HM Coroner for the Eastern District of London, R (on the application of) v Sutovic

A Secretary of State deciding whether to issue an exhumation licence under Burial Act 1857, section 25, may consider whether the licence would practically enable the exhumation and may take account of the rights and objections of those with interests in the grave and memorial. A change in the facts or in the information available may justify giving greater weight to family objections than on an earlier application. Where the burial is in consecrated ground and a Faculty is required, judicial review proceedings against the Secretary of State alone cannot usefully provide the requested relief or override the rights of the grave-rights holder.

The claimant, the Coroner for the Eastern District of London, sought judicial review of the Secretary of State’s refusal to re-issue a licence under section 25 of the Burial Act 1857 for the exhumation of Petar Sutovic. A fresh inquest had previously been ordered under section 13 of the Coroners Act 1988 following earlier proceedings brought by the deceased’s mother, but the proposed burial site lay outside the claimant’s district.

The Secretary of State had initially issued a licence, which expired before exhumation occurred. He refused a fresh licence after learning of strong objections by the deceased’s family, their rights concerning the grave and memorial, and the practical risk of civil proceedings. It later became clear that a Faculty was also required because the burial ground was consecrated. The central issues were whether the refusal was irrational or involved fettering of discretion, and whether the court could grant useful relief.

1. The application was dismissed. The court had no power, in proceedings constituted against the Secretary of State alone, to override the rights of the deceased’s mother concerning the grave and memorial. Once it was accepted that a Faculty was required for the proposed exhumation, no useful purpose could be served by granting the relief sought. Matters concerning the Faculty were for the Chancellor of the Diocese of London.
2. The Secretary of State was entitled to consider the practical effect of a section 25 licence. Such a licence protected against criminal liability for an otherwise unlawful removal, but did not itself create a duty to exhume or affect civil rights. It was therefore legitimate to consider whether the licence would enable the exhumation to take place, given the absence of consent and the risk of civil proceedings.
3. The Secretary of State had not unlawfully fettered his discretion by having regard to long-standing practice concerning consent. The claimant did not establish that the decision-maker treated that practice as an inflexible rule. The decision was reached in the light of the circumstances as understood when the fresh application was determined.
4. The Secretary of State was entitled to give greater weight to the objections of the deceased’s mother and other family members than he had anticipated when granting the first licence. The information and circumstances had changed, including the extent of the objections and the rights associated with the grave and memorial. That change in evaluative weight did not make the decision irrational or Wednesbury unreasonable.
5. The court expressed no view on matters falling to be determined by the diocesan Chancellor. If a Faculty were later granted and a section 25 licence remained necessary, the Secretary of State would have to consider any fresh application in the circumstances then prevailing.

The judgment records earlier proceedings in which a fresh inquest was ordered under section 13 of the Coroners Act 1988: Sutovic v HM Coroner for North London [2006] EWHC 1095 (Admin). The present claim was a first-instance judicial review of the Secretary of State’s later refusal to re-issue an exhumation licence.