In February we reported that Adath Yisroel Burial Society was seeking judicial review of the policy of HM Senior Coroner for Inner North London in applying a “cab rank” rule to burials and refusing to prioritise Jewish and Muslim burials. In R (Adath Yisroel Burial Society & Anor) v HM Senior Coroner for Inner North London [2018] EWHC 969, a Divisional Court (Singh LJ and Whipple J) has held the rule to be illegal.

The Claimants challenged the lawfulness of the policy adopted by the Senior Coroner for Inner North London, Ms Mary Hassell, on 30 October 2017 that “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” – described variously by Ms Hassell as a “cab rank rule” and “an equality protocol” [2].

The Claimants challenged the rule on the grounds that it breached Article 9 ECHR) (thought, conscience and religion) and Article 14 (discrimination) read with Article 9, that it was indirect discrimination contrary to s.19 of the Equality Act 2010 and that it breached the public sector equality duty (“PSED”) in s.149 of the Equality Act. The Chief Coroner, who was joined to the proceedings as an Interested Party, submitted that, as a matter of public law and quite apart from the Human Rights Act 1998, the policy was unlawful because it fettered Ms Hassell’s discretion and was irrational [11].

The legal framework and procedure

The legal framework in relation to Coroners’ Investigations is set out in detail – helpfully – at [22] to [44]. In brief:

if a death is notified to the Coroner’s Office, the notification and associated papers will first be considered by a Coroner’s officer, who will prepare a short report for the Coroner to consider the case. The process of preparing that report may involve some enquiries being made by telephone to discover more about the death or the deceased person [37]. A Coroner will then review the officer’s report and the file to decide what steps should be taken. If he or she decides (either at the outset or after some enquiries) that no further investigation is needed he or she will complete a Form 100A, giving notice of the intention not to proceed further and so facilitating the registration of the death [38]. If the Coroner decides that a post-mortem examination (“PME”) is required, either to determine whether to commence an investigation or to decide whether to continue an investigation which has been commenced, it will be arranged by the Coroner’s officer with a pathologist [39].

If the PME allows the cause of death to be established such that further investigation is not required, the Coroner will complete a Form 100B, which will enable the death to be registered. The body will usually be released to the family for burial or cremation either after a Coroner has decided that a PME is unnecessary or after a PME has been performed and the pathologist does not require the body any longer. A certificate allowing disposal of a body by burial can then be issued by the Registrar under the Births and Deaths Registration Act 1926 [42].

The contested policy

Ms Hassell explained her policy in her Detailed Grounds submitted to the Court. Her particular concern was that Jewish families represented were being prioritised over other families by her coroner’s officers. As she explained in paragraph 8 of her Detailed Grounds, this was a practice she wished to stop:

“8. My team and I have a statutory duty to perform and within its structure we try to help families. We endeavour to accommodate each one. However, what I have described to the [First] Claimant in person and in writing, is the significant negative impact that prioritisation of one sector of the community above others has had upon the families of those other deceased. It is my experience over twelve years as coroner that queue jumping places those who are pushed back further in the queue at a material disadvantage” [50].

Further, while some families accepted a delay to the time of the funeral, “what causes most distress for all families is a delay in decision making and notification of that decision”: families wanted quick decisions about whether there were further enquiries to be made, whether there had to be a PME or whether quick release for the funeral was possible [51]. She argued that her policy took account of Articles 9, 14 and 8 ECHR and the relevant sections of the Equality Act [52] and noted that the guidance of the then Chief Coroner, HHJ Peter Thornton QC) on 1 May 2014 had stated that “The law does not allow the Coroner to give priority to any one person over another” [53].

The judgment

As to the issue of fettering her discretion, the Court concluded that the power being exercised by the Coroner in the present case was akin to a power derived from statute. The principle against fettering a discretion therefore applied [86] and the policy as promulgated by Ms Hassell on 30 October 2017 breached that principle:

“As both the Claimants and the Interested Party have submitted to this Court, the policy as formulated imposes a blanket rule that, in taking those decisions, the Coroner will not take into account the circumstances of any individual family where they have a religious basis. As formulated the policy would prevent the Coroner taking into account a relevant consideration, contrary to the above principles of law. This would be so even where there would be limited – or even no – effect on her other work” [87].

If, as stated in Ms Hassell’s Addendum to her Detailed Grounds, her position was that she would not expedite the handling of any one death over another for any reason particular to the deceased or his/her family (even where that reason was not based on a religious faith),

“then the defect in the policy remains. It is still over-rigid in that it would preclude the Defendant from taking any account of the individual circumstances of a particular case at all” [88].

As to the issue of irrationality, Ms Hassell accepted that some cases had to be given priority: for example, deaths which were the subject of homicide investigations, and organ donations – so, on her own admission, the policy was not, in truth, a “cab rank” policy because not every case was in fact dealt with by her office in strict chronological order [90-91]. On the face of it, the policy precluded taking into account representations which had a religious basis and thereby singled out religious beliefs for exclusion from consideration. There was no good reason for that exclusion: it was discriminatory and incapable of rational justification [91]. If, on the other hand, it precluded taking account of any individual circumstances of any kind, whether or not based on a religious faith, it was again incapable of any rational justification [92].

