King Arthur Pendragon, R (on the application of) v Ministry of Justice

At the permission stage of a judicial review, the claimant must identify an arguable basis for concluding that the decision-maker acted unlawfully. A minister exercising a statutory discretion must take account of appropriate representations, but need not accept them. A complaint based on an alleged future intention or duplicity requires a proper evidential foundation. Unsupported allegations do not justify permission, although a later claim may be brought if subsequent evidence gives them substance. A Convention rights argument must have a realistic prospect of success.

The claimant sought judicial review of the Secretary of State for Justice’s decision to vary a licence under section 25 of the Burial Act 1857. The licence concerned the exhumation of cremated remains from Stonehenge and required their re-interment by a specified date. The variation extended the long-stop date to 1 November 2015 while retaining the requirement that re-interment occur as soon as practicable.

The claimant alleged that the Secretary of State had failed to consider his representations, infringed his rights under Article 9 of the Convention, and acted duplicitously or with bias. Edwards-Stuart J had refused permission on the papers. The issue was whether the written and oral material disclosed an arguable case warranting permission.

1. The application for permission to apply for judicial review was refused. On the written material, Edwards-Stuart J had been correct to refuse permission, and the additional oral submissions did not establish a sufficient evidential basis for granting it.

2. The decision whether to vary the licence was a matter for the Minister’s statutory discretion, exercised after consideration of appropriate representations. The evidence, including the acknowledgement of service, showed no basis for concluding that the claimant’s representations had been deliberately or inadvertently ignored. That ground could not realistically succeed.

3. The alleged infringement of Article 9 or any other Convention right had no realistic prospect of success. The court adopted the reasons addressing that issue in the defendant’s acknowledgement of service.

4. The allegation that the Minister was acting duplicitously or with bias was unsupported by adequate evidence. An unsubstantiated allegation cannot provide a proper basis for permission. If later events supplied evidence supporting such a claim, a fresh challenge could be brought at the appropriate time.

5. The licence itself required re-interment as soon as practicable and in any event by 1 November 2015. The court therefore found no present unlawful decision merely because the archaeological team wished ultimately to retain the remains in a museum.

1. High Court (Administrative Court): Edwards-Stuart J refused permission on the papers. The renewed application was refused by Wyn Williams J: [2011] EWHC 2607 (Admin).