New Guidance following the AYBS Case

On 17 May, HH Judge Mark Lucraft QC, Chief Coroner, issued Guidance No. 28: Report of Death to Coroner: Decision Making and Expedited Decisions. This was issued following the judgment of the Administrative Court in R (Adath Yisroel Burial Society) v Senior Coroner for Inner North London [2018] EWHC 969 (Admin) (“the AYBS Case”), which was summarized in our 28 April post Coroners and “cab ranks”: R (Adath Yisroel Burial Society). The Guidance:

“is intended to be a practical guide to assist coroners in situations where (a) a bereaved family has made a request to the coroner for urgent consideration of the death of a loved one and/or early release of the body or (b) the coroner or coroner’s officers otherwise become aware of features of a particular death which may justify treating it as especially urgent”.

The introduction states:

“[4]. The Chief Coroner understands and is sensitive to the fact that some faith groups, particularly Jewish and Muslim, have religious and cultural wishes about treatment of a body and burial following a death. Coroners should pay appropriate respect to those wishes, within the framework of their legal duties and in the context of their other responsibilities. Many coroners engage with local community groups to improve mutual understanding”.

However, it also acknowledges that in many coroner areas, there is no general provision of services outside of office hours, and most decisions have to be taken during the working day. The Guidance document does not address the provision of out-of-hours services, which depend on resources being made available by funding authorities [6].

Paragraphs 7 to 10 describe “Coroners’ Decision-Making” during a typical working day and their legal authority over a body,

“[8]. A coroner to whom a death has been notified has legal authority over the body for as long as is necessary for enquiries and investigation into the death. The coroner will release the body to the bereaved family for burial or cremation as soon as practicable. The time within which a body can be released will depend upon the time required for enquiries and decisions of the kinds outlined above”.

Coroners sometimes receive specific requests from bereaved families to treat particular deaths as a matter of urgency [emphasis added]:

“[10]. …The reasons justifying these requests are many and varied. On occasion, the request will be made on the ground that the family has a religious or cultural belief that the body should be buried on the day of death or as soon as possible thereafter. Jewish and Muslim families, or their representatives, sometimes make such requests. The AYBS Case considered the approach to be taken in this situation. The Divisional Court concluded that it was unlawful for a coroner to adopt a policy ruling out the possibility of prioritising consideration of a death on religious grounds. It is also apparent from the judgment that it would be unlawful for a coroner to adopt a policy ruling out the possibility of prioritising consideration of a death on reasonable non-religious grounds.

Guidance

The Guidance considers [11] the general points made by the Divisional Court in its judgment [at 160], and notes that the reference in sub-paragraph (3)(b) to resource limitations not justifying discrimination means that such limitations cannot be used as a reason to rule out giving consideration to proper requests for expedition on religious grounds [at 124 of judgment].

It notes [12] that the Court also stressed that, in making individual decisions on whether to prioritise consideration of particular cases on religious or other grounds, a coroner has a “margin of judgment”. In other words, the decision is one for the individual coroner, considering all the circumstances. Such a decision may only ordinarily be challenged if it is unreasonable or if it clearly fails to strike a fair balance between rights of the particular family and the interests of other families who might be affected.

The main points of the Guidance are contained in paragraphs 14 to 17, and in view of their importance, they are reproduced in full, below:

“14. The judgment in the AYBS Case reflects two important legal considerations: (i) that a coroner should be open to representations that a particular case should be treated as a matter of urgency (whether for religious or other reasons); and (ii) that proper respect should be given to representations based on religious belief.

15. However, the decision of the Court does not require a coroner to give automatic priority to deaths from particular religious communities, nor does it require coroners to drop other important work to deal with such deaths. The Court also recognised that other deaths may require urgent handling for non-religious reasons.

16. There is no obligation for coroners to adopt formal written policies for dealing with requests for expedition or for dealing with deaths from faith communities. Practices may differ between coronial areas because of the characteristics of the areas. However, any policy or practices adopted by coroners must be sufficiently flexible to allow them to give due consideration to expediting decisions where there is good reason to do so. They should seek to strike a fair balance between the interests of those with a well-founded request for expedition (including on religious grounds) and other families who may be affected.

17. It is essential that each coroner area has sufficient coroner, coroner officer and administrative staff resource to deal with deaths reported within the coroner area.

Information technology is also important, and modern case management systems are essential in the majority of coroner areas. In the ‘Model Coroner Area’ document (revised 30 June 2017) the Chief Coroner has set out parameters for the working arrangements of coroners. In each coroner area, it is the responsibility of the Senior Coroner and the relevant local authority (or authorities) to work together to ensure that adequate resources (of coroners, officers and administrative staff) are available. Nevertheless, even with good co-operation and adequate resources, it is inevitable that some decisions will take time, either because of the complexity of the particular case or because of burdens on the coroner’s office”.

Comment

The Chief Coroner provides detailed Guidance to coroners on various matters relating to the Coroners and Justice Act 2009, and also occasionally on the law, following an important case. These are written to assist coroners with the law and their legal duties, and to provide commentary and advice on policy and practice. The Chief Coroner’s Guidance and Law Sheets are available here (and also other information on their role with regard to Treasure).