Coroners setting priorities: Religion is relevant, but so are other needs

by | May 1, 2018 | News | 10 comments

The High Court has now reached its decision in a challenge to a policy imposed by the coroner for Inner North London which stated as follows: “No death will be prioritised in any way over any other because of the religion of the deceased or family”.

This taxi-rank rule had been set out in response to tensions between the coroner and a Jewish burial charity, the detail of which we discussed in an earlier blog.  The dispute was one which aroused strong feelings on all sides, and amongst observers.  Both Judaism and Islam require a deceased person to be buried as soon as possible after death, and any delay in funeral arrangements will cause acute distress within these communities. However, it is also unquestionable that all bereaved families are likely to find it painful if faced with an increased wait to say their final goodbyes, and many people struggle with the thought of their loved one being kept and examined by strangers.  All things considered, coroners have to be mindful of the situation of all of the families with whom they are dealing, and against a backdrop of limited public resources, managing competing needs is undoubtedly very challenging.

Nevertheless, it is not surprising that a blanket ban on considering religious factors in prioritising the coroner’s work was found to be unlawful.  In reaching this conclusion, the High Court was careful to stress a number of factors.  In pragmatic terms, coroners have to make decisions prioritising their caseload, and there are multiple reasons why an investigation into a particular death should be concluded as rapidly as possible.  These might be practically based, e.g. if organ donation is a possibility or there is an ongoing homicide investigation, but they could also rooted in emotional factors, and what the court described as ‘ordinary humanity’.  For instance, where a child has died in hospital, the parents may wish to have his or her body moved from a hospital mortuary to a suite at a hospice, where they can be laid out peacefully in a more gentle environment. Clearly, decisions about which deaths to prioritise are difficult and sensitive matters, and a completely inflexible policy offends common sense as well as legal principles.

The court had no difficulty in finding that refusing to consider religious needs was unlawful. As a general principle, those exercising statutory (and possibly some forms of Common Law) decision-making discretion may not ‘fetter’ in.  In other words, if a person is tasked with using their discretion, they are failing to do this if they robotically apply fixed criteria.  Furthermore, public decision-makers must make rational choices, and however you sliced it, a policy which took no heed of religious concerns was unreasonable.  On the one hand, if the policy was supposed to take into account individual circumstances in general terms, yet was to specifically ignore factors relating to faith, then this arbitrary exclusion would undoubtedly be irrational.  But, conversely, if the policy purported to forbid taking any of the individual circumstances of the case into consideration, it would manifestly fail whatever test of rationality was to be applied, as well as being untenable in a practical sense.  In addition, Article 9 of the European Convention of Human Rights guarantees a right for people to not only hold, but also express their religious beliefs. The right to manifest religious beliefs can be limited by the State, but only if there is a good reason and only in so far as it is necessary.  In refusing to even think about a family’s needs, the coroner would inevitably fail to show that she had acted for a sound and objectively important reason, and avoiding going further than was required in limiting religious freedom.

In light of all of this, the court was bound to find against the blanket ban on factoring religious needs into decision-making.  At the same time, the court was nevertheless very keen to stress its second overarching point.  The coroner had a duty to strike a ‘fair-balance’ between religious needs and other needs (and obviously, totally disregarding the former was no way to do this), but this should not be interpreted to mean that faith-based demands should take priority.  A policy which automatically placed religious families ahead of non-religious families in the queue would be every bit as unlawful and inappropriate as the blanket ban which had been imposed.  Furthermore, the court made a useful analogy between the task before the coroner and that of a hospital’s Accident and Emergency department.  It would be disastrous if patients arriving at casualty were treated on a first come first served basis, and a middle aged man suffering a heart-attack had to queue behind a toddler with a dried-pea jammed up his nose.  In both contexts, each situation needs to be appropriately assessed, and although guidelines in making such judgements are necessary, they must be based on reasonable parameters and flexible enough to allow discretion.

