Richard III, reburial and judicial review

We have commented regularly on the developing saga of the exhumation and reburial of Richard III, most recently here. In the round-up for 11 August we also questioned the locus of the Plantagenet Alliance, “the living, collateral descendants of King Richard III, to seek judicial review of the decisions of the Ministry of Justice and the University of Leicester in relation to reburial, suggesting that if Article 8 ECHR (private and family life) was not engaged in the case of a first cousin once removed (for which see R (Rudewicz) v Secretary of State for Justice & Ors [2012] EWCA Civ 499) it was difficult to see how it could  be engaged in the case of descendants of someone who died in 1485.

As it turns out, we were wrong. In a judgment handed down yesterday, Haddon-Cave J has granted the Plantagenet Alliance permission to bring judicial review proceedings against the Secretary of State for Justice and the University of Leicester on all grounds: see R (Plantagenet Alliance Ltd) v Secretary of State for Justice & Anor [2013] EWCA (Admin) (15 August).

His Lordship held that the merits of the claimant’s challenge were clearly arguable [para 17]. As to the Article 8 issue:

“… the Claimant’s claim includes an argument based on Article 8 of the ECHR (‘family life’). In the absence of a close personal or even close familial relationship, it is normally difficult to see how Article 8 rights can be directly engaged (see R (Rudewicz) v Secretary of State for Justice … at paragraph [30]). It is clear from European jurisprudence, however, that the views of a deceased person as to his funeral arrangements must now be taken into account (per Cranston J in R (Burrows) v. HM Coroner for Preston [2008] EWHC 1387 (Admin)). For this reason, and in view of the unusual circumstances of this claim by traceable descendants of a famous Royal figure, it may be said that Article 8 has some role to play” [para 33].

As to standing, he was

“… 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” [para 15].

As to what will happen at the substantive hearing, who knows? As Obiter J points out, however, the judgment ends [paras 40 & 41] with an appeal for moderation and common sense in which His Lordship urges the parties

“… to avoid embarking on the (legal) Wars of the Roses Part 2. In my view, it would be unseemly, undignified and unedifying to have a legal tussle over these royal remains. This would not be appropriate, or in the country’s interests. The discovery of Richard III’s remains engages interests beyond those of the immediate parties, and touches on Sovereign, State and Church.

For these reasons, I would strongly recommend that parties immediately consider referring the fundamental question – as to where and how Richard III is reburied – to an independent advisory panel made up of suitable experts and Privy Councillors, who can consult and receive representations from all interested parties and make suitable recommendations with reasonable speed”.

Frank Cranmer and David Pocklington