Royal Courts of Justice
Strand, London, WC2A 2LL
Before :
LORD JUSTICE LAWS
MR JUSTICE TUGENDHAT
Between :
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R (on the application of) HM Coroner for the Eastern District of London |
Claimant |
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- and - |
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The Secretary of State for Justice and Susan Sutovic, Velisa Sutovic and Marko Sutovic |
Defendant |
Interested Parties
Ms Alison Hewitt (instructed by London Borough of Waltham Forest) for the Claimant
Mr Paul Brown QC (instructed by Treasury Solicitors) for the Defendant
Mr Mark Hill QC and Leslie Thomas (instructed by Sutovic and Hartigan) for the 3 rd interested party
The 1 st and 2 nd interested parties appeared in person
Hearing date: 27 July
Judgment
Mr Justice Tugendhat :
The Claimant is the Coroner for the Eastern District of London. She has been granted permission to challenge the decision of The Secretary of State for Justice not to re-issue a licence under Section 25 of the Burial Act 1857 for the exhumation of Petar Sutovic (“the deceased”) who died in Belgrade on 27 January 2004, aged 24 years. The decision was notified to her in a letter dated 15 May 2008 (“the Decision Letter”).
We heard argument from Miss Hewitt for the Claimant and did not require submissions from The Secretary of State or the Interested Parties. After giving these parties an opportunity to add what they wished to say, we indicated that we would refuse the Claimant’s applications for reasons that would be handed down later. These are the reasons.
The deceased was a British citizen. His body was returned to the district of the North London Coroner, who assumed jurisdiction once the presence of the body in his district was reported to him.
On 27 September 2004 the North London Coroner returned an open verdict (“the original inquest”). The injury causing death was described as “morphine poisoning”. Under the heading “time, place and circumstances at or in which injury was sustained”, the North London Coroner recorded:
“In the early hours of 27 January 2004 the deceased was seen lifeless at his mother’s flat in Belgrade. There was no evidence as to the exact circumstances surrounding the death. He had previously been a drug abuser but his mother said that recent drug screens were negative”.
The deceased’s mother, Mrs Sutovic, is a solicitor in London. She is the First Interested Party in the present proceedings. She commenced two sets of proceedings, one in December 2004 and the second in April 2005. These came before this court and judgment was handed down on 17 May 2006 Sutovic v HM Coroner for North London [2006] EWHC 1095 (Admin). The first set of proceedings was an application for judicial review of the North London Coroner’s verdict, on the grounds of procedural irregularity and insufficiency of enquiry. That claim failed. The second set of proceedings was an application pursuant to Section 13 of the Coroners Act 1988. Mrs Sutovic contended that as a result of evidence which she had by then obtained, it was both necessary and desirable in the interests of justice that another inquest should be held.
The judgment of the court, handed down by Moses LJ, included the following at paras 95 to 99:
“95. Whilst, on the state of the evidence at present, any other verdict than an open verdict may seem unlikely, we are persuaded that in the light of the evidence which has emerged since the coroner’s verdict a fresh inquest should be ordered….
97. In the present case in the inquest verdict the coroner did record some circumstances… and in particular that there was no evidence as to the exact circumstances surrounding the death. But it appears that there is evidence of at least some of the circumstances surrounding the death. Those circumstances have never been fully investigated and indeed could not be investigated since that evidence had not yet emerged, at the time of the verdict on 27 September 2004. The evidence includes the report of the Serbian Ministry of Interior Affairs dated 11 April 2005, the reports of doctors Milosavljevic and Gavalas as to the appearance of the deceased and to the presence of blood at the scene.
98. If, after examination of the circumstances at a fresh inquest, it emerges that the deceased had been treated with violence at the time of his death, even if that only leads to another open verdict, that seems to us to be a conclusion very different from that which already had been reached…. The evidence which has now emerged may cast a very different light upon the circumstances of Petar Sutovic’s death. In those circumstances we would allow the application under Section 13 and order a fresh inquest before a different coroner.
