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Richard III - Finally Laid to Rest

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

King Richard III: And buried, gentle Tyrrel?

William Shakespeare

Richard III (allegedly) gave orders to Sir James Tyrell to kill the Princes in the Tower; the above-stated quote demonstrates Shakespeare’s portrayal of Richard III’s paranoia and mental instability as he asks Tyrrel whether the murdered Princes were subsequently buried. Fast-forward over four hundred years to today, and the High Court have recently decided on the validity of the process that had been utilised to determine where the remains of Richard III, the last King to die on the battlefield and whose remains were discovered in a car park in Leicester on 5th September 2012, should be reinterred. This article focuses on what the High Court were asked to review, and how the High Court’s decision has resulted in the determination of where Richard III is to be re-interred. 

For a superb historical summary of what lead Richard III to be located in a car park in Leicester, please refer to paragraphs [8]-[27] of the High Court’s judgment in The Queen (on the application of Plantagenet Alliance LTD) v Secretary of State for Justice and Others [2014] EWHC 1662.

The Facts

In accordance with s. 25 of the Burial Act 1857, those seeking to exhume human remains must apply to the Secretary of State for Justice for an exhumation licence. The exhumation licence allows the applicant to remove the human remains, and will similarly specify what area the remains are to be exhumed from, and other stipulations, such as what is to be done with the remains once they have been discovered.

The car park in which the King’s remains were discovered is owned by Leicester City Council (“the Council”); the University of Leicester (UoL) were involved with the exhumation process by, amongst other things, providing funding. The Council and UoL are the defendants in this case. A member of the Richard III Society (“the Society”), Ms Philippa Langley, had a desire to find the King’s body. Ms Langley worked in partnership with the University of Leicester Archaeology Services (ULAS) to carry out the necessary steps to exhume the King’s remains.

In summary, Ms Langley and ULAS obtained necessary permissions to excavate the site where it was believed the King’s remains would be located. On 24th August 2012, human bone was discovered, and digging was stopped. Upon this discovery, Mr Richard Buckley, of ULAS, applied to the Burials Team of the Ministry of Justice (MoJ) for an exhumation licence. The application detailed that, should the remains be identified as those of the King then they were ‘to be reinterred at St Martin’s Cathedral, Leicester’ (paragraph [46]). The MoJ approved this application and granted the exhumation licence for the removal of remains on 3rd September 2012, which included a stipulation detailing what should become of the discovered remains. Notably, and as detailed by the High Court in their judgment at paragraph [47], the licence contained no requirement for public consultation.

On the 5th September 2012 two skeletons were unearthed. On 4th February 2013, following DNA testing, UoL announced that one of these skeletons was that of Richard III.

The claimant in the case is The Plantagenet Alliance, which was created by collateral descendants of Richard III, including Mr Stephen Nicolay, the 16th great-nephew of Richard III. The claimant’s aim throughout the legal proceedings has been the re-interment of the King’s remains at York Minster, summarily because Richard III was the last King of the House of York. Specifically, the claimant sought to challenge the Secretary of State for Justice’s granting of an exhumation licence to the defendants without consultation on how the King’s remains should be appropriately re-interred in the event that they were found. Additionally, the claimant challenged why the Secretary of State for Justice did not revisit the granting of the exhumation licence, and lack of any “consultation condition”, following confirmation that the King’s remains had been discovered on 4th February 2012.

Accordingly, the task for the High Court was to determine whether the issuing of the exhumation licence was lawful: did the licence omit a duty to consult interested parties on the appropriate re-interment of the King’s remains?