As to whether or not the policy complied with Article 9 ECHR:

“It is not necessary in this case to consider each of the four proportionality questions separately and in turn. The fundamental difficulty with the Defendant’s policy is that it does not strike a fair balance between the rights concerned at all. Rather, as a matter of rigid policy, it requires the Coroner and her officers to leave out of account altogether the requirements of Jewish and Muslim people in relation to early consideration of and early release of bodies of their loved ones” [103].

Sometimes there will be good reason why a Coroner or his/her officers are not able to turn a case around as quickly as members of the family would wish, even if they rely upon their religious beliefs to make a case for expedition. There may well be other demands on the Coroner or her officers. There may be other cases which are more urgent. They may not have anything to do with a person’s religious beliefs, for example if a homicide investigation needs to be facilitated as quickly as possible or there is a need for an organ donation [104].

However, these issues of prioritisation are not unique to the present context. For example, any court which has to consider the listing of cases may need to grant expedition for some cases for good reason. If an issue will become academic unless the Court hears it quickly or if the case concerns the interests of a young child, it may well warrant expedition. This will inevitably have an adverse effect on other cases which are waiting in the list but which are not so urgent. Similarly, in a hospital accident and emergency department, some patients will require urgent treatment, which will mean that others may have to wait longer. In one sense, it could be said that a strict “cab rank” is not being complied with. However, we anticipate that reasonable people in society would not regard that as ‘queue jumping’ or otherwise unfair [105].

Moreover:

“… we would stress that section 158 [of the Equality Act 2010] does not concern what is sometimes called ‘positive discrimination’; it is more limited and concerns only what the legislation calls ‘positive action’. In general ‘positive discrimination’ is unlawful under the Equality Act. Therefore, as a matter of domestic law, prioritisation of some deaths for religious reasons would not be unlawful; to the contrary, it would be consistent with section 158” [109].

As to Article 14 ECHR, it was put to the Court that a “bright line” rule was needed so that the policy was easy to understand and administer. The Court did not underestimate the importance of clarity in the policy, not least because it had to be applied on a day to day basis, often under difficult circumstances [122]. But it was not persuaded that that was sufficient justification for the discrimination involved. Even on Ms Hassell’s own submission, she relaxed her policy if, for example, an organ donation was at issue.  Nor did Coroners in other areas operate the same the strict policy and that did not seem to cause undue difficulties [123]. Nor could the policy be justified by an argument from limited  resources [124]. Therefore, the policy violated the principle of equal treatment in Article 14 [125].

As to the claim of indirect discrimination, the Court was of the view that the Second Claimant, Mrs Ita Cymerman, was entitled to compare her position with the hypothetical comparator of a person who did not share her religious beliefs. That person would be able to comply with the strict requirements of her faith in a way which Mrs Cymerman could not do.That fact put B at a “particular disadvantage when compared with persons with whom B does not share” the protected characteristic.[140]

As to the claim of breach of the Public Sector Equality Duty under s.149 of the Equality Act 2010, however,  it was very clear from the various materials submitted by Ms Hassell that she had been acutely aware of the impact her policy might have on certain minority religious communities within her area, even if she did not recognise that impact as discriminatory as a matter of law. Specifically, she had stated that she had been especially aware of the impact Adath Yisroel: she was very aware of their religious wish for early burial and did not act immediately: “I considered the matter for a further week, and then I settled upon the conclusion that I had been moving towards for several months”. The Court therefore concluded that she had had “due regard” to her public sector equality duty, and that ground of challenge failed [150-151].

In brief:

“We can pull together the legal threads of our judgment in the following way:

(1) A Coroner cannot lawfully exclude religious reasons for seeking expedition of decisions by that Coroner, including the Coroner’s decision whether to release a body for burial.

(2) A Coroner is entitled to prioritise cases, for religious or other reasons, even where the consequence of prioritising one or some cases may be that other cases will have to wait longer for a decision. It is not necessary that all cases are treated in the same way or in strictly chronological sequence.

(3) Whether to accord one case priority over another or others is for the Coroner to determine. The following further points apply:

a) It is in principle acceptable for the Coroner to implement a policy to address the circumstances when priority will or may be given, so long as that policy is flexible and enables all relevant considerations to be taken into account.

b) The availability of resources may be a relevant consideration in drawing up that policy or in making the decision in any individual case but limitations on resources does not justify discrimination.

(4) It would be wrong for a Coroner to impose a rule of automatic priority for cases where there are religious reasons for seeking expedition” [160].

For the reasons given, the claim for judicial review succeeded on all grounds apart from that based on the Public Sector Equality Duty [163]. The Court granted a declaration that the current policy was unlawful and issued a quashing order setting it aside [164].