In other words, regardless of their religion or lack of it, the position is the same.  Every family can expect that its particular circumstances will be taken into account, and weighed up in light of the workload, resources and the competing needs of others.  Coming from a particular religious or cultural background certainly does not give anyone a ‘right’ to jump the queue, but if that religious or cultural context heightens the distress caused by delay or invasive procedures, then this should be taken into account when priority decisions are being made.

Often human rights, and religious rights in particular, are criticised for giving some groups in society access to special treatment.  This is inaccurate: the whole point about universal human rights is to recognise that everyone has exactly the same rights by virtue of their human status.  When there is a clash between competing rights, it is the job of the State, and where there is dispute of the State’s courts, to ensure that a ‘fair-balance’ is arrived at.  It would be impossible to find a fair-balance by ignoring religious beliefs, on the one hand, or treating them as a priority boarding card to faster service on the other.  This decision affirms that religious needs are important, but so are other needs as well.

Related articles

Coroners Inquests and Religious Requirements: Where Angels Fear to Tread (Balancing Beliefs 26/1/18)

Adath Yisroel Burial Society  v HM Senior Coroner For Inner North London [2018] EWHC 969 (Admin)

 

 

10 Comments

  1. Falco Grail

    The problem that I see is that once one member of a group has been given priority because their religious belief is that bodies should be buried on the day of death or the following day, it is then not possible to reasonably refuse the request of all other members of that religion to have the same treatment; at which point, regardless of the court’s intention, in reality religious reasons become an automatic priority in practice. This means that all those of other religions will be pushed further and further down the queue because their religion is not the one getting priority. This means that those of other religions will end up being discriminated against purely on the basis of their religion, which is surely illegal?

    Reply
    • Helen Hall and Javier Garcia Oliver

      Thanks for the comment-the judgment of the court makes it very clear that the law really doesn’t work like that. Firstly, it was stated explicitly that a policy of automatically giving priority to religious families would be illegal and inappropriate. Secondly, because the Coroner has to make a decision about every case, depending on its facts, AND also the facts of the other cases he/she is dealing with, it certainly IS possible and NECESSARY to prioritse some religious cases but not others. The analogy of a hospital A&E department is a good one, where you are in the queue to be seen depends partly on the state you are in, but also on the state of other patients in the department on that particular day.

      Reply
      • Falco Grail

        I think that you have misunderstood my point. I am not saying that a coroner will have a POLICY of automatically giving priority, but that the RESULT will be the same as having such a policy. For example; if four Jews die on the same day, how can the coroner give priority to one burial because of religious belief that the body must be buried that day, but not give the same priority to the other three? I think that if a coroner did that, then the three who didn’t get priority would be even more upset than if none of the four got priority. And those three families could reasonably ask, why wasn’t it our family that got the priority if only one family can have it? So the coroner will be in an impossible situation; and since all four families have exactly the same claim, then all four will end up being put to the front of the queue to the detriment of everyone else. So even without a policy of automatic priority the end result will be the same as if such a policy was in place.

        Reply
        • Helen Hall and Javier Garcia Oliver

          Hello-sorry for the delay in replying to this. I know that you aren’t suggesting that there would be a policy, but I don’t think that you have quite understood what the judgment means. Whether or not a religious desire on the part of a family for an immediate burial would be a sufficient reason to prioritise the death, will depend upon the needs and circumstances of all of the families with whom the Coroner is dealing. So in other words, prioritising one family with religious needs on one day, would NOT mean prioritising a family from the same tradition on another occassion, if other factors were different.

          Reply
  2. Richard Morris

    I think your example contains an unstated assumption and should read ‘if four Jews die on the same day and there are no other competing claims’. Then the four will be, I would assume, be prioritised.

    However if there are other deaths on the same day with competing claims to immediate burial, then they may not be. The coroner will be expected to weigh the circumstances of each case and make a decision.

    Reply
    • Falco Grail

      But in normal circumstances, no murder victims or other cases involving the law courts, what other competing claims could there be? The result, even without such a policy of automatic priority, will be that Jews get priority as they require same day burials, Muslims will be next because they require burial by the following day, and all of the Christians etc will be at the end of the queue. So Christians will be put to the back of the queue, and thus discriminated against, simply because of their religion. Discriminating against people on the basis of their religion is illegal, but for a coroner, not taking into consideration Jewish and Muslim religious beliefs in the ordering of cases is also now illegal. So as I see it, they end up breaking the law whatever they do.

