Cremation – Appellant Hindu wanting to be cremated on open-air funeral pyre after death in accordance with religious beliefs – Respondent local authority refusing to provide land for that purpose on ground that open-air cremation prohibited by relevant legislation – Cremation Act 1902 – Whether structure designed for open-air cremations a “building” with section 2 of 1902 Act – Appeal allowed
The appellant was an orthodox Hindu who wanted to be cremated on an open-air pyre after his death in accordance with his religious beliefs. He applied to the respondent local authority, asking them to dedicate certain out-of-town land for that purpose. The respondents refused the request on the ground that open-air cremation was prohibited by the relevant legislation. The prohibition was set out in the Cremation Act 1902, section 2 of which defined “crematorium” to mean a building fitted with appliances for the purpose of burning human remains, and in the Cremation (England and Wales) Regulations 2008 (SI 2008/2841).
The appellant challenged the respondents’ decision by way of judicial review. The secretary of state for justice, as an interested party, sought to justify the ban on grounds of public safety, the protection of public health and public morals and the rights and freedoms of others. Various parties, including the Equality and Human Rights Commission, intervened in the proceedings. The appellant contended that an interpretation of the legislation that precluded open-air cremation would contravene his rights under Articles 8, 9 and 14 of the European Convention on Human Rights.
Dismissing the claim, the High Court held that the 1902 Act and the 2008 Regulations prohibited open-air cremation and that the legislation met the requirements of the Convention: see [2009] EWHC 978 (Admin); [2009] PLSCS 151.
On appeal, the appellant accepted that his religion did not require an open-air pyre and that a cremation within a structure, on a grate with a tray to collect the ashes, was acceptable provided that it was carried out by means of traditional fire rather than electricity and the sun could shine on the body while it was being cremated; he proffered examples of such structures in India and also one in Spanish Morocco.
Held: The appeal was allowed.
The combined effect of the 1902 Act and the 2008 Regulations was that a cremation could take place only within a structure that: (i) was a building; (ii) was fitted with appliances for the purpose of burning human remains; (iii) had been constructed in a location that satisfied the section 5 requirement against proximity to a dwelling or highway; and (iv) the opening of which had been notified to the secretary of state under regulation 13. None of those four requirements, when construed in accordance with ordinary principles of interpretation, prevented the appellant’s wishes as to the cremation of his remains from being accommodated.
The appellant’s requirements presented no problem in terms of (ii) to (iv). Moreover, a cremation that accorded with the appellant’s beliefs could reasonably be achieved in a structure that was a “building” within the Act, notwithstanding the need to have a substantial aperture to enable sunlight to fall on the body. The word “building”, as used in ordinary language, described a wider range of structures than simply an enclosure of brick or stonework covered by a roof: obiter statement of Lord Esher MR in Moir v Williams [1892] 1 QB 264 not followed. The wider meaning was not restricted by the context in which the word was used in the statute. An Act introduced primarily to regularise and ensure conformity in cremations should be given a generous rather than a restrictive effect. The Act was not meant to ensure that cremations were performed so as to be invisible to the public. Had that been intended, some statement or provision to that effect would have been included and the court could not imply into the Act a specific requirement as to precluding public visibility where none had been expressed. A structure would be a “building” within the Act provided that it was relatively permanent and substantial, so that it could be said to have been “constructed” and could normally be so described. The evidence indicated that, in India, cremations occurred within a structure that had a solid roof, supported on columns without walls. The structures were substantial, solid and relatively permanent. Those structures, and the Moroccan structure, were “buildings” within section 2 of the 1902 Act.
Ramby de Mello and Tony Muman (instructed by JM Wilson Solicitors, of Birmingham) appeared for the appellant; John McGuinness QC (instructed by the legal department of Newcastle City Council) appeared for the respondents; Jonathan Swift and Joanne Clement (instructed by the Treasury Solicitor) appeared for the interested party; Satvinder Singh Juss appeared pro bono for the first intervener; Richard Drabble QC, Eric Fripp and Ellis Wilford (instructed by Simons Muirhead & Burton) appeared for the second intervener; Helen Mountfield (instructed by the Equality and Human Rights Commission) appeared for the third intervener; Adrian Berry appeared pro bono for the fourth intervener by written submissions.
Sally Dobson, barrister