Rotsztein, R (On the Application Of) v Senior Coroner for Inner North London

Where a coroner considers an invasive post-mortem despite a sincere religious objection, the decision engages the qualified right to manifest religion under Article 9. The coroner must consider whether non-invasive or minimally invasive procedures offer a realistic possibility of establishing the cause of death, can be completed without undue delay or additional cost, and would preserve the effectiveness of an invasive autopsy if later required. An immediate invasive autopsy is justified where the statutory duty to ascertain how, when and where death occurred gives good reason for it. The decision must reflect a fundamentally correct legal approach, although perfection is not expected. A coroner who actively defends the legality of the decision risks an adverse costs order if the challenge succeeds.

An elderly Orthodox Jewish woman died after conflicting medical views about whether the cause was sepsis or a cardiac event. The Senior Coroner ordered an invasive autopsy despite the family’s religious objection and rejection of their proposal for CT scanning, coronary angiography and relevant cultures. An interim injunction prevented the autopsy. Subsequent non-invasive investigation and culture results established the cause of death, making the claim academic, but permission was granted because the case raised principles likely to recur. The judicial review concerned the correct approach to choosing between invasive and non-invasive post-mortem procedures and the relevance of the Chief Coroner’s guidance.

1. The claim succeeded on the principal ground. The coroner had adopted the wrong approach in deciding that an invasive autopsy was necessary. She considered the risk that non-invasive procedures might produce an apparent but incorrect cause of death, but failed to ask whether those procedures would compromise an invasive autopsy if one later became necessary. That was a material flaw in her reasoning.
2. The proportionality analysis for Article 9 follows the four-stage approach stated by Lord Sumption in Bank Mellat v Her Majesty's Treasury (No 2) [2014] AC 700: importance of the objective, rational connection, availability of a less intrusive measure, and fair balance, with the practical question whether a less intrusive measure could be used without unacceptably compromising the objective.
3. For deaths where the cause is unknown, the coroner should consider whether:
   • an established religious tenet requires avoidance of invasive autopsy;
   • non-invasive procedures offer a realistic possibility, rather than necessarily a greater-than-even chance, of establishing the cause of death;
   • the examination can be completed without undue delay;
   • non-invasive procedures will not impair a later invasive autopsy;
   • the duty to ascertain how, when and where death occurred gives a good reason for immediate invasive examination; and
   • the procedures can be undertaken without imposing an additional cost burden on the coroner.
4. The Chief Coroner’s guidance addressed minimum standards once post-mortem imaging had been selected. It did not determine whether non-invasive procedures should be selected in the first place.
5. The decision to order a post-mortem remained a matter for the coroner’s judgment. The court required a fundamentally correct legal approach, not perfection in the pressured circumstances of coronial work. The decision was quashed in substance, but no quashing order was necessary because the matter had become academic. A declaration was to be made. Applying the principles in R (on the application of Davies) (No 2) v Birmingham Deputy Coroner [2014] 1 WLR 2739, the coroner had not maintained a neutral stance and was ordered to pay 90 per cent of the claimant’s costs.

First-instance judicial review in the Administrative Court. An interim injunction had earlier been granted by Leggatt J preventing the invasive autopsy. The claim subsequently became academic after non-invasive procedures established the cause of death.