A victory for diversity as High Court backs Asserson in coroner case

The High Court today (27 April 2018) ruled that the protocol issued by Coroner Hassell on 30 October 2017 that “No death will be prioritised in any way over any other because of the religion of the deceased or family” (the ‘Protocol’) was ‘unlawful’; ‘irrational’ and ‘discriminatory’. The validity of the Protocol (widely known as the ‘Cab Rank’ rule) was therefore struck down and quashed. This high-profile case has received support from the Prime Minister, Sadiq Kahn, the London Assembly and Jewish & Muslim leaders.

 Hassell will now need to return to her Inner North London coronial practice, and run it in accordance with English Law, which is designed to defend diversity.

The 34 page judgement by Lord Justice Singh, sitting with Mrs Justice Whipple, was unremitting in its criticism of Coroner Hassell. The words ‘inflexible’ ‘unlawful’ ‘over-rigid’ ‘discriminatory’ ‘incapable of rational justification’ and ‘misguided’ were just some of the epithets used by the Judges to describe either Ms Hassell, her Protocol, or both.

Ms Hassell cannot claim ignorance of the devastating effect which her Protocol had on Jews, Muslims, and others with a strong need for speedy burial. The Judges found that “it is very clear from the various materials submitted by the Defendant that she was acutely aware of the impact her policy might have on certain minority religious communities within her area.” So why did she not bother to get legal advice in the first place; and why did she not reconsider her Protocol once she was aware of the legal arguments against it. She had said she would reconsider, but failed to keep true to her word.

The Claimants were not seeking automatic priority. The Court confirmed: “we agree with the Claimants and the Chief Coroner that … there should be no rule of automatic priority for those seeking expedition on religious grounds.  That is not what the Claimants were seeking.”

Nor was the Claimant seeking to gain different treatment for any one particular group. They accepted that many groups might have a good reason to require a speedy burial, and thus need different treatment to others who do not need a speedy burial.

What the Claimants sought was that, in the exercise of her duty, Ms Hassell strikes a fair balance between the rights of the individual – in the Claimant’s case a religious need to bury quickly – and the interests of the community. Hassell completely failed to strike such a balance. As Singh LJ said:

“The fundamental flaw in the present policy adopted by the Defendant is that it fails to strike any balance at all, let alone a fair balance.”

 The European Convention on Human Rights (ECHR); the Equalities Act 2010; and the Human Rights Act 1998 all give a range of protections to different groups within society. Mr Grodzinski QC argued for the Claimant that Hassell’s Protocol manifestly breached this legislation, which underpins Britain’s dedication to supporting a diverse and pluralist society. The Court agreed.

The Court quoted from BBC v Secretary of State for Justice, where Singh J held “that the hallmarks of a democratic society are pluralism, tolerance and broad-mindedness …”

 At its heart the Court found that Hassell simply did not understand the importance of treating people differently when they have different characteristics. For example, to refer to one earlier case, a prisoner who is a Buddhist vegetarian will be given equal treatment if offered the same food as all other prisoners; but the effect on him will not be equal if that food is meat, which he cannot eat. He will starve. Other prisoners will not. LJ Singh held:

“What on its face looks like a general policy which applies to everyone equally may in fact have an unequal impact on a minority.  In other words, to treat everyone in the same way is not necessarily to treat them equally.  Uniformity is not the same thing as equality.”

The Judgement also relied on R (MA) v Secretary of State for Work and Pensions [2013] EWHC 2213 (Admin), at para. 38 where Laws LJ held:

Where … a single rule has disparate impact on one group as opposed to another – it is the disparate impact that has to be justified. … what must be justified is the failure to make a different rule for those adversely affected.”

Ms Hassell simply did not seem to understand this important point. She argued that treating everyone in an identical way was fair. In effect if someone has a religious need to bury early, and others don’t, then Hassell thought that the person with that need must just ‘wait his turn’ and damn the consequences.

“This is to take a wrong and unlawful approach to ‘fairness’” said Trevor Asserson, founder of law firm, Asserson, which acted for the Claimant, AYBS. He went on to say “The Court found against Hassell on every count, except for finding that she had considered the impact of her Protocol on Jews and Muslims. This was to damn with faint praise for the Court found “she did not recognise that impact as discriminatory as a matter of law.” In other words, she knew she was causing anguish to people, but was too ignorant of the law to understand that her conduct was not only lacking in any compassion, but was also discriminatory and unlawful.”

 This victory by AYBS is a victory for the cause of diversity throughout British Society. Everyone interested in pluralism, and intent on defeating discrimination, in all its forms, must rejoice at the Court’s firm and clear ruling” said Trevor Asserson.

Rabbi Asher Gratt, speaking for the AYBS, said: “This legal victory will bring immense relief for grieving families to bury their loved ones with respect and dignity, preventing further unnecessary anguish at the darkest moment of their lives.” He went on to say “Having twice been found guilty of acting unlawfully it’s high time for Hassell to move on and make way for a compassionate coronial service.”

Marie van der Zyl, said on behalf of The Board of Deputies of British Jews: “Senior Coroner Hassell must now consider her position. If she cannot carry out this basic function of her role, she must vacate her position.

Coroner Hassell showed a lack of judgment in singling out the Jewish Community to blame for her Protocol. She argued that the Protocol was necessary to enable her office to deal with what she referred to as “the noise arising from one Jewish death”. She also sought to rely on an anonymous and somewhat hysterical letter which accused the Jewish community of manipulating inter alia MPs, Local Authorities, and the Justice System. These arguments, which had no legal relevance, and were ignored by the Court, should never have been raised by Hassell in the first place.

Trevor Asserson, concluded: “The fact that Hassell chose to employ material of this type in her defence must raise a question as to whether she is a fit person to remain in post in Inner London North. Not only does it show poor judgment to rely on such sources, but also Hassell’s commitment to supporting pluralism must be questioned if she can associate with such views.”

The Court has set a short timetable to decide on the question of who pays the legal costs of this action. Ms Hassell has claimed to be neutral, which could excuse her from having to pay costs. However the Claimants will argue that she played an active role in the proceedings and was not neutral. The costs decision is likely to be made within a few weeks.

 

The Legal Team:

Lead Counsel:  Sam Grodzinski QC, Blackstone Chambers

Khawar Qureshi QC, Serle Court

Benjamin Tankel, 39 Essex Chambers

Instructing Solicitors     Trevor Asserson and Avital Berger of Asserson Law Offices

 For further background to the case see our earlier news story here

News coverage of the case and Asserson’s role in it can be found at:

Times newspaper coverage

Scottish Legal coverage

The Guardian newspaper coverage

Jewish Chronicle coverage

Funeral Service Times coverage

Islington Tribune coverage

Irish Legal coverage

The Lawyer coverage

More extended related articles on the case and the issues raised have also been published:

Lawyer Monthly article by Trevor Asserson and Avital Berger