Newsletters Professional Discipline 14th Jun 2018

New Guidance issued after Coroner’s ‘cab rank’ policy on burial quashed by the High Court in R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London [2018]

The case of Adath Yisroel Burial Society v HM Senior Coroner for Inner North London [2018] EWHC 969 (Admin) involved a judicial review challenge to the lawfulness of a policy developed by the Senior Coroner for Inner North London which said: “No death will be prioritised in any way over any other because of the religion of the deceased or family, either by the coroner’s officers or coroners”. This policy amounted to a blanket refusal to any request for expedition in the release of a body in circumstances where a religion stipulates that the burial must take place within a short period of death.

Whilst it was argued by the Coroner that her “cab-rank rule” was necessary to ensure that all bereaved were treated fairly regardless of their religion or beliefs the Administrative Court gave that argument short shrift. The Court held that coroners were required to have a policy that was flexible, so as to respond to a range of potential situations, notwithstanding that the prioritisation of one death may lead to delay for others. The power exercised by the coroner was noted to be analogous to a power derived from statute and the principle against fettering a discretion accordingly applied. By applying a blanket rule which prevented her from taking into account the circumstances of the bereaved including religious belief the Coroner was in breach of that principle. The court concluded that:

The question which then arises is whether the policy is capable of rational justification. On its face, it precludes taking into account representations which have a religious basis and it thereby singles out religious beliefs for exclusion from consideration. There is no good reason for this exclusion. It is discriminatory and incapable of rational justification.

 If, on the other hand, it precludes taking into account any individual circumstances of any kind, whether or not based on a religious faith, there again is no reason for that absolutist stance and so again the policy is incapable of any rational justification.

The policy was also found to be in breach Articles 9 (freedom of thought, conscience and religion) and 14 (protection against discrimination) of the ECHR and to amount to indirect discrimination under the Equality Act 2010, as it discriminated against Jews and Muslims.

Following the judgment in Adath Yisroel Burial Society the Chief Coroner issued a guidance sheet (No.28) in relation to decision making and expedited decisions. That guidance identifies two important legal considerations from the case: (i) that a coroner should be open to representations that a particular case should be treated as a matter of urgency (whether for religious or other reasons); and (ii) that proper respect should be given to representations based on religious belief. It observes however that the decision of the Court in Adath Yisroel Burial Society does not require a coroner to give automatic priority to deaths from particular religious communities, nor does it require coroners to drop other important work to deal with such deaths. The Chief Coroner’s guidance concludes that:

there is no obligation for coroners to adopt formal written policies for dealing with requests for expedition or for dealing with deaths from faith communities. Practices may differ between coronial areas because of the characteristics of the areas. However, any policy or practices adopted by coroners must be sufficiently flexible to allow them to give due consideration to expediting decisions where there is good reason to do so. They should seek to strike a fair balance between the interests of those with a well-founded request for expedition (including on religious grounds) and other families who may be affected

In other words, a coroner must be flexible and take into account all circumstances of a particular case (including religious beliefs) when making decisions in relation to expedition in releasing the body of the deceased. Whilst blanket rules offer the appearance of equal treatment this will only ever be superficial. The practical result of inflexibility will always be discrimination – however unintended.

Alexandra Tampakopoulos

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