Queen's Bench Division Administrative Court
In the matter of an application for Judicial Review
B e f o r e :
| THE QUEEN (on the application of THE PLANTAGENET ALLIANCE LIMITED)
|- and -
|SECRETARY OF STATE FOR JUSTICE
|THE UNIVERSITY OF LEICESTER
|THE MEMBERS FOR THE TIME BEING OF THE CHAPTER, THE COUNCIL AND THE COLLEGE OF CANONS OF THE CATHEDRAL OF SAINT MARTIN LEICESTER
||First Interested Party
|THE MEMBERS FOR THE TIME BEING OF THE CHAPTER, THE COUNCIL AND THE COLLEGE OF CANONS OF THE CATHEDRAL AND METROPOLITAN CHURCH OF SAINT PETER YORK
||Second Interested Party
Crown Copyright ©
UPON the Claimant's application for (1) Permission to bring Judicial Review proceedings against the First and Second Defendants, (2) an extension of time to bring such proceedings pursuant to CPR rule 3.1(2)(a); and (3) a Protective Costs Order
AND UPON consideration of the Statement of Facts and Grounds for Judicial Review, the Acknowledgements of Service and Grounds for Resisting the Claim, the witness statements and exhibits and other documents lodged by the Claimant, the First Defendant, the Second Defendant, the First Interested Party and the Second Interested Party
IT IS HEREBY ORDERED AND DIRECTED BY THE HONOURABLE MR JUSTICE HADDON-CAVE THAT:
1 The Claimant's application for Permission to bring Judicial Review proceedings against the First and Second Defendant is granted on all Grounds.
2 Time for bringing such Judicial Review proceedings be extended as necessary.
3 The First and Second Defendant shall, within 21 days, in accordance with their respective duties of candour, each give disclosure of all correspondence, notes and other documents relevant to (i) the circumstances surrounding the original application and grant of the Licence and (ii) all subsequent discussions and exchanges concerning the remains of Richard III and their re-interment.
4 There shall be a Protective Costs Order whereby the First and Second Defendants shall be prevented from recovering their costs of these proceedings from the Claimant.
5 The Claimant's own costs of these proceedings shall be capped at a level to be set by the Court. The Claimant shall apply to Mr Justice Haddon-Cave sitting as the Vacation Judge in Court 37 in the week of 23rd September 2013 to set the cap level, on notice to the other parties.
6 The substantive hearing of these proceedings to be set down for hearing next term (estimate 1 day). Skeletons to be exchanged 1 week before the substantive hearing.
"A research excavation is underway to investigate the remains of Leicester's Franciscan Friary and also potentially locate the burial place of Richard III whose remains were interred here in 1485, although those may subsequently have been exhumed and thrown into the nearby River Soar after the Dissolution in 1538. It is proposed to exhume up to six sets of human remains for scientific examination".
(1) The Decision of the Secretary of State for Justice on 3rd September 2012 to grant the Licence "without consulting, or attaching requiring the licensee to consult, as to how [or where] the remains of Richard III should be appropriately re-interred in the event that they were found".
(2) The Decision of the Secretary of State for Justice on 4th February 2014 and subsequently "not to re-visit the grant of the Licence once it became clear that the University would not carry out an appropriate consultation".
(3) The Decision of the University of Leicester on 4th February 2014 "to begin making arrangements for the reinterment of the remains of Richard III at Leicester Cathedral".
Burial Act 1957
(1) There was a legitimate expectation that the Secretary of State would, prior to granting a Licence, consult widely to how, and where, Richard III's remains should be appropriately re-interred, in the event that they were discovered during the proposed archaeological dig.
(2) The category of appropriate consultees is potentially very wide and includes those listed by the Claimant, namely (i) the citizens of this country who have an interest in the place of reburial of the remains of a King of England; (ii) the living collateral descendants of Richard III; (iii) the wishes of Richard III himself, in so far as they can be ascertained or inferred; together with (iv) ecclesiastical bodies with an interest in the resting place of the remains of Richard III; (v) civic bodies with an interest in the remains of Richard III; and (vi) HM The Queen.
(3) The Secretary of State's duty to consult was non-delegable and, in any event, could not properly be delegated to a party or licensee who was not independent or had a personal interest in the outcome, such as the University of Leicester.
(4) The Secretary of State failed to carry out any, or any proper, consultation regarding the re-interment of Richard III's remains prior to issuing the Licence on 3rd September 2012.
(5) The Secretary of State failed, thereafter, to re-visit his decision to grant the Licence on or after 4th February 2013 once it became clear that (i) Richard III's remains had, indeed, be found; (ii) there was growing concern and controversy as to where they should be reburied; but (iii) the University of Leicester nevertheless intended to proceed with a re-interment in Leicester Cathedral without any consultation having first been carried out.
(6) The University of Leicester, as a responsible public body, should not have begun making arrangements for the re-interment of the remains of Richard III at Leicester Cathedral, prior to an appropriate consultation being carried out.
(1) "appropriate consultation" so that the views of individuals and groups with legitimate interests in those remains may be taken into account in any decisions;
(2) consultation of the "the general public" where appropriate;
(3) taking steps to trace and consult descendants of interred individuals "so that their view may be heard"; and
(4) taking steps to determine "the individual wishes of the dead".
"18. Ethical treatment of human remains involves making decisions that take into account, via appropriate consultation, the views of individuals and groups with legitimate interests in those remains. These interests include those of the dead themselves and their surviving family and descendants, the Church and other bodies responsible for the care of the dead, the general public, particularly those with direct links to the place of the burial, and the scientific research community, including archaeologists, osteologists, and medical and forensic scientists.
"20. Nevertheless, even for remains over 100 years old, where there is no legal obligation to trace the next of kin (Annex L1), it would be ethical to accord views of living close family members strong weight. When excavation of 18th- or 19th-century burial grounds is planned, reasonable steps, such as advertisements in local newspapers, should be taken at the start of project planning to alert local people who may be descendants of interred individuals so that their views may be heard.
21. The great majority of archaeological excavations, however, deal with the remains of long-dead individuals of unknown identity. Under these circumstances it is clearly impossible to trace living relatives or to determine the individual wishes of the dead (beyond the general ethos of the Christian theology under whose rites they were buried)."
(3) Failure to apply the Guidance
(4) Secretary of State's 'practice'
(5) Consultation idea dropped
(6) Public feeling
(7) Parliamentary debate
(8) Belated attempt at consultation
(9) Article 8
"Richard III was a Monarch of this country. He was the last Plantagenet King and the last King to die in battle. He was a person of great historical significance. He is part of our heritage. These facts make his discovery and final resting place a matter of national importance."
Disclosure and Duty of candour
Protective Costs Order
(1) The issues raised in these proceedings are of general public importance.
(2) The public interest requires that these issues are resolved.
(3) The Claimant is a campaigning body and has no real private or financial interest in the outcome of the case.
(4) Having regard to the relative financial resources of the Claimant and the Defendants and to the amount of costs that are likely to be involved, it is fair and just to make the order.
(5) If a Protective Costs Order is not made, the Claimant will probably discontinue the proceedings and will be acting reasonably in so doing.
Final comments and recommendation