This is an unhappy case all round. The silver lining is that the Divisional Court went out of its way to facilitate some public education about that most fundamental and cherished of rights, the principle of equality. Anyone wanting a crash course in: absolute and qualified rights, justification, indirect discrimination and proportionality and the PSED (the public sector equality duty) should head straight to paragraphs 93 to 143 and make an entry on their CPD form. But the take away point is this:
People are different. Treating them equally does not mean treating them the same.
The specific issue was whether the Coroner could and should fast track the administration of deaths of Jewish people or whether religion should be left out of account altogether, so that each death, and family, should await their turn in the coronial queue.
The Divisional Court decided that specific point (in appropriate cases they can and should) and then explained what equality means. We suffer discrimination not only when we are treated differently to someone in an analogous situation but also when, being different, we are not treated differently. We are not all the same, one size does not fit all and if we are to be treated equally, a balance must always be struck.
The policy
The average time from death to burial is said to be around 15 days. Many accept and welcome that interval because it allows family members to travel for the funeral. But Jews and Muslims have a religious obligation to bury their dead as soon as possible and ideally, on the day of death.
The previous Chief Coroner had issued guidance which stated that:
“It is important to state that all Coroners in England and Wales are obliged to act within the scope of the current law which must be applied equally and consistently for all. The law does not allow the Coroner to give priority to any one person over another…”
The Senior Coroner for Inner London North had a large number of members of the Jewish faith in her area. She was under pressure to meet the need of that faith community for same day release of the body. She decided to formulate a policy concerning the administration of deaths reported to her office and she took the Chief Coroner’s guidance into account when doing so. She thought that the guidance she formulated had his support and her intention, when writing it, was to ensure fairness for all and the best use of what she told the Court were the inadequate resources at her disposal. Her policy (“the policy”) said this:
“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 lawfulness of the policy was challenged by way of judicial review by two Claimants, a charitable organisation responsible for managing and facilitating the burials of a large proportion of the Jewish population in the Coroner’s area and an orthodox Jewish woman. They argued that because it left the religious imperative to proceed to burial within 24 hours of death out of account, the policy breached the ECHR and the Equality Act 2010.
The Chief Coroner was brought into the action as an interested party by order of the Court. In addition to the Claimants’ arguments, he contended that the policy was, as a matter of public law, irrational and unlawful in that it was over-rigid since it required the Coroner to fetter her discretion to take expedite deaths where there was a particular need to do so.
The Divisional Court agreed with the Claimants and the Chief Coroner.
ThepProcess
Once a death has been notified to a Coroner, enquiries must be made to determine whether the statutory criteria for opening an investigation are met. Usually a Coroner’s officer will gather information about the death and prepare a short report for the Coroner who will then review the case and decide what further steps should be taken.
Where no further investigation is needed and it is clear the cause of death was natural, the coroner completes Form 100A. That allows the death to be registered and the body to be released. Where the cause of death is unclear, other investigations including, possibly, a post-mortem examination may be needed before a cause of death can be ascertained and, where natural, registration can take place.
A busy Coroner’s Office will have a number of competing demands on its time: dealing with deaths just reported, conducting existing investigations, managing and hearing inquests and the other work associated the management of the office more generally.
At the same time and understandably, many families wish to find out as soon as possible whether there is going to be an inquest and if there isn’t, when the body can be released. Families with a religious obligation to bury the body the same day if possible have a pressing need to know immediately.
The problem
In Inner North London there was a “pinch point” in the Coroner’s office. That pinch point came not when the Coroner scrutinised the report into the death, but at the stage before when the Coroner’s officers were preparing reports into newly notified the deaths for the Coroner to consider.
The Senior Coroner came under some pressure from the Jewish community to prioritise Jewish deaths. It was in response to that pressure that she formulated the policy which was the subject of the judicial review. She observed that if those with a religious need to bury their dead quickly were allowed to jump the queue then others would be pushed back and disadvantaged. She felt that her “cab rank” approach was the best way to address the rights of all those within her jurisdiction and ensure fairness for all.
The error
The Divisional Court accepted that the prioritising of one case might well cause a disadvantage to others. It also accepted that any determination of the order in which deaths were to be dealt with and, specifically, any decision as to whether one death should be given priority over others, was a complex task which involves balancing different rights and interests within the resources available to the particular Coroner.
But the Court said that it was necessary that a balance be struck. Article 9 (freedom of thought, conscience and religion) did not require any favouritism, whether in favour of religious belief in general or of one or more religious faiths in particular. However, it did require that a fair balance be achieved between the rights and interests of different people in society. The fundamental flaw in the policy was its rigidity: it required the Coroner and her officers to leave out of account altogether the requirements of Jewish and Muslim people. It therefore failed to strike any balance at all, let alone a fair one.
As well as infringing Article 9 rights, the policy could not be justified on the ground of administrative clarity or resources and it violated the principle of equal treatment in Article 14. For the same reasons, the policy also breached section 29 of the Equality Act 2010 which prohibits indirect discrimination and says that a service provider must not discriminate against a person requiring the service in relation to the terms on which the service is provided.
The only challenge to the policy which failed was the claim that the Coroner had failed to have regard to her public sector equality duty. The Court found that in fact, the Coroner was acutely aware of the impact her policy might have on the Jewish community. The problem was that she had not recognised that the nature of that impact would be discriminatory. Her misapprehension that the law did not allow her to give priority to one person over another, did not mean that she had failed to have regard to the need to eliminate the discrimination that she was, mistakenly, creating.
The way forward
Whatever policy is adopted must be flexible, in order to be able to accommodate the range of possible situations and pressures on a Coroner:
(1) A Coroner cannot lawfully exclude religious reasons for seeking expedition of decisions by that Coroner, including a Coroner’s decision about whether to release a body for burial.
(2) A Coroner is entitled to prioritise cases, for religious or other reasons, even where the consequence may be that other cases will have to wait longer for a decision.
(3) It is not necessary to treat all cases in the same way or in strictly chronological order.
(4) 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. However, limitations on resources do not justify discrimination.
(5) It would be wrong for a Coroner to impose a rule of automatic priority for cases where there are religious reasons for seeking expedition.
The new Guidance:
On 17 May 2018, the Chief Coroner withdrew the May 2014 Guidance that informed the Coroner’s unfair and irrational policy and issued new Guidance No. 28 “Report of Death to the Coroner: Decision Making and Expedited Decisions”.
That Guidance:
- Recapitulates the points made by the Divisional Court in paragraph 160 of the decision (set out above in this blog).
- Emphasises that in making prioritisation decisions, coroners have a “margin of judgment” so that such decisions will ordinarily only be challenged if they are unreasonable or fail to strake a fair balance between the rights of the individual family and those of other families who may be affected.
- Reiterates that decisions about what enquiries are to be made (for example whether or not to have a post-mortem), concluding inquests and releasing bodies are judicial decisions. They are subject to judicial review and they cannot be delegated to others. Neither are they matters with which the Chief Coroner can interfere or comment upon.
- Coroners do not have to adopt formal written policies for dealing with a request for an expedited decision or deaths in faith communities.
- States that any policy or practice that is adopted must be flexible and capable of balancing competing interests fairly.
- Advises that it is essential that each coroner area is adequately resourced to deal with deaths reported. Coroners should use technology, work efficiently and have regard to the “Model Coroner Area” document.
- And finally acknowledges that even with good co-operation and adequate resources, there are always some decisions that will take time.