Judicial Review

The standing (locus standi) of the claimant was readily identified by the High Court. When applying for judicial review, a claimant must have ‘sufficient interest in the matter to which the application relates’ in accordance with s. 31(3) of the Senior Courts Act 1981. This was not, however, through the claimant’s collateral relation to Richard III, but due to the public interest present in the claim; the claimant had standing as a public interest litigant. Indeed, the Ministry of Justice’s paper, Judicial Review: Proposals for further reform states at paragraph [74] that the sufficient interest test has become a ‘relatively low hurdle for potential claimants to overcome’. Nonetheless, the introduction of that paper reminds us that:

Judicial review is a critical check on the power of the State, providing an effective mechanism for challenging the decisions, acts or omissions of public bodies to ensure that they are lawful.

As noted in the High Court’s judgment at paragraph [88], s. 25 of the Burial Act 1875 provides an ‘ostensibly untrammelled power to the Secretary of State’ to grant an exhumation licence. Accordingly, in absence of a statutory procedure for the Secretary of State for Justice to follow in making his decision, it is the duty of the Common Law to ensure that the requirements of fairness are met. It is, of course, well established that Parliament does not legislate in a vacuum, and that the ordinary principles of the common law will apply to statutes (per Lord Browne-Wilkinson, Pierson v Secretary of State for the Home Department [1998] AC 539). These “ordinary principles” refer to the principles of natural justice, which act as a shield and a sword against an arbitrary use of power by one over another: fairness.

This principle of fairness has been present in English Common Law for centuries, and Lord Bridge’s judgment in Lloyd v McMahon [1987] 1 AC 625 summarises perfectly, as referred to by the High Court at paragraph [85], its applicability during judicial review of decisions made by those that are to be held accountable:

[I]t is well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. (Emphasis added).

It is accordingly the duty of the court to muster their intuitive judgment in determining whether fairness has been exercised. Lord Mustill’s guidance in R (Doody) v Secretary of State for the Home Department [1994] 1 AC 531 demonstrates a requirement upon the court to consider:

  1. That the standards of fairness are not immutable;
  2. That the determination of fairness will depend upon the context of the specific case before the court, i.e. each case is to be determined on its merits;
  3. The language and context of the statutory provision allowing for the decision that is under review; and
  4. That fairness will usually require the party adversely affected by the decision being able to adequately voice their arguments in favour of a result that is more favourable to them.

On that basis, it was for the High Court to determine in this case whether the principle of fairness imputed a duty for a consultation of the re-interment of the King’s remains to take place before or after the Secretary of State for Justice exercised his power under s. 25 of the Burial Act 1875 to grant the exhumation licence to the defendants.

Haddon-Cave J stated in Harrow Community Support Limited) v The Secretary of State for Defence [2012] EWHC 1921 that a ‘duty to consult does not arise in all circumstances. If this were so, the business of government would grind to a halt’. Nevertheless, where there is such open statute providing for the exercise of discretion in decision making, it was held by Lord Loreburn in Board of Education v Rice [1911] AC 179 that the person or body making the decision must act fairly and listen to both sides affected by the decision.

The High Court decided that there was no duty upon the Secretary of State to consult either before the granting of the exhumation licence, or following the DNA confirmation on 4th February 2013. A requirement for a consultation before the granting of the exhumation licence as to where the King’s remains should be reinterred would have been ‘premature and unnecessary’ (paragraph [128]). The High Court identified that if a duty to consult prior to the granting of the exhumation licence was found, then the quashing of the exhumation licence granted on the 3rd September 2012 would result in the remains having been removed without an exhumation licence, which amounts to a criminal offence. Moreover, to require the court to sever the exhumation licence to allow for the insertion of a condition requiring consultation to take place before re-interment, but after identification of the remains being those of the King, would go beyond the powers of the court, ‘usurping the powers of the MoJ’ (paragraph [129]). More simply, however, the High Court was of the opinion that the application for the exhumation licence was ‘in line with best practice, commanding local, Church, Society and Royal support’ (paragraph [128]).

