Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE TUGENDHAT
| R (on the application of) HM Coroner for the Eastern District of London
|- and -
|The Secretary of State for Justice
Susan Sutovic, Velisa Sutovic and Marko Sutovic
Mr Paul Brown QC (instructed by Treasury Solicitors) for the Defendant
Mr Mark Hill QC and Leslie Thomas (instructed by Sutovic and Hartigan) for the 3rd interested party
The 1st and 2nd interested parties appeared in person
Hearing date: 27 July
Crown Copyright ©
Mr Justice Tugendhat :
"In the early hours of 27 January 2004 the deceased was seen lifeless at his mother's flat in Belgrade. There was no evidence as to the exact circumstances surrounding the death. He had previously been a drug abuser but his mother said that recent drug screens were negative".
"95. Whilst, on the state of the evidence at present, any other verdict than an open verdict may seem unlikely, we are persuaded that in the light of the evidence which has emerged since the coroner's verdict a fresh inquest should be ordered….
97. In the present case in the inquest verdict the coroner did record some circumstances… and in particular that there was no evidence as to the exact circumstances surrounding the death. But it appears that there is evidence of at least some of the circumstances surrounding the death. Those circumstances have never been fully investigated and indeed could not be investigated since that evidence had not yet emerged, at the time of the verdict on 27 September 2004. The evidence includes the report of the Serbian Ministry of Interior Affairs dated 11 April 2005, the reports of doctors Milosavljevic and Gavalas as to the appearance of the deceased and to the presence of blood at the scene.
98. If, after examination of the circumstances at a fresh inquest, it emerges that the deceased had been treated with violence at the time of his death, even if that only leads to another open verdict, that seems to us to be a conclusion very different from that which already had been reached…. The evidence which has now emerged may cast a very different light upon the circumstances of Petar Sutovic's death. In those circumstances we would allow the application under Section 13 and order a fresh inquest before a different coroner.
99. We should emphasise that our conclusion is based on a very small amount of the material before us and despite the over abundance of argument, evidence and experts' reports. It will be for the coroner conducting a full and fair fresh inquest to sift that which is of use and that which is without foundation. The claimant's grief deprived her of the ability to do so in prosecuting either the judicial review proceedings or the claim under Section 13 of the 1988 Act. Many of her concerns are not legitimate and have been fuelled by experts reports, some of which we consider are flawed for the reasons we have set out, in particular the apparent non disclosure to those instructed by or on behalf of the claimant of the Serbian Ministry of Interior Affairs' report demonstrating the inadequacies of the original investigation and the fact that the scene of the death was not sealed. Notwithstanding this, it seems to us that the public interest requires that should be done, if only to allay the fears and suspicions which have already, possibly unnecessarily been aroused".
"My Lord, the one other matter which I would like to say on instructions from my client is that she is now instructing me that she will be seeking an order for exhumation for her son's body …"
"(1) A coroner may order the exhumation of the body of a person buried within his district where it appears to him that it is necessary for the body to be examined
(a) for the purpose of his holding an inquest into that person's death…
(2) The power of a coroner under this section shall be exercisable by warrant under his hand.
(3) No body shall be ordered by a coroner to be exhumed except under this section".
"Except in the cases where a body is removed from one consecrated place of burial to another by Faculty granted by the Ordinary for that purpose, it shall not be lawful to remove any body or the remains of any body which may have been interred in any place of burial without licence under the hand of one of Her Majesty's Principal Secretaries of State…; and any person who shall remove any such body or remains contrary to this enactment… shall on summary conviction [be guilty of an offence]".
Our normal practice in relation to obtaining consent applies in respect of applications made for private, personal, reasons by relatives or friends. The coroner's application was made for quite other reasons, where it is important to respect the views and interests of those who are usually close relatives or friends. We considered there to be a strong public interest in enabling the coroner to undertake the enquiries she considered necessary into the death of your son, including the re-examination of his remains. In the circumstances those reasons were judged to outweigh the need to obtain the consent of the next of kin or the grave owner…
The question of whether the public interest in an exhumation should prevail against objections from family members is a matter of discretion and judgment, not law. Under the provisions of the Burial Act 1857 The Secretary of State has been granted a wide discretion as to the circumstances in which an exhumation licence may be granted. Long-standing practice is to proceed as set out above, but it is open to The Secretary of State to decide differently if satisfied that the circumstances warrant a different approach. That a coroner is seized of the jurisdiction to investigate your son's death constitutes such circumstances.
In taking the decision to grant an exhumation licence in November 2006, we understood that you were aware that exhumation of your son's remains was likely and that you had not raised objections, even if you had not explicitly consented. We recognised, of course that the decision was likely to be painful, but came to the view that the public interest in a thorough investigation of the circumstances of your son's death, particularly given the seriousness of your allegations, could not be allowed to be prevented by objections of sentiment by family members".
"As my letter of 7 December explained, it was decided that [sic] to notify Petar Sutovic's family of the renewed application, the reasons for it, and ask for any objections to be submitted in writing within a month. Following receipt of your letter of 4 January we duly wrote on 10 January to Mrs Sutovic (as the next of kin of Petar Sutovic and the owner of the burial rights to the grave in which his remains are buried) and to the representatives of Mrs Sutovic's other son, Marko.
Mrs Sutovic responded, after requesting an extension to the time limit we had set, on 12 March. She made it clear that she would not give her consent to the exhumation of Petar's remains, or agree access to the grave. She was also not prepared to agree to the removal of the memorial which she had since had erected on the grave. She also set out her arguments why she considered that further examination of the remains was unnecessary and that there was sufficient evidence from the original investigation into the death and from the accommodation in which Petar was found in Belgrade to avoid the need for any further examination of his remains…"
"The Secretary of State has now considered the matter. As my letter of 24 August to the Coroner made clear, an exhumation licence under Section 25 of the Burial Act 1857 is more limited in scope and effect than a coroner's exhumation order. It creates no duty to exhume remains and merely protects from prosecution in circumstances where an offence would otherwise be committed. It does not affect any civil rights. For these reasons, long established practice has been not to issue an exhumation licence without the consent of the next of kin, the owner of burial rights, and the landowner.
