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Jewish burial complaint upheld by High Court

04 May 2018

Coroner told to use ‘triaging’ system to release bodies for funerals


Sacred ground: the Sephardic section of the Hoop Lane Jewish Cemetery in Golders Green, London, pictured in 2008

Sacred ground: the Sephardic section of the Hoop Lane Jewish Cemetery in Golders Green, London, pictured in 2008

THE current policy of the senior coroner for Inner North London of refusing to prioritise any death because of the religion of the deceased or the family of the deceased was unlawful, the High Court declared last week. Although the principle of equality required like cases to be treated alike, it also required that different cases should be treated differently.

There was evidence before the court that the average time between a death and burial or cremation was 15 days. That was made possible by advances in cold storage and embalming. There was also, however, evidence before the court, which was not disputed by the coroner, that for certain faith groups — in particular, Jewish and Muslim faith groups — it was important that a funeral should take place as soon as possible: ideally on the day of death.

In October 2017, the coroner issued a statement to the effect that “no death would 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 claimants who challenged the policy were the Adath Yisroel Burial Society, a charitable organisation responsible for facilitating the burials of a large proportion of the Orthodox Jewish population in Inner North London, and Ita Cymerman, a 79-year-old Jewish woman living within the coroner’s administrative area. Mrs Cymerman expressed serious concerns, based on her religious beliefs, about the impact of the coroner’s policy.

The coroner’s particular concern had been that Jewish families were being prioritised over other families by the coroner’s officers, and that the prioritisation of one sector of the community above others had had a significant negative impact on those others. She said that, in her 12 years as coroner, queue-jumping placed those who were pushed back at a material disadvantage.

She said that all families wanted the coroner to make a decision quickly about whether there were further inquiries to be made, whether the deceased must undergo an examination, or whether quick release for a funeral was possible. All families wanted to be notified immediately of that decision.

She rejected the claimants’ proposition that she should operate a system of “triaging” deaths. That was because she lacked the resources to implement such a system, and a system of triage would cause delay for all.

There was evidence of deaths where an early decision from the coroner was required for reasons that were not religious: for instance, where organ donation was sought, and deaths where a homicide investigation was under way. The coroner said that cases of organ donation and homicide investigation would be prioritised, notwithstanding her policy.

Lord Justice Singh (a judge of the Court of Appeal) and Mrs Justice Whipple (a High Court judge), sat in the Queen’s Bench Divisional Court of the High Court to hear the case. They concluded that a coroner could not lawfully exclude religious reasons for seeking expedition of that coroner’s decision, including the decision whether to release a body for burial.

A coroner was entitled to prioritise cases for religious or other reasons, even where the consequence of prioritising one or some cases might be that other cases would have to wait longer for a decision. It was not necessary that all cases be treated in the same way, or in strictly chronological sequence.

Whether to accord one case priority over another or others was for the coroner to decide, the court said. It was, in principle, acceptable for the coroner to implement a policy to address the circumstances when priority would or might be given, so long as that policy was flexible, and enabled all relevant considerations to be taken into account.

The availability of resources might be a relevant consideration in drawing up a policy, or in the decision in any individual case. The limitations on resources did not justify discrimination. It would also be wrong for a coroner to impose an automatic priority for cases where there were religious reasons for seeking expedition.

The court added the “important rider”, however, that any decision reached by a coroner in an individual case, assuming that all relevant matters were taken into account, would be subject to a “margin of judgement”. That meant that the court would not “second guess” the coroner just because the coroner’s decision was not to the liking of a particular family or others.

Anyone seeking to challenge a coroner’s decision on the grounds that the coroner had breached their human rights would have to demonstrate that the coroner had exceeded the margin of judgement afforded by the law.

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