Notwithstanding last week’s victory, the battle with Coroner Hassell seems far from over.
It started almost as soon as she took office five years ago, when she unilaterally withdrew an out-of-hours service.
It has continued through three cases — two taken to final judgment — and a disciplinary tribunal. Hassell has lost all of them but is still fighting.
Hassell has created trouble broadly in two ways: by ordering invasive autopsies, which desecrate the body, and by causing delay to the burial. For Jews and Muslims, desecration and delayed burial cause huge anguish.
Hassell has been inflexible.
I first came across Hassell when members of the Jewish community turned to me in 2014, to seek to stop an invasive autopsy she had ordered which was entirely unnecessary.
An injunction was obtained to prevent the autopsy. The court found that where “there is nothing to be lost and something to be preserved, namely the rights in respect to the religion of the family”, the coroner should allow non-invasive autopsy.
In 2015, Hassell tried to force another unnecessary invasive autopsy on the body of a Jewish woman, despite the court’s clear earlier ruling. Following an injunction and judicial review, which included a full trial, the court found her decision to be unlawful.
To most, it would seem obvious to allow a non-invasive autopsy where possible, and compassion would demand such a conclusion in any event. Not so for Hassell.
In late 2017, Hassell, beaten over autopsies, decided to devise new methods for causing distress. Most coroners offer an out-of-hours service. Hassell, by withdrawing an out-of-hours service when she took up her post, caused significant delay to anyone who has passed away between Friday and Monday. But this, it seemed, was not enough.
In response to attempts by my firm to speed up her decision-making process in the case of a Jewish man who had died in October 2017, she issued a “protocol” which declared: “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.” Hassell’s protocol — described by her as a cab-rank rule — denied priority to all Jews and Muslims, thus causing undue and unnecessary delay during the week as well as at weekends.
In a misguided wish to equate uniformity with equality, Hassell had formed a view that treating everyone in chronological order was fair. The court’s ruling last Friday strongly disapproved of Hassell’s protocol. The law requires officials “to treat differently persons whose situations are significantly different”.
For example, a vegetarian prisoner is treated the same as others if given meat to eat, but the effect is different. He will starve, while others can eat well. Recognising and dealing with this lies at the heart of a pluralist society.
The judge held that “where a single rule has disparate impact on one group as opposed to another — it is the disparate impact that has to be justified”. Hassell’s protocol was found unjustifiable, but it has taken huge effort and a full trial to get it scrapped.
No sooner was the judgment published, however, than Hassell issued a new protocol that “in future… [she] will consider every family for prioritisation”.
Given her history, it is difficult to read into this any genuine desire to get the law right, let alone to be compassionate towards Jews and Muslims or others seeking speedy burial.
It raises a concern that it is a new strategy to prioritise everyone, and thereby thwart the effect of the judgment.
After three defeats in court describing her variously as “unlawful, rigid, flawed, discriminatory, and irrational,” and one disciplinary finding that she has a “serious lack of judgment”, some coroners might pause for thought.
But Hassell seems driven by some unspoken agenda. While I would like to think that the High Court victory was decisive, I fear that, with her latest intention to consider everyone for prioritisation, battle potentially remains joined.
Trevor Asserson is senior partner of Asserson Law Offices, based in London and Tel Aviv, and solicitors for the claimants