The High Court has ruled that a London coroner’s decision not to prioritise the release of bodies for religious reasons is ‘unlawful,irrational and discriminatory’.
Community leaders welcomed the verdict from judges following a judicial review of the “cab-rank rule” policy of Senior Coroner for Inner London, Mary Hassell, after a hearing held at the end of March
Lawyers acting for both a Stamford Hill burial society and an individual claimant challenged the policy, saying it amounted to a breach of the Human Rights Act as well as indirect discrimination under the Equality Act. The challenge brought together all parts of the Jewish community and was backed by a host of MPs across the political spectrum.
There are now calls for Hassell – who told judges that Jewish families were “queue jumping” to the detriment of non-Jews – to consider her position.
In written submissions, she described the “significant negative impact that prioritisation of one sector of the community over others… It is my experience over 12 years as coroner that queue jumping places those who are pushed back further in the queue at a material disadvantage”. She added that all families wanted an early decision from the coroner.
She maintained a “neutral” stance in proceedings, arguing that she had only been interpreting existing legislation and guidance, originally with the blessing of the Chief Coroner, who later criticised her after first describing her policy as “excellent”.
While Hassell represented herself at the Royal Courts of Justice, the claimants – comprising Adath Yisroel Burial Society (AYBS) and 79-year old Ita Cymerman – were represented by three barristers, two of whom were QCs. The Chief Coroner was represented by a Government-appointed barrister.
Reacting to the verdict, Rabbi Asher Gratt, speaking for the AYBS, said: “This legal victory will bring immense relief for grieving families to bury their loved ones with respect and dignity, preventing further unnecessary anguish at the darkest moment of their lives.”
He went on to say “Having twice been found guilty of acting unlawfully it’s high time for Hassell to move on and make way for a compassionate coronial service.”
Chief Rabbi Ephraim Mirvis reacted to the verdict, by saying: ““This judgement holds within it an essential message about British values. When we talk about freedom and respect for people of all backgrounds, when we say that Britain values diversity and equality – this is what we mean. As Lord Justice Singh says in his judgement, “uniformity is not the same thing as equality” – indeed our capacity for treasuring difference is what makes this country great. I commend all those who have tirelessly campaigned for a resolution to this matter and in particular the Adath Yisroel Burial Society, who brought the Judicial Review.”
Board vice-president Marie van der Zyl said Hassell “must now consider her position… If she cannot carry out this basic function of her role, she must vacate her position”.
Levi Shapiro of the Stamford Hill umbrella group Jewish Community Council (JCC) agreed. He said: “After months of pain and anguish, a spark of light lit up this morning for the wider Jewish community and beyond.”
He added that the matter had caused “distress and pain for people wishing to bury their loved ones,” saying: “It would only be appropriate now for Ms Hassell to consider her position after consistently embarrassing herself with her treatment and attitude towards the Jewish community.”
After considering the evidence, the judges ruled in favour of the claimants, who had opposed the nature of Hassell’s “blanket rule” that does not take into account the circumstances of the family and their religion.
However, the judges refused to blame Hassell, saying she “did not recognise that impact as discriminatory as a matter of law”.
Yet they did recognise that “for certain faith groups… it is very important that a funeral take place as soon as possible, ideally on the day of death itself”.
Giving evidence, Dayan Shulem Friedman said the principle was “so important to Jewish people that it is quite common for a close relative, such as a child of the deceased, to miss the funeral of their parent if, for example, they are abroad when their parent dies”.
Considering the policy’s impact, the judges noted a statement from Board of Deputies president Jonathan Arkush, who said: “I can recall few communal issues which have arisen during my nine years as president and vice-president of the Board which have caused such widespread alarm and distress.”
The judges agreed that “there should be no rule of automatic priority for those seeking expedition on religious grounds,” but agreed that Hassell’s rule was “over-rigid” in that it precludes her taking account of individual circumstances.
They added: “Where a single rule has disparate impact on one group as opposed to another – it is the disparate impact that has to be justified. What must be justified is the failure to make a different rule for those adversely affected.”
The Chief Coroner had said he agreed with the claimants and that Hassell’s policy was unlawful because it “imposes a fixed rule that coroners may never treat a task as urgent in order to satisfy the strongly-held and sincere desire of the family to have the body released quickly on religious grounds”.
In an October 2017 letter to solicitors acting for the burial society, Hassell said “no death will be prioritised in any way over any other because of the religion of the deceased or family”.
London MPs including former Keir Starmer, a former Director of Public Prosecutions and head of the Crown Prosecution Service, took issue with that stance, asking for flexibility, but Hassell said her policy was in-line with human rights laws.
She also said she was acting in-line with guidance issued by the Chief Coroner in 2014, which stated that “the law does not allow any coroner to give priority to any one person over another”.
However the Chief Coroner, Mark Lucraft QC, said Hassell’s rule was “over-rigid,” discriminatory” and “not capable of rational justification”. The powers of his office do not allow him to dismiss senior coroners, who can only be sacked by the Lord Chancellor, David Gauke MP.
The burial society argued that Hassell should operate a system of “triaging” deaths, but she said such a system would require resources she did not have, and would anyway cause delays, diverting coroners from their substantive work.
During the proceedings, Hassell argued that “in practice she does not apply the policy as rigidly as might appear,” but the High Court judges said in their verdict that Hassell had not stipulated that her policy was to be applied flexibly, meaning that they had to rule on “what [the policy] says on its face”.
During proceedings, Hassell took issue with Lucraft’s U-turn following communal pressure, releasing documents showing how he first felt her policy should be rolled out to other coroner jurisdictions across the country, so that “no sector of the community is prioritised, none is put ahead at the expense of others”.
Trevor Asserson, whose law firm acted for the AYBS, said “the court found against Hassell on every count, except for finding that she had considered the impact of her protocol on Jews and Muslims. This was to damn with faint praise.”
Labour leader Jeremy Corbyn said: “The High Court ruling that the ‘cab rank’ approach is unlawful, irrational and discriminatory is very welcome and will be a huge relief to the Jewish and Muslim communities who have suffered significant and unnecessary anxiety. It was completely unacceptable for the coroner to put barriers in the way of families trying to lay their loved ones to rest, and this policy must now be scrapped.”
London Mayor Sadiq Khan said: “I welcome this decision by the High Court. It is right and proper that the coroner respects the religious sensitivities of Londoners.” He added that it was “crucial that a plan is now drawn up as soon as possible as to how this will be implemented in the Inner North London area”.