The Secretary of State has given careful consideration to the reasons advanced by the Coroner for the exhumation of Petar Sutovic's remains. However, Mrs Sutovic is not prepared to give her consent to the exhumation and strongly objects to the proposal, indicating that it would cause her extreme distress. Furthermore, any such exhumation would necessarily require access to the grave, including the temporary removal of the memorial, which Mrs Sutovic is not willing to agree to. In these circumstances The Secretary of State has concluded that it would not be appropriate to issue an exhumation licence in this case. The application has therefore been refused.
Given Mrs Sutovic's opposition to the disturbance of her son's remains, an exhumation licence would provide insufficient authority to ensure that the exhumation could be undertaken, and could expose those seeking to access the grave and remove the memorial to the risk of civil proceedings. The Secretary of State has decided this would not be justified".
i) In balancing the fact that objection to the exhumation was raised by Mrs Sutovic, on the one hand, with, on the other hand, the reasons for the Claimant's application for the exhumation licence, The Secretary of State placed too much weight on the objection and too little weight on the reason for the application. In support of this ground the Claimant points to The Secretary of State's earlier position, stated in the letter dated 18 July 2007, in which the grant of the original licence was justified in the terms set out above. Further, in assessing what weight to place on Mrs Sutovic's objection, The Secretary of State failed to take account of the facts (a) that she had, herself, previously stated an intention to apply for an exhumation order and (b) she had not raised objection to the claimant's original application for an exhumation licence.
ii) In relying on and applying the "long established practice… not to issue any exhumation licence without the consent of the next of kin, the owner of the burial rights, and the land owner", The Secretary of State placed too much weight on that usual practice and thereby fettered his discretion. He failed to give any or sufficient consideration to the extent to which the usual practice should, or should not, be followed in the view of the reasons for the Claimant's application. The Claimant contends that had he done so, he would have concluded that the usual practice ought not to be followed in the circumstances of this case. In support of this contention, the Claimant again points to The Secretary of State's own earlier stated position, in the letter dated 18 July 2007.
iii) In placing reliance on the fact that a licence under Section 25 of the Burial Act 1857 "creates no duty to exhume remains and merely protects from prosecution in circumstances where an offence would otherwise be committed" The Secretary of State took account of or placed too much importance on a matter which was of no relevance to the Claimant's application. The Claimant was seeking the licence in order to obtain permission to exhume the deceased's body not an obligation to do so.
iv) In taking account of the risk of civil proceedings The Secretary of State failed to take account of the facts (a) that the grave owner, RBKC, did not object to the exhumation and (b) that Mrs Sutovic's burial rights in respect of the grave (and licence to use the grave) would not be interfered with by the exhumation. In support of this ground, the Claimant again points to The Secretary of State's own earlier stated position, in the letter dated 18 July 2007, in which the grant of the original licence was justified and it was said that:
"Other than in very rare circumstances, a grave owner does not purchase land but the right of burial in a given space, usually now for a limited period. "Grave Owner" is a commonly used term but is inaccurate. So far as we are aware, from information provided by the coroner's officer, in turn obtained from the Gunnersbury Cemetery manager, you own the lease and exclusive burial rights to your son's grave in the cemetery and that the land remains the property of the cemetery. Unless the cemetery authorities object, therefore access to the grave would not appear to constitute a trespass".
i) The Secretary of State had regard to all the material considerations in this case;
ii) The Claimant's grounds are essentially a challenge to the weight which The Secretary of State placed on the competing considerations. Weight is a matter for the decision maker;
iii) The Secretary of State's decision cannot be categorised as irrational or Wednesbury unreasonable;
iv) The claimant has an alternative and more effective remedy which she should be required to pursue before seeking judicial review of The Secretary of State's decision.
i) At page 25:
"It is the settled practice of the Home Office to require an application for removal to be made by or with the consent of the next of kin of the deceased… the general rule is not to grant a licence for removal unless the application is made by or with the written consent of the next of kin… it should however, be remembered this is a condition imposed by The Secretary of State not a statutory requirement, and he is at liberty to waive it in any exceptional case on good cause being shown for doing so";
ii) At page 62:
"If the owner of the grave in which a body is buried objects to removal this is necessarily a fatal objection to the issue to a licence. This rests simply on the fact that it is his grave and ought not to be interfered with. There is the further consideration that The Secretary of State's licence only protects persons acting under it from criminal proceedings for disturbing the remains of the deceased; it does not and cannot affect rights of property in any way and would not therefore deprive the owner of a grave which had been opened without his consent of his civil remedy for trespass".
i) The extent to which the exhumation was opposed by Mrs Sutovic and other members of the deceased's family;
ii) The full nature and extent of Mrs Sutovic's rights in respect of the deceased's grave and monument. While The Secretary of State had been aware of Mrs Sutovic's burial rights in July 2007, it was at that stage believed that she did not object to the exhumation, and the question whether exhumation might interfere with those rights had therefore not been considered in any depth. It was only subsequently that The Secretary of State became aware that Mrs Sutovic also had memorial rights;
iii) The impact of the exhumation on a neighbouring grave;
iv) The possibility of an alternative remedy, namely an application by the Claimant to the Administrative Court for directions regarding the exhumation, following the Court's order under Section 13 of the Coroners Act 1988.
Lord Justice Laws: