Richard III reburial: judicial review application fails

The Divisional Court of Queen’s Bench has handed down its judgment in the judicial review proceedings on the proposed reburial in Leicester Cathedral of the remains of Richard III.

In R (Plantagenet Alliance Ltd) v Secretary of State for Justice [2014] EWHC 1662 the claimant challenged the following:

  1. the Secretary of State for Justice’s decision of 3 September 2012 to grant a Licence to exhume the remains “without consulting, or attaching conditions requiring the licensee to consult, as to how [or where] the remains of Richard III should be appropriately  re-interred in the event that they were found”;
  2. the Secretary of State’s decision from 4 February 2013 onwards “not to revisit the grant of the Licence once it became clear that the University would not carry out an appropriate consultation”;
  3. Leicester City Council’s decision in February 2013 “either to begin making arrangements for the re-interment of the remains of Richard III at Leicester Cathedral or to accede to University’s arrangements in that regard”; and
  4. Leicester University’s decision on 4 February 2013 “to begin making arrangements for the re-interment of the remains of Richard III at Leicester Cathedral” [para 75].

The Plantagenet Alliance argued that there should have been a public consultation and/or investigation as to the appropriate place for Richard III’s re-interment, either through the appointment of a panel of suitably qualified experts or through a public consultation and that the King’s identifiable living relatives should have had an opportunity to have their views considered:

“It was submitted that this duty arose from the Secretary of State’s settled practice of seeking to obtain appropriate consent from relatives to the exhumation of identifiable remains, or from the unique circumstances of this case. Without such investigation and or consultation the Secretary of State had failed to ensure he was properly informed of all the relevant facts. The Claimant’s Grounds also asserted that Leicester Cathedral was not the most appropriate place for re-interment, but did not assert that the decision was irrational” [para 76].

The Divisional Court [Hallett LJ, Ouseley and Haddon-Cave JJ] rejected the claim. The original proposal to re-inter the remains in Leicester Cathedral had not been irrational; moreover, the fact that some sort of consultation or further inquiries might have been possible or desirable did not mean that no reasonable or rational decision-maker could have been satisfied on the basis of the information already to hand [para 145]. There was no significant new factor of which the Secretary of State would have been unaware and none emerged during the hearing [para 146]. In public law terms, therefore, the Secretary of State had not behaved unreasonably or irrationally when deciding not to revisit the exhumation licence in the light of the information which he already had [para 148]. Nor was there any duty on him to consult [para 159].

As to the claim against the University, it had not been exercising a public function at any stage in relation to the exhumation, retention and re-interment of the remains and was under no public law duty to consult [para 162]. As to the claim against the City Council, its intervention as the “legal sentinel” of Richard III’s bones had been “unnecessary, unhelpful and misconceived” and it, too had no legal duty to consult nor power to intervene once the licence had been granted and the remains removed from its land. It had not been necessary for the Council to be joined as a defendant to the proceedings and the claim against the Council failed also [para 164].

In conclusion, there were no public law grounds on which to interfere with the decisions in question and the application for judicial review was dismissed.

7 thoughts on “Richard III reburial: judicial review application fails

  1. Whilst there was no public law grounds to interfere could identifiable living relatives raised a private law complaint? One local government website states, “When the Registered Grave Owner dies, the title of the grave passes to the executors or administrator of their estate. If no executor or administrator has been appointed the title passes to his or her next of kin.”

    It is the human remains in a grave that merit protection. Surely a grave is a grave is a grave?

  2. I’m not sure that there was a “Registered Grave Owner” in this case: Richard III’s remains were found in a car-park and (presumably) title was held by the owners of the car-park. And does the expression “next of kin” have any real meaning in relation to someone who died in 1485?

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  5. Point taken. Apologies for not making it clear. My “Surely a grave is a grave is a grave?” was meant to question whether a “Registered Grave Owner” was a relevant consideration. Does a descendant have any private law right to have a say in what happens when the remains of an ancestor are disturbed and/or moved?

    • Where an interment is in the consecrated ground of the Church of England, the consistory courts (i.e. the CofE courts), will take cognizance of the wishes of close relatives, although there is a general presumption against moving the remains of the departed. However, from the consistory court judgements reported in this blog and elsewhere, it is clear that this does occur: for example, where there was an error relating to the original burial, or on compassionate grounds taking account of the circumstances of the relatives.

      However, Richard III was not buried on consecrated ground, and so his exhumation (and conditions for reburial) falls within the remit of the Ministry of Justice, and judicial review is the appropriate route for individuals/relatives/groups to challenge to the way in which a decision has been made, rather than the rights and wrongs of the conclusion reached. In the case of Richard III, the reason why the judge permitted the Plantagenet Alliance to challenge the MoJ decision was because of the broad public interest that had been expresses, rather than their tenuous links to RIII which Lady Justice Hallett of which said “[the] relationship of Mr Nicolay and the other collateral relatives to their ancestor, Richard III, is, on any view, attenuated in terms of time and lineage”, i.e. quite flaky.

      Normally, when an application to exhume and reinter a body is made to the Ministry of Justice, there are a number of factors which it takes into consideration before issuing a licence including the owners of the grave and the next of kin.

      Another possibility is where there the burial is located along the route of a new major infrastructure project, e.g. HS2, where the legislation associated with the project takes precedence over ecclesiastical law, the Burial Act 1857 &c. However, it also requires that known relatives of any remains that are to be removed must be contacted. It is unlikely that they could prevent the exhumation, but could indicate a preference (with reason) as to the location of the re-interment.

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