The possibility of creating this procedural absurdity proves to be the biggest downfall in the claimant’s submissions. The application made by Mr Buckley was based upon proper discussions with Ms Langley, who had received advice from the Burials Team at the MoJ and had sought advice from all parties involved with the discovery of the remains. All parties involved were contented that the remains, should they be identified, were to be reinterred at Leicester Cathedral. At the time the exhumation licence was granted, that decision was unequivocally fair.

Crucially, (see paragraph [155]) the court was asked to consider whether the Secretary of State was able to arrive at a rational conclusion based on the material that he had before him. The court must firstly determine the materials used by the Secretary of State for Justice in making his decision, and then, secondly, determine whether it was rational to arrive at this decision as a result of using this material.

This is known as the “Tameside duty”, and this derives from the decision of the House of Lords in Secretary of State for Education and Science v Tameside [1977] AC 1014. The court must ask the question, as Lord Diplock did in that case, of whether the Secretary of State asked himself:

[T]he right question and [had] take[n] reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly?

Where the Secretary of State has a wide discretion in making their decision, such as that seen under s. 25 of the Burial Act 1875, it is vital that all relevant materials have been considered to allow the Secretary of State to arrive at a rational decision. For example, the wide discretion of the Secretary of State for the Home Department when determining the tariffs of imprisonment for Robert Thompson and Jon Venables received extensive review by the House of Lords and the decision was ultimately quashed.

Counsel for the claimant, however, failed in their attempts to utilise the Tameside duty as a means for requiring a duty of the Secretary of State for Justice to provide a consultation on the re-interment of the King. The Tameside duty focuses on whether the decision arrived at was a rational one only (paragraph [137]). On analysis, it was determined that the Secretary of State for Justice was, amongst other factors, aware that Leicester had been identified as the place for re-interment by the parties involved in the original discovery, that Leicester Cathedral was near to the battlefield where the King and his men were killed, and that the Society which had been most concerned for the King’s reputation was in favour of Leicester Cathedral being the place of re-interment. Accordingly, the High Court could safely come to the decision that

The fact that some sort of consultation, or further inquiries, might have been possible or desirable, does not mean that no reasonable or rational decision-maker could have been satisfied on the basis of the information already to hand. (Paragraph [145]).

Whilst I can accept that it would have been premature to require a consultation prior to the granting of the exhumation licence, it is, admittedly, difficult to comprehend why no consultation was had on the whole. Firstly, the Secretary of State for Justice has the ability to amend the conditions of the exhumation licence, as is implied by the uncertainty of what remains may be exhumed, which is noted by the High Court at paragraph [124]. Secondly, the MoJ were prepared to have a meeting concerning the re-interment of the King’s remains, the members of which were to include representative from York City Council, Leicester City Council, and the Richard III Society. However, this was not to amount to a consultation per se, but simply a means of bringing experts together to explain the re-interment of the King.

Unfortunately for the claimant, the matter boils down to one of procedural simplicity as referred to earlier: without the granting of the licence in the first instance, the remains would never have been discovered, and for the court to interfere with the conditions of the exhumation licence would usurp the powers of the MoJ, and extend the power of the judiciary without precedent. The great Lord Bingham stated that ‘[i]t is generally desirable that decision-makers should be reasonably receptive to argument’. Yet the power of the court in such cases of judicial review is to determine only whether the decision arrived at was so unfair as to require it to be void (Ridge v Baldwin [1963] UKHL 2).

Whilst a consultation following confirmation that the remains found were in fact those of Richard III would have been desirable, it is understandable that there is not sufficient reason to create further litigation of the sort that would ensue should the granting of the exhumation licence be quashed, or for the judiciary to act beyond its constitutional boundaries. This feeling is pertinently encapsulated in the closing remarks of the High Court’s decision not to interfere with the decisions in question:

… [I]t is time for Richard III to be given a dignified reburial, and finally laid to rest.

Further Reading

Bingham LJ ‘Should public law remedies be discretionary?’ [1991] PL 64

BBC News, ‘Richard III reburial court bid fails’

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Tagged: Constitution, Judicial Review

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