99. We should emphasise that our conclusion is based on a very small amount of the material before us and despite the over abundance of argument, evidence and experts’ reports. It will be for the coroner conducting a full and fair fresh inquest to sift that which is of use and that which is without foundation. The claimant’s grief deprived her of the ability to do so in prosecuting either the judicial review proceedings or the claim under Section 13 of the 1988 Act. Many of her concerns are not legitimate and have been fuelled by experts reports, some of which we consider are flawed for the reasons we have set out, in particular the apparent non disclosure to those instructed by or on behalf of the claimant of the Serbian Ministry of Interior Affairs’ report demonstrating the inadequacies of the original investigation and the fact that the scene of the death was not sealed. Notwithstanding this, it seems to us that the public interest requires that should be done, if only to allay the fears and suspicions which have already, possibly unnecessarily been aroused”.
When the Claimant considered the evidence and documents, she concluded that two matters were of particular importance. They were first, whether the deceased, who allegedly had a history of abusing drugs, was doing so at the time of his death and, second whether the deceased had been assaulted and had suffered facial injuries at the time of his death. The Claimant decided that in order to enquire properly into these two issues a further post-mortem examination of the deceased’s body was needed. Such examination would enable samples of the deceased’s hair, nails and muscle/tissue to be taken which could be analysed in order to throw light on his use of drugs, both legal and illegal, for a period of up to eight months preceding his death. It would also enable an x-ray to be taken of the deceased’s skull, which would assist the pathologist and the Claimant in considering whether he suffered facial injuries at the time of his death.
The deceased is buried in the Gunnersbury Cemetery in Acton. This is owned and run by the Royal Borough of Kensington and Chelsea (“RBKC”). RBKC raised no objection to the exhumation of the deceased’s body taking place, at least in the first instance. The Claimant did not anticipate that Mrs Sutovic would object to the proposed exhumation either. The transcript of the post judgment discussion and ruling on 17 May 2006 records that counsel then instructed on her behalf by the firm of solicitors of which she is a partner said this:
“My Lord, the one other matter which I would like to say on instructions from my client is that she is now instructing me that she will be seeking an order for exhumation for her son’s body …”
The circumstances in which the Claimant applied for a licence from The Secretary of State in this case are unusual, if not unique. In almost all cases in which a coroner wishes to exhume a body the coroner can do so by exercising the power in Section 23 of the Coroners Act 1988 to issue a warrant of exhumation. However, that power can be used only if the body in question is lying within the coroner’s district. The section reads:
“(1) A coroner may order the exhumation of the body of a person buried within his district where it appears to him that it is necessary for the body to be examined
(a) for the purpose of his holding an inquest into that person’s death…
The power of a coroner under this section shall be exercisable by warrant under his hand.
No body shall be ordered by a coroner to be exhumed except under this section”.
Gunnersbury Cemetery in Acton does not lie within the Claimant’s district. Section 13(3) of the Act would normally assist in such a situation, as it provides that a coroner who is ordered by the court to hold a fresh inquest under Section 13 should be treated “as if he were the coroner for the district” who held the original inquest. However, this provision did not assist the Claimant, as Gunnersbury Cemetery does not lie within the North London Coroner’s district either. It lies within the district of the West London Coroner. Why it was that the Claimant, rather than the West London Coroner, was nominated to hold the fresh inquest is not something about which any information has been put before the court.
In October 2006 the Claimant applied to the Department for Constitutional Affairs (the predecessor of The Ministry of Justice) for a licence under Section 25 of the Burial Act 1857. That section provides as follows:
“Except in the cases where a body is removed from one consecrated place of burial to another by Faculty granted by the Ordinary for that purpose, it shall not be lawful to remove any body or the remains of any body which may have been interred in any place of burial without licence under the hand of one of Her Majesty’s Principal Secretaries of State…; and any person who shall remove any such body or remains contrary to this enactment… shall on summary conviction [be guilty of an offence]”.
