In the Courts: the Jewish burial case

On 27 April 2018 the High Court ruled that a Senior Coroner’s policy 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” should be quashed.

The Policy was challenged by a charitable Jewish burial organisation and an elderly Orthodox Jewish woman who lived within the Coroner’s area, by way of judicial review. Coroner Hassell, who described her Policy as a “cab-rank rule”, said that dealing with deaths in strictly chronological order was the fairest way to use her resources. However, a Divisional Court, comprised of Lord Justice Singh and Mrs Justice Whipple, found that the Policy was “over-rigid”, “unlawful”, “discriminatory”, “incapable of any rational justification”, infringed Articles 9 and 14 of the ECHR, and discriminated against people of any religion whose belief requires speedy burial.

The judgment in this case is important. Not because it establishes new law – in fact, the legal principles relied upon are well-established – but because human rights and equality law, which are fundamental to a modern democratic society, remain misunderstood.

Article 9 of the European Convention of Human Rights, enshrines the right to “[freely] manifest one’s religion or beliefs.” The ECtHR stressed its importance as a foundation stone of a pluralistic society in Eweida v United Kingdom (2013) 57 EHRR 213:

…freedom of thought, conscience and religion is one of the foundations of a ‘democratic society’… it is one of the most vital elements that go to make up the identity of believers and their conception of life, but it is also a precious asset for atheists, agnostics, sceptics and the unconcerned. The pluralism indissociable from a democratic society, which has been clearly won over the centuries, depends on it.”

In the present case, Hassell accepted that Muslims and Jews had a religious need to bury their dead quickly, whereas most people were less concerned. The average delay between death and burial is now 15 days. The Claimants were not seeking automatic priority, but merely that Coroner Hassell should strike a fair balance between the rights and interests of different people in society, rather than to decide in advance that respecting the religious need for different treatment will never occur. As Singh LJ said: “The fundamental flaw in the present policy adopted by the Defendant is that it fails to strike any balance at all, let alone a fair balance.”

Hassell argued that it would be “unfair” for her to give priority to one person over another and to allow “queue jumping”. This approach to fairness was incompatible with the principles of discrimination law which recognise that fair treatment does not always mean that everyone is treated in an identical way. Patients in an A&E department who require urgent treatment will be prioritised ahead of others yet, as Singh LJ said, “reasonable people in society would not regard that as “queue jumping” or otherwise unfair”.

At its heart, Hassell did not understand what Elias LJ described as “perhaps the most fundamental principle of justice”, which is that “Like cases should be treated alike and different cases treated differently” (AM (Somalia) v Entry Clearance Officer [2009] EWCA Civ 634).

This principle is well illustrated by the case of Jakóbski v Poland (2012) 55 EHRR 8. Every prisoner received identical meals, consisting of meat. A Mahayana Buddhist whose faith required him to be a vegetarian starved, while others ate well. What appeared to be equal treatment for all had an unequal impact on the Buddhist, which was discriminatory. As Singh LJ succinctly put it: “Uniformity is not the same thing as equality.”

Mr Grodzinski QC argued for the Claimants that the Policy is discriminatory as it puts at “a particular disadvantage” those whose religion requires early burial, compared to those people whose religion (or absence thereof) makes no such demands. The Court accepted this submission. If the Second Claimant, an elderly Jewish woman, compared her position to that of a “hypothetical comparator”, namely someone who does not share her faith, the hypothetical comparator would be able to comply with the strict requirements of her faith in a way which the Second Claimant is not able to do. That puts the Second Claimant at a “particular disadvantage” when compared with persons with whom she does not share the protected characteristic.

The Court considered, and rejected, two possible justifications for the discrimination in the Policy.

First was the need for a “bright line” so that the policy is easy to understand and administer. But the Court rejected a suggestion that clarity – that religious needs should always be ignored – could possibly excuse the discrimination that would involve. The Court rejected Hassell’s argument that her limited resources justified a rigid discriminatory policy. Resources are always finite and must be allocated in a way which is not discriminatory. The Court recognised that, on a particular day, conflicting priorities and limited resources might mean that priority might not be granted to someone who required it, but a rigid decision, in advance, to ignore certain needs protected by law, will always be wrong.

The judgment is an important reminder of the values which underpin British society, and which are essential for a pluralistic society to function. As Lord Justice Singh summarised:

The kind of society which is envisaged by the Convention and the HRA is one which is based on respect for everyone’s fundamental rights, on an equal basis…it is a society which is characterised by pluralism, tolerance and broad-mindedness. It regards democracy as being a community of equals.”

Coroners are generally happy to accommodate the needs of minorities. This is the third case Hassell has lost on such issues. She has stated that she will now “consider every family for prioritisation,” but has not decided how she will operate this new policy.

Trevor Asserson and Avital Berger of Asserson Law Offices, were solicitors for the Claimants in this case, R (on the application of Adath Yisroel Burial Society) v Senior Coroner for Inner North London [2018] EWHC 969 (Admin).