Edward IV fled to Burgundy, where they were looked after by Richard's sister Margaret, wife of Charles the Bold, the Duke of Burgundy.
14. In 1471, Richard and Edward IV returned to England. Richard, although only 18 years old, was given command of the vanguard at the Battles of Barnet and Tewkesbury. These battles were resounding victories for the Yorkists. The Earl of Warwick and the Lancastrian heir, Prince Edward of Wales, were killed. Henry VI died shortly thereafter. Edward IV was restored to the throne of England in the spring of 1471.
15. Edward IV granted Richard many of Warwick's forfeited estates. In 1472, Richard married Warwick's daughter, Anne Neville, the widow of Prince Edward of Wales. Richard became a powerful magnate in his own right, with particular influence in Yorkshire and elsewhere in the north of England. Richard served Edward IV as a military commander and Governor of the North. In 1475, Richard took part in the invasion of France. In 1476, Anne gave birth to their only child, Edward. In 1482, Richard attended Parliament for the attainder of his brother The Duke of Clarence for treason and his execution. In 1482, Richard invaded the Kingdom of Scotland at Edward IV's behest.
16. In 1483, Edward IV died shortly before his 41st birthday. His Queen, Elizabeth Woodville, had borne two male heirs, Edward V (aged twelve) and his younger brother Richard, Duke of York. Elizabeth sent for her elder son, Edward, to be brought to London from Ludlow for his coronation as Edward V. He was to be accompanied to London by his maternal uncle, Earl Rivers. Richard, who by this time had been appointed Lord Protector, travelled south towards London with Lord Hastings. En route, Richard encountered and arrested Earl Rivers at Northampton and escorted his nephew, Edward V, to London. They arrived on 4 May 1483. The young Edward V was...
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