On 14 December 2006 the Claimant was granted a licence to exhume the deceased’s body. The licence was subject to certain conditions, and was to expire on 5 March 2007. The Claimant made arrangements for the exhumation to take place on 8 February 2007. On 25 January 2007 Irwin Mitchell, then acting as solicitors for Mrs Sutovic, wrote to the claimant confirming that Ms. Sutovic refused to allow the exhumation to go ahead. On 5 February 2007, however, Mrs Sutovic attended at the Coroner’s Court in Walthamstow together with the deceased’s father (the Second Interested Party in the present proceedings) and the deceased’s brother (the Third Interested Party in the present proceedings). The Claimant was informed that the Second and Third Interested Parties had only very recently learnt of the planned exhumation, and they needed time to come to terms with the prospect, and to prepare the deceased’s grandmother. The Second Interested Party states that he made clear at that meeting that he strongly opposed the exhumation of the deceased. The Claimant spoke to Mr Clifford of the Defendant, with whom she had been corresponding, and The Secretary of State agreed that a postponement of the exhumation was permissible. In consequence of these events the licence expired on 5 March 2007, before an exhumation took place.
On 23 March 2007 Irwin Mitchell, then acting as solicitors for Mrs Sutovic, wrote to the claimant informing her that Mrs Sutovic did not agree to the deceased’s body being exhumed at any time in the future. They added that the deceased was a practising Serbian orthodox and that his mother had informed them that it would be against his religion to exhume his body. His mother did not wish to go against her son’s belief or that of the church.
On 4 April 2007, Mrs Sutovic by then acting in person wrote to the Claimant. She complained of what she said was a failure by the Claimant or anyone else to examine the physical evidence and she made clear her objection to exhumation of her son’s body.
On 10 April 2007 the Claimant wrote to the Department of Constitutional Affairs requesting that the exhumation licence be re-issued, at the same time informing the Department of the objection of Mrs Sutovic.
Following a telephone call, and a letter from Mr Clifford dated 5 February 2007, on 1st March 2007 Mrs Sutovic wrote to Mr Clifford raising a number of questions. He replied to her on 18 July 2007. Two passages from that letter are as follows:
“Normal practice
Our normal practice in relation to obtaining consent applies in respect of applications made for private, personal, reasons by relatives or friends. The coroner’s application was made for quite other reasons, where it is important to respect the views and interests of those who are usually close relatives or friends. We considered there to be a strong public interest in enabling the coroner to undertake the enquiries she considered necessary into the death of your son, including the re-examination of his remains. In the circumstances those reasons were judged to outweigh the need to obtain the consent of the next of kin or the grave owner…
Public interest
The question of whether the public interest in an exhumation should prevail against objections from family members is a matter of discretion and judgment, not law. Under the provisions of the Burial Act 1857 The Secretary of State has been granted a wide discretion as to the circumstances in which an exhumation licence may be granted. Long-standing practice is to proceed as set out above, but it is open to The Secretary of State to decide differently if satisfied that the circumstances warrant a different approach. That a coroner is seized of the jurisdiction to investigate your son’s death constitutes such circumstances.
In taking the decision to grant an exhumation licence in November 2006, we understood that you were aware that exhumation of your son’s remains was likely and that you had not raised objections, even if you had not explicitly consented. We recognised, of course that the decision was likely to be painful, but came to the view that the public interest in a thorough investigation of the circumstances of your son’s death, particularly given the seriousness of your allegations, could not be allowed to be prevented by objections of sentiment by family members”.
In these proceedings the Claimant applies for a quashing order in respect of The Secretary of State’s decision not to grant a fresh licence, followed by mandatory orders directing him to grant such a licence to the Claimant, or to reconsider the Claimant’s application for such a licence. Other applications which the Claimant makes in these proceedings are for an order, if needed, granting permission to the Claimant to exhume the body of the deceased, and an order permitting a post-mortem of the body of the deceased to take place outside the Claimant’s own jurisdiction and within the district of Her Majesty’s Coroner for West London.
