R(Gallaher) v Competition and Markets Authority and the Search for the Principle of Equal Treatment
In Adath Yisroel Burial Society v HM Senior Coroner for Inner North London  EWHC 969 (Admin), the First Claimant was a charitable organisation responsible for managing and facilitating the burials of a large proportion of the orthodox Jewish population in Inner North London. The Second Claimant was a 79 year old orthodox Jewish woman who lives within the administrative area of the Senior Coroner for Inner North London (the Defendant). The Defendant was the Senior Coroner for Inner North London.
The judicial review claim challenged the lawfulness of a protocol developed by the Defendant which said: “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”.
Within both Jewish and Muslim faiths, great importance is placed on burial as soon as possible after death. The Court was furnished with evidence, which it accepted, that substantiated this assertion and showed that in some cases burials would take place without the attendance of close family members to ensure the body was buried as soon as possible.
The Defendant was concerned that Jewish families represented by the First Claimant were being prioritised on the basis of their religion. She also believed, mistakenly as Lord Justice Singh set out in his judgement of the Court, that she was not allowed by law to prioritise any family on the grounds of their faith. The Court accepted that prioritisation would put other families at a material disadvantage. However, the Court took issue with the rigidness of the language contained in the Defendant’s protocol, which, on an ordinary reading, absolutely precluded prioritisation of any kind on religious grounds.
Whilst the Defendant stated that the protocol was to be applied flexibly, arguing that cases where the deceased was an organ donor or where a homicide investigation was underway would inevitably be given primacy, the Court found that if this was the case the Coroner should have explicitly written so.
The Court had before it a number of issues, most notably whether the protocol breached Article 9 ECHR (freedom of religion), whether her protocol was itself capable of rational justification and whether the protocol fettered her discretion.
On its face, the Defendant’s protocol forbids the consideration of representations which have a religious basis. The Court found that the complete exclusion of religious reasons for seeking expedition was irrational and unjustified, and that a Coroner can prioritise cases based on religious reasons, even where that prioritisation may disadvantage others. As a result, the protocol was found to be discriminatory and incapable of rational justification.
The Court accepted that the policy adopted by the Defendant interfered with an individual’s right to manifest their religion. Subsequently, the question became whether this was a proportionate limitation of an individual’s Article 9 rights. The Court concluded that the Defendant’s protocol does not strike a fair balance between the rights of the individual and the interests of the community. It, instead, required the Defendant and her officers to disregard all considerations surrounding the requirements of Jewish and Muslim people, leaving the protocol disproportionate.
The Court found that whilst the Coroner has the power to implement a prioritisation policy, that policy must be flexible and enable all relevant considerations to be taken into account. The Court, and the Claimants, accepted that there should be no rule for automatic priority for those seeking expedition on religious grounds but concluded that any policy must be flexible enough to accommodate the range of possible situations and pressures a Coroner could face.
In any particular individual case, the Court clarified that, where all relevant matters are considered, a coroner’s decision would be subject to a ‘margin of judgement.’ The Court would not second guess the decision because his or her decision was unfavourable to a particular family or group. Rather, as stated by the court, “anyone seeking to challenge a decision of the Coroner on grounds that the Coroner had breached Convention rights will have to demonstrate that a Coroner has exceeded the margin of judgement which is afforded to him or her by law”. This re-emphasises the difficulties applicants face in attempting to judicially review individual decisions taken by Coroners.
The Court granted a declaration that the Defendant’s protocol was unlawful; and issued a quashing order against it.
Skip to content Home About Us Insights Services Contact Accessibility