Crematoria – Funeral pyre – Provision of land — Claimant Hindu wanting to be cremated on open-air funeral pyre following death — Defendant local authority refusing application for provision of land — Whether crematorium including open crematorium — Whether refusal of land constituting breach of human rights – Claim dismissed
The claimant was an orthodox Hindu who wanted to have his body cremated on an open-air pyre following his death. He applied to the defendant local authority to provide land for an open-air funeral pyre. After explaining that, in India, such pyres were an integral component for the transmigration of peoples’ souls, and that the absence of this in Britain led bereaved families to suffer remorse, the claimant stated that dedicated grounds for traditional open-air funeral pyres were the only safeguard for sincere religious observants. The defendants responded that the Cremation Act 1902 prohibited funeral pyres and they could not consider the claimant’s request unless the law was changed.
The claimant commenced proceedings, challenging the defendants’ decision not to provide land for a funeral pyre. He also sought judicial review of the authority’s decision not to permit the funeral rites of Hindus who resided within its area to be observed or within the defendants’ crematoria.
The first intervener, a Sikh temple, intervened on the basis that Sikhs had traditionally cremated their dead on open-air funeral pyres. The second intervener charity combined social work with wildlife conservation and helped persons such as the claimant to obtain lawful access to the cremation or burial of human remains in natural circumstances. The secretary of state for justice, as an interested party, sought to justify the ban on open-air cremations on grounds of public safety, the protection of public health and the protection of public morals and the rights and freedoms of others.
The claimant contended that: (i) in the absence of clear words or by necessary implication, section 7 of the 1902 Act could not override his fundamental right to undertake an open-air funeral pyre in accordance with his religious or cultural beliefs; (ii) “crematorium” in regulation 13 of the Cremation (England and Wales) Regulations 2008 (SI 2008/2841) could be read as referring to an open crematorium; (iii) an interference with the manifestation of his religious beliefs could not be justified under Article 9 of the European Convention on Human Rights (ECHR); (iv) the defendants had breached Article 8 of the ECHR by preventing him from exercising his choice of a funeral rite, which did not accord with respect for his private and family life; and (v) he had been discriminated against by the prohibition imposed on open-air funeral pyres in breach of Article 14 of the ECHR.
Held: The claim was dismissed.
(1) The 1902 Act and the 2008 Regulations made it clear that open-air cremation was prohibited and that the legislation met the requirements of Articles 8 and 9 of the ECHR that matters be “prescribed by law”.
(2) “Crematorium” in regulation 13 could not be read as meaning an open crematorium, specifically designated as a regulated place for open-air pyres since a crematorium was defined as a building. The combined effect of the 1902 Act and the 2008 Regulations was clear: (i) cremation was the burning of human remains; (ii) cremations had to take place inside a crematorium; (iii) a crematorium was a building; and (iv) the burning of human remains other than in accordance with the 2008 Regulations was a criminal offence. Thus, the burning of human remains other than inside a building was an offence.
Further, the provisions of the 1902 Act and the 2008 Regulations were not discrete matters but were inextricably linked and existed together as a single scheme concerning the disposal of human remains by cremation. The requirements of section 2 of the 1902 Act and regulation 13 were both clear and integral to the legislative scheme. The requirement that the burning of human remains occurred inside a crematorium could not be interpreted away. To adopt a contrary meaning would be to cut across a fundamental feature of the legislation, contrary to the scheme of the 1902 Act and 2008 Regulations.
(3) The claimant’s rights under Article 9 of the ECHR had not bee violated. Although the 1902 Act and the 2008 Regulations stifled the claimant’s desire to have an open-air funeral pyre therefore interfered with his religious beliefs, the interested party had been entitled to conclude that the legislative framework was consistent with the mainstream cultural expectations of UK residents and secured the practical avoidance of likely offence and distress. It had also been within the remit of the interested party to conclude that many people would find the principle and the reality of cremation by open-air pyres to be offensive.
(4) The requirement that the cremation of human remains took place in a building, and the corresponding prohibition on open-air pyres, did not amount to an interference with the right to respect for privacy and family life within Article 8 of the ECHR since that provision did not comprise any general right of autonomy or self-determination. Cremation by means of an open-air pyre had a public character; it took place outside and in daylight and lay outside the private sphere of a person’s existence as protected by Article 8.
(5) The claimant’s argument that the prohibition on open-air funeral pyres was disproportionately prejudicial on ground of religion could not succeed. Without evidence on the issue of land, the failure to grant land or to acquire it outside the city, the court could not simply assume the disproportionately prejudicial effect that the law required for the purposes of Article 14 of the ECHR. The court accepted the defendants’ submissions that land that would meet the claimant’s requirements, such as being 2km from housing, with water and reasonably secluded, was not available within the city boundaries.
Ramby de Mello, Tony Muman and Martin Henley (instructed by JM Wilson Solicitors, of Birmingham) appeared for the claimant; Satvinder Singh Juss (instructed by Riaz Khan & Co, of Barnsley) appeared for the first intervener; Richard Drabble QC, Eric Fripp and Ellis Wilford (instructed by Simons Muirhead & Burton) appeared for the second intervener; John McGunness QC (instructed by the legal department of Newcastle City Council) appeared for the defendants; Jonathan Swift and Joanne Clement (instructed by the Treasury Solicitor) appeared for the interested party.
Eileen O’Grady, barrister