The reasons given by The Secretary of State for his decision, as set out in the Decision Letter, are introduced as follows:
“As my letter of 7 December explained, it was decided that [sic] to notify Petar Sutovic’s family of the renewed application, the reasons for it, and ask for any objections to be submitted in writing within a month. Following receipt of your letter of 4 January we duly wrote on 10 January to Mrs Sutovic (as the next of kin of Petar Sutovic and the owner of the burial rights to the grave in which his remains are buried) and to the representatives of Mrs Sutovic’s other son, Marko.
Mrs Sutovic responded, after requesting an extension to the time limit we had set, on 12 March. She made it clear that she would not give her consent to the exhumation of Petar’s remains, or agree access to the grave. She was also not prepared to agree to the removal of the memorial which she had since had erected on the grave. She also set out her arguments why she considered that further examination of the remains was unnecessary and that there was sufficient evidence from the original investigation into the death and from the accommodation in which Petar was found in Belgrade to avoid the need for any further examination of his remains…”
After setting out that background, the letter continued with the reasons for the decision, as follows:
“The Secretary of State has now considered the matter. As my letter of 24 August to the Coroner made clear, an exhumation licence under Section 25 of the Burial Act 1857 is more limited in scope and effect than a coroner’s exhumation order. It creates no duty to exhume remains and merely protects from prosecution in circumstances where an offence would otherwise be committed. It does not affect any civil rights. For these reasons, long established practice has been not to issue an exhumation licence without the consent of the next of kin, the owner of burial rights, and the landowner.
The Secretary of State has given careful consideration to the reasons advanced by the Coroner for the exhumation of Petar Sutovic’s remains. However, Mrs Sutovic is not prepared to give her consent to the exhumation and strongly objects to the proposal, indicating that it would cause her extreme distress. Furthermore, any such exhumation would necessarily require access to the grave, including the temporary removal of the memorial, which Mrs Sutovic is not willing to agree to. In these circumstances The Secretary of State has concluded that it would not be appropriate to issue an exhumation licence in this case. The application has therefore been refused.
Given Mrs Sutovic’s opposition to the disturbance of her son’s remains, an exhumation licence would provide insufficient authority to ensure that the exhumation could be undertaken, and could expose those seeking to access the grave and remove the memorial to the risk of civil proceedings. The Secretary of State has decided this would not be justified”.
It is the Claimant’s case in the present proceedings that it was irrational and/or Wednesbury unreasonable for The Secretary of State to refuse to re-issue the exhumation licence for one or more of the following reasons.
In balancing the fact that objection to the exhumation was raised by Mrs Sutovic, on the one hand, with, on the other hand, the reasons for the Claimant’s application for the exhumation licence, The Secretary of State placed too much weight on the objection and too little weight on the reason for the application. In support of this ground the Claimant points to The Secretary of State’s earlier position, stated in the letter dated 18 July 2007, in which the grant of the original licence was justified in the terms set out above. Further, in assessing what weight to place on Mrs Sutovic’s objection, The Secretary of State failed to take account of the facts (a) that she had, herself, previously stated an intention to apply for an exhumation order and (b) she had not raised objection to the claimant’s original application for an exhumation licence.
In relying on and applying the “long established practice… not to issue any exhumation licence without the consent of the next of kin, the owner of the burial rights, and the land owner”, The Secretary of State placed too much weight on that usual practice and thereby fettered his discretion. He failed to give any or sufficient consideration to the extent to which the usual practice should, or should not, be followed in the view of the reasons for the Claimant’s application. The Claimant contends that had he done so, he would have concluded that the usual practice ought not to be followed in the circumstances of this case. In support of this contention, the Claimant again points to The Secretary of State’s own earlier stated position, in the letter dated 18 July 2007.
In placing reliance on the fact that a licence under Section 25 of the Burial Act 1857 “creates no duty to exhume remains and merely protects from prosecution in circumstances where an offence would otherwise be committed” The Secretary of State took account of or placed too much importance on a matter which was of no relevance to the Claimant’s application. The Claimant was seeking the licence in order to obtain permission to exhume the deceased’s body not an obligation to do so.
