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Hassell ruling is legal milestone

Leading lawyer John Bowers QC argues that the High Court ruling against Mary Hassell has major implications

    The case of R (ota) Adath Yisroel Burial Society v HM Senior Coroner for Inner London North Coroner is a legal milestone and has major implications beyond the facts of the case. It affects the Muslim as well as Jewish community.

    The High Court had to consider an application from the orthodox Jewish burial society which took issue with the policy of the North Inner London Coroner which was not to prioritise deaths from the Jewish and Islamic communities. Both of course seek to bury their dead soon after their death.

    Ms Hassell, the Coroner, was in effect operating a “Cab rank” rule and taking deaths in chronological sequence. The only prioritisation she would allow was for cases of homicide and organ donations. The Coroner’s policy excluded prioritisation of deaths at any stage of coronial process including the early release of bodies; she described it in her evidence as “queue jumping”.

    It is unusual for a court to interfere with the decisions of a Coroner and without precedent for a policy like this to be struck down.

    The first ground on which Singh LJ and Whipple J in the Divisional Court found the policy objectionable was that it was over rigid and risked fettering the discretion as to when to bury and it also failed on the public law irrationality ground (which is usually difficult to establish).

    Most interesting however was the court’s treatment of the claim by the Society in reliance on Article 9 of the European Convention of Human Rights, the right to freedom of religion, thought and conscience.

    The Divisional Court pointed out that the third right protected (beyond freedom of thought and the right to change religion which are absolute rights) that is the right to manifest religion was subject to limitations. The judges reiterated the guidance given in R (BBC) v Secretary of State for Justice that “The jurisprudence of the ECHR has frequently stressed that the hallmarks of a democratic society are pluralism, tolerance and broadmindedness” (para 96). A balancing exercise was required and the judges said that the “policy does not strike a fair balance between the rights concerned at all”. Instead a rigid policy had been adopted by the Coroner.

    The Coroner suggested in response that the policy was equal across the board and therefore fair and equitable; the court responded “to treat everyone in the same way is not necessarily to treat them equally; uniformity is not the same thing as equality” (para 111).

    The judges also pointed out that “coroners in other areas do not adopt the strict policy which the Defendant has adopted for her area and this does not seem to cause undue difficulties” (para 123).

    Importantly, the court decided that the “coroner cannot exclude religious reasons for seeking expedition of decisions by coroner” (para 123). The court quashed the policy although it did not uphold the claim under the public sector equality duty.

    Somewhat unusually the Coroner asked the court to give guidance about what a lawful policy might look like. To use a well-worn legal expression, the court thought this was something of a chutzpah, but did state that the “Coroner cannot lawfully exclude religious reasons for seeking expedition of decisions by that Coroner” which is highly significant.

    Although resources might be relevant in drawing up the policy, “limitations on resources does not justify discrimination”. On the other hand it would be wrong for a Coroner to impose an automatic priority for cases where there are religious reasons for seeking expedition.

    There was also no encouragement for further individual claims to be brought. The court would be unlikely to entertain claims in individual cases as it would be subject to a “margin of judgment” for the coroner.

    The three key features of the case are

    a. The court was prepared to overturn a policy that was too rigid and to view it as irrational;

    b. A cab rank which appeared to treat everyone equally was seen to boomerang against the two religious communities which needed to bury early;

    c. Individual claims are discouraged.

    This is unlikely however to be the final chapter in this story.

    John Bowers QC is Principal of Brasenose College, Oxford