      Reply
  3. Richard Morris

    Is four Jews dying on the same day a normal circumstance?

    The fact you cannot envisage any other competing claims doesn’t mean there won’t be any. A family might be about to embark on a holiday, for example. To be clear, I’m not saying that would necessarily trump another claim, just that the coroner has to consider it.

    You use ‘back off the queue’ in a pejorative sense but since most families have no particular reason for a speedy burial – they need time to make arrangements and so on – where is the disadvantage?

    Reply
    • Falco Grail

      According to the Board of Deputies of British Jews https://www.bod.org.uk/jewish-facts-info/jews-in-numbers/ there are 54084 Jews living in Barnet. According to Statista https://www.statista.com/statistics/281478/death-rate-united-kingdom-uk/ the average rate of deaths per 1000 during 2000 to 2016 was 9.3. So we can expect that an average of 503 Jews will die in Barnet every year; which is 1.38 per day on average.

      According to Haringay Council http://www.haringey.gov.uk/births-death-and-marriages/registering-death/coroners#opening-hours the Barnet coroner is open five days per week from 8am to 4 pm. that means that on Mondays the coroner has to deal with Jewish deaths that have occurred from 4pm Friday afternoon until 4pm Monday afternoon which will average 4.14. So whilst they haven’t all died on the same day, it is nothing unusual for the coroner to have 4 Jewish deaths to deal with on Mondays. Given that things won’t be statistically perfect the actual figure is likely to be between 2 and 6, and could even vary between 0 and 8.

      I did say “in normal circumstances” a family needing a body quickly because they are going on holiday is not a normal circumstance.

      The argument for giving Jews (and Muslims) priority is that if they don’t get to bury their bodies in accordance with their religious beliefs that increases their pain of grieving. For Christians and others burial is often seen as closure of the grieving, and any delay increases their time of grieving. So the argument is, that in order to reduce the grieving of Jews (and Muslims), Christians (and others) should put up with a longer period of grieving. Do you think that having a longer period of grieving is not a disadvantage?

      Don’t Jews and Muslims also need to make arrangements the same as other families?

      As I said before, this ruling disadvantages Christians purely on the basis of their religion, which I believe is illegal.

      Look at this from the other direction, This case was brought by Jews who were upset at being given exactly the same treatment as others – first come, first served, that is, they were not getting the priority that they wanted. Can you imagine what would happen if a coroner decided that Christian grieving was worse than Jewish grieving and it was the Christians who got priority and the Jews who were the ones being moved to the back of the queue? All hell would be let loose wouldn’t it? So why is it OK to treat Christians in this, probably illegal, way?

      Reply
      • Helen Hall and Javier Garcia Oliver

        Further to my last comment, hopefully you will now be able to see why Christians, Humanists and others are not disadvantaged. It is accepted by all parties that families who have an increased wait may experience added distress, and this would in many circumstances be a good reason not to allow a death from a Jewish or Muslim family to be dealt with ahead of another case. All this judgment states is that Coroners must take religious factors into consideration alongside all other factors at play.

        Reply
      • Richard Morris

        To address a couple of your points:

        ‘Do you think that having a longer period of grieving is not a disadvantage?’

        My answer would be that it all depends on the circumstances of that family. They may wish, for example, for others to view the body. This may take time. They may need time to organise the wake, place notices in the media and so on. It may be a relative who has been ill for a long time and the grieving has already happened. Every case is different. It is up to the Coroner to balance the competing circumstances.

        ‘Can you imagine what would happen if a coroner decided that Christian grieving was worse than Jewish grieving…’

        Once again you are truncating the argument. It is not Christian grieving or Jewish grieving in the abstract. It is, among other circumstances, the level of grieving in that particular case.

        Finally I’m surprised you dismiss my suggestion of an impending holiday as a reason for priority. The Coroner must take all circumstances into account. I can’t see why that would not be relevant.

        Reply

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