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The Chief Coroner publishes updated guidance following High Court ruling declaring 'cab rank' burial policy unlawful

11 June 2018
On 17 May 2018 Chief Coroner, HH Judge Mark Lucraft QC, published Guidance Note No. 28 addressing how Coroner's should deal with requests for them to make expedited decisions.

On 17 May 2018 Chief Coroner, HH Judge Mark Lucraft QC, published Guidance Note No. 28 addressing how Coroner's should deal with requests for them to make expedited decisions.  The publication comes shortly after the High Court's ruling in R (AYBS & another) –v- HM Senior Coroner for Inner North London [2018] EWHC 969 (Admin) that the 'cab rank' burial policy adopted by one of London's Senior Coroners was unlawful.

On 27 – 28 March 2018 the High Court presided over a Judicial Review seeking to challenge a policy adopted by HM Senior Coroner, Mary Hassell, on the grounds that it was a fettering of discretion, irrational, in breach of Articles 9 and 14 of ECHR and represented indirect discrimination under S.29 Equalities Act 2010.

In her capacity as Senior Coroner, Mary Hassell had devised a five point protocol which she claimed would ensure the loved ones of the bereaved would be treated fairly and the limited resources available to the Coroners would be put to best use. Point five of her protocol stated:

"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".

The Senior Coroner had previously come into conflict with Adath Yisroel Burial Society ("AYBS"), a Jewish funeral organiser, with regard to a dispute between the Coroner's office and the family of an Orthodox Jewish man who had died in October 2017.  ABYS expressed dissatisfaction that there were 'unnecessary bureaucratic delays' in releasing bodies for burial which were inconsistent with the religious beliefs of some members of society.  The average time between death and burial or cremation in England and Wales is 15 days and the new policy lead to great concern that people would be forced by public officials to break their deeply held religious beliefs and practices with regard to expeditious burial.

On hearing the submissions of the parties, the Justices held that the Senior Coroner had acted unlawfully in excluding religion as a reason for seeking an expedited decision of whether a body should be released for burial. They stated that it should not be the position that all cases have to be treated in the same way or in strict chronological order; Each Coroner is entitled to prioritise cases, whether that be for religious reasons or otherwise. To rule out consideration of religious reasons was irrational and discriminatory. They noted that, in principle, the Senior Coroner is entitled to implement a policy to assess circumstances in which priority will or may be given as long as the policy is flexible and enables all relevant considerations to be taken into account. However, such a policy should not go as far as imposing an automatic priority for cases where there are religious reasons for seeking expedition.

The Justices added an important rider to their decision. They stated any decision made by a Coroner will be subject to a 'margin of judgement' and that decisions will not be challenged just because a family disagrees. For a person to challenge a decision they would have to demonstrate that a Coroner has exceeded the 'margin of judgement'.

The Justices declared the policy adopted by the Senior Coroner was unlawful and it was therefore quashed.

Following the Justices' decision, HH Judge Mark Lucraft QC, the Chief Coroner for England and Wales, published new guidance to clarify the position. Within that guidance he emphasises the importance of Coroners paying appropriate respect to the wishes of bereaved families whilst acting within the framework of their legal duties and other responsibilities. He noted that they should be open to representations that a case be treated as a matter of urgency and should pay proper respect to representations based on religious beliefs. Such considerations should not be ruled out by a Coroner for resource limitation reasons.

The outcome of the Judicial Review and the new guidance will come as welcome news to many faith groups and families.

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