In taking account of the risk of civil proceedings The Secretary of State failed to take account of the facts (a) that the grave owner, RBKC, did not object to the exhumation and (b) that Mrs Sutovic’s burial rights in respect of the grave (and licence to use the grave) would not be interfered with by the exhumation. In support of this ground, the Claimant again points to The Secretary of State’s own earlier stated position, in the letter dated 18 July 2007, in which the grant of the original licence was justified and it was said that:
“Other than in very rare circumstances, a grave owner does not purchase land but the right of burial in a given space, usually now for a limited period. “Grave Owner” is a commonly used term but is inaccurate. So far as we are aware, from information provided by the coroner’s officer, in turn obtained from the Gunnersbury Cemetery manager, you own the lease and exclusive burial rights to your son’s grave in the cemetery and that the land remains the property of the cemetery. Unless the cemetery authorities object, therefore access to the grave would not appear to constitute a trespass”.
The Secretary of State’s summary grounds of resistance include the following:
The Secretary of State had regard to all the material considerations in this case;
The Claimant’s grounds are essentially a challenge to the weight which The Secretary of State placed on the competing considerations. Weight is a matter for the decision maker;
The Secretary of State’s decision cannot be categorised as irrational or Wednesbury unreasonable;
The claimant has an alternative and more effective remedy which she should be required to pursue before seeking judicial review of The Secretary of State’s decision.
The Summary Grounds record that the only known example of a licence being issued to a coroner under Section 25 is that which was issued to the Claimant in respect of the deceased on 14 December 2006.
It is stated that The Secretary of State’s general policy on the exercise of his discretion under that section is described in “Burials-Removal Notes on the Home Office Practice in Dealing with the Applications for Removal of Licences and Unlawful Removals”. Those include the following passages:
At page 25:
“It is the settled practice of the Home Office to require an application for removal to be made by or with the consent of the next of kin of the deceased… the general rule is not to grant a licence for removal unless the application is made by or with the written consent of the next of kin… it should however, be remembered this is a condition imposed by The Secretary of State not a statutory requirement, and he is at liberty to waive it in any exceptional case on good cause being shown for doing so”;
At page 62:
“If the owner of the grave in which a body is buried objects to removal this is necessarily a fatal objection to the issue to a licence. This rests simply on the fact that it is his grave and ought not to be interfered with. There is the further consideration that The Secretary of State’s licence only protects persons acting under it from criminal proceedings for disturbing the remains of the deceased; it does not and cannot affect rights of property in any way and would not therefore deprive the owner of a grave which had been opened without his consent of his civil remedy for trespass”.
It is said that the general policy for The Secretary of State as summarised in these passages, is a long standing one which has not previously been the subject of legal challenge. It is noted that the Claimant does not challenge it in this case.
It is stated that The Secretary of State was well aware of the public interest in the exhumation of the deceased’s body as stated in the Claimant’s grounds and preceding correspondence. However, in the period between 18 July 2007 and 15 May 2008 The Secretary of State became aware of a number of additional matters which were either not known or not fully appreciated in July 2007. These included:
The extent to which the exhumation was opposed by Mrs Sutovic and other members of the deceased’s family;
The full nature and extent of Mrs Sutovic’s rights in respect of the deceased’s grave and monument. While The Secretary of State had been aware of Mrs Sutovic’s burial rights in July 2007, it was at that stage believed that she did not object to the exhumation, and the question whether exhumation might interfere with those rights had therefore not been considered in any depth. It was only subsequently that The Secretary of State became aware that Mrs Sutovic also had memorial rights;
The impact of the exhumation on a neighbouring grave;
The possibility of an alternative remedy, namely an application by the Claimant to the Administrative Court for directions regarding the exhumation, following the Court’s order under Section 13 of the Coroners Act 1988.
The Secretary of State’s Grounds include a statement that The Secretary of State was entitled to and did have regard to his long standing policy relating to grant of licences under Section 25 and to the question whether granting the Claimant a licence would in fact further the wider public interest by allowing the body to be exhumed, or whether the Claimant would still need the consent of Mrs Sutovic as the owner of the burial rights to the grave and the memorial headstone. Given that