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Chief Coroner Provides Guidance on Burial Policies

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May 24, 2018 | By Jim Gladman |

May 24, 2018 | By Jim Gladman |

The Chief Coroner, Mark Lucroft QC, has published a practical guide to assist Coroners when there is a request from the deceased’s family for the urgent release of their loved one’s body.

The guide notes that a Coroner has legal authority over a body when a death is notified. This authority extends for as long as is necessary for enquiries and investigations into the death. The Coroner will release the body to the bereaved family for cremation or burial as soon as possible after all appropriate enquiries and investigations have been completed.

The guide gives examples of when there may be a need for urgent consideration for release of the body as:

  • Homicide investigation
  • Organ donation
  • Religious grounds

The guide follows a recent High Court decision which found that a Coroner’s “cab rank” burial policy was unlawful.

The High Court decision concerned a rule introduced in October 2017 by Mary Hassell, the Senior Coroner for Inner North London. The controversial policy provided 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.”

The blanket policy that no death should be given priority on the grounds of faith was challenged by Jewish and Muslim groups. Under Jewish and Islamic law, bodies must be buried on the day of death or as soon as possible afterwards.

The Inner North London policy was set aside (quashed) and the Coroner was encouraged to draft a new policy.

The High Court decision followed a judicial review of the Inner North London policy before Lord Justice Singh and Mrs Justice Whipple. They decided that the policy was “inflexible” and “incapable of rational justification”. The Chief Coroner was part of the judicial review proceedings as an interested party. He had written prior to the hearing to say that the Inner North London policy “was not lawful, even though it may have been produced in a sincere desire to be fair to everyone in the area”. (See: https://www.lawgazette.co.uk/law/chief-coroner-considers-cab-rank-burial-rule-to-be-unlawful/5065076.article)

In summary the High Court said:

  • “A Coroner cannot lawfully exclude religious reasons for seeking expedition of decisions by that Coroner, including the Coroner’s decision whether to release a body for burial.”
  • “A Coroner is entitled to prioritise cases, for religious or other reasons, even where the consequence of prioritising one or some cases may be that other cases will have to wait longer for a decision. It is not necessary that all cases are treated in the same way or in strictly chronological sequence.”
  • “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 High Court said that in principle it was acceptable for a 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.

The High Court added an important rider:

Any decision reached by a Coroner in an individual case, assuming that all relevant matters are taken into account, will be subject to a ‘margin of judgement’. … This means that the Court will not second guess the Coroner just because his or her decision is not to the liking of a particular family or others. Anyone seeking to challenge a decision of the Coroner on grounds that the Coroner has breached Convention rights will have to demonstrate that a Coroner has exceeded the margin of judgement which is afforded to him or her by the law.”

You should seek legal advice if you think that the death of a loved one may have been caused by medical error or mistake. The medical negligence team at Switalskis can help you with this, and can offer advice and assistance if the coroner decides to hold an inquest. Call us on 0800 138 0458 or send us a message via the contact form below.

Find out more

For the Guidance: https://www.judiciary.gov.uk/wp-content/uploads/2018/05/guidance-no-28-report-of-death-to-the-coroner-2010517.pdf

For a summary of the decision: https://www.judiciary.gov.uk/wp-content/uploads/2018/04/aybs-v-hmcoroner-judgment-summary.pdf

For the full decision: https://www.judiciary.gov.uk/wp-content/uploads/2018/04/aybs-v-hmcoroner-judgment.pdf

 

 

Jim Gladman

Jim Gladman is a solicitor within our Clinical Negligence team in Huddersfield and specialises in Medical Inquests. He joined Switalskis in January 2010 and has over twenty years' experience in Clinical and Medical Negligence claims. Jim's profile

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