The High Court today (27 April 2018) ruled that the protocol issued by chief coroner Hassell on 30 October 2017 that “No death will be prioritised in any way over any other because of the religion of the deceased or family” was ‘unlawful’; ‘irrational’ and ‘discriminatory’.
The validity of the protocol – widely known as the ‘Cab Rank’ rule – was consequently quashed.
The case has received support from the prime minister, London mayor Sadiq Kahn, the London Assembly and Jewish and Muslim leaders.
The judges found that it was “very clear from the various materials submitted by the defendant that she was acutely aware of the impact her policy might have on certain minority religious communities within her area.”
The claimants – the Adath Yisrael Burial Society (AYBS) – said they were not seeking automatic priority. Nor were they seeking to gain different treatment for any one particular group. They accepted that many groups might have a good reason to require a speedy burial, and thus need different treatment to others who do not need a speedy burial.
The court said: “We agree with the claimants and the chief coroner that… there should be no rule of automatic priority for those seeking expedition on religious grounds. That is not what the claimants were seeking.”
What the claimants sought was that, in the exercise of her duty, Hassell strikes a fair balance between the rights of the individual – in the claimant’s case a religious need to bury quickly – and the interests of the community. They said Hassell completely failed to strike such a balance.
Hassell argued that treating everyone equally was fair, suggesting that those who required early burials for religious reasons must “wait their turn” and not jump ahead of those who died first.
Trevor Asserson, founder of law firm, Asserson, which acted for the claimant, said: “This is to take a wrong and unlawful approach to ‘fairness’. The court found against Hassell on every count, except for finding that she had considered the impact of her protocol on Jews and Muslims.
“In other words, she knew she was causing anguish to people, but was too ignorant of the law to understand that her conduct was not only lacking in any compassion, but was also discriminatory and unlawful.”
He added: “This victory by AYBS is a victory for the cause of diversity throughout British society. Everyone interested in pluralism, and intent on defeating discrimination, in all its forms, must rejoice at the court’s firm and clear ruling.”
Rabbi Asher Gratt, speaking for the AYBS, said: “This legal victory will bring immense relief for grieving families to bury their loved ones with respect and dignity, preventing further unnecessary anguish at the darkest moment of their lives.
“Having twice been found guilty of acting unlawfully it’s high time for Hassell to move on and make way for a compassionate coronial service.”
The court has set a short timetable to decide on the question of who pays the legal costs of this action. Hassell has claimed to be neutral, which could excuse her from having to pay costs. However the claimants will argue that she played an active role in the proceedings and was not neutral.
The costs decision is likely to be made within a few weeks.