Ghai v Newcastle City Council

The burning of human remains outside a crematorium is a criminal offence under the Cremation Act 1902 and the Cremation (England and Wales) Regulations 2008. A sincerely held belief in open-air cremation may qualify as a manifestation of religion under Article 9, even if it is held only by a minority strand of a faith. The prohibition may nevertheless be justified where it pursues public safety, public morals and the protection of others. Article 8 may protect particular funeral arrangements in some circumstances, but it does not protect a public open-air cremation. A neutral cremation rule is not indirectly discriminatory without evidence of disproportionate prejudice, and any such prejudice may be objectively justified.

The claimant, an orthodox Hindu, sought judicial review of Newcastle City Council’s refusal to provide land for open-air funeral pyres and to facilitate such cremations. He sought declarations concerning the legality of burning human remains outside a crematorium and relied on Articles 8, 9 and 14 of the Convention, as well as domestic race and equality legislation. The first intervener supported the claim on the basis of Sikh tradition; the second intervener supported regulated natural cremation. The central issues were whether open-air cremation was prohibited by the statutory scheme, whether the prohibition interfered with protected religious, private or family life, and whether any interference or discrimination was justified.

1. Statutory prohibition. The Cremation Act 1902 regulates the burning of human remains generally. Section 2 defines a crematorium as a building fitted with appliances for burning human remains. Regulation 2(1) of the Cremation (England and Wales) Regulations 2008 defines cremation as the burning of human remains, and regulation 13 provides that no cremation may take place except in a notified crematorium. The combined effect is that burning human remains on an open-air pyre is a criminal offence under section 8 of the 1902 Act.
2. Article 9. The claimant’s belief was genuine, serious, coherent and sufficiently central to one strand of orthodox Hinduism to satisfy the thresholds identified in R (Williamson) v Secretary of State for Employment and Education [2005] UKHL 15. The statutory prohibition therefore interfered with his manifestation of religious belief. The position of the Sikh intervener was different: open-air cremation was accepted to be a tradition rather than Sikh dogma or belief and was not protected under Article 9.
3. Justification. The interference was prescribed by law and pursued legitimate aims, including protecting public morals and the rights and freedoms of others. The requirement that cremation take place in a building was a proportionate general rule. The issue involved difficult and sensitive assessments of public reaction, safety and regulation on which elected representatives were entitled to special weight. The claimant’s remedy was political campaigning and legislative change, not judicial reinterpretation.
4. Articles 8 and 14. Article 8 may in some circumstances extend to funeral arrangements closely connected with personal or family identity, but a public open-air cremation fell outside the private and familial spheres. The Article 8 claim therefore failed, in any event for the same justification reasons. Article 14 was not engaged without evidence that the neutral statutory rule had a disproportionate prejudicial effect on the relevant religious group. Any such effect would in any event have been objectively and reasonably justified.
5. Relief. Section 3(1) of the Human Rights Act 1998 could not be used to transform a statutory prohibition into permission for open-air cremation. The claim and the remaining domestic discrimination arguments failed.