A young man met his death in Belgrade in January 2004 and was repatriated to England shortly thereafter. He was buried in Gunnersbury Cemetery in Acton. An ‘open verdict’ which was recorded at a coroner's inquest held in September 2004 was overturned by the High Court in May 2006. A second inquest was ordered, to be undertaken by a different coroner, who formed the view that the deceased's body should be exhumed. A coroner has power to issue a warrant of exhumation under section 23 of the Coroners Act 1988. However, this power may only be exercised if the body in question is lying within the coroner's district, which it did not. Where, as here, a coroner is ordered by the Court to hold a fresh inquest under section 13, that coroner is treated as if he were the coroner for the district who held the original inquest. However, the body did not lie within that district either.

Accordingly the Coroner for the Eastern District of London applied to the Secretary of State for Justice (as he now is) for a licence under section 25 of the Burial Act 1857. A licence was granted but before it could be implemented it transpired that the views of the close relatives of the deceased had been sought. They were of the Serbian orthodox faith and regarded it as contrary to their religion for a body to be exhumed. The licence lapsed. The Coroner subsequently applied to the Minister for the licence to be reissued. He refused and the Coroner sought to challenge this refusal by way of judicial review. She also invited the High Court to exercise its inherent jurisdiction and order an exhumation. The deceased's relatives drew to the attention of the Court the fact that the deceased was buried in a portion of Gunnersbury Cemetery which had been consecrated in accordance with the rites of the Church of England. This had not previously been appreciated by the Coroner. Accordingly, irrespective of whether a licence was granted, no exhumation could take place in the absence of a faculty from the Chancellor of the Diocese of London.

The Divisional Court dismissed the Coroner's application. It noted that the Secretary of State had a long-standing general policy, but that he had become aware of a number of additional matters between the issuing of the original licence and his subsequent refusal to re-issue it. These included: opposition from the family; property rights of the mother concerning a memorial which she had caused to be erected over the grave; the impact of the proposed exhumation on a neighbouring grave; and the possibility of alternative remedy invoking the High Court's jurisdiction under section 13 of the Coroners Act 1988: R v Saunders (1719) 1 Strange 168, (1719) 93 ER 452. The appropriate defendant for the alternative remedy, however, would be the next of kin of the deceased and not the Secretary of State. The Court was not persuaded that it had any power to override the property rights of the deceased's mother, and he concluded that no useful purpose would be served by granting relief in these proceedings now that it had been established that a faculty was required. ‘It is not for this court’, he said, ‘to express views on matters which it is for the Chancellor of the Diocese to decide.’

Likewise, the Court was not persuaded that there was any fault in the reasoning of the Secretary of State, as the facts had changed from what he had understood them to be at the time that he granted the original licence. It was his duty to consider the application for re-issue in the light of the circumstances as he then knew them to be. The fact that he placed greater weight on the objections of the family was not a matter for criticism. There was no irrationality on his part. The Secretary of State did not pursue a claim for costs, but the Coroner was ordered to pay those of the deceased's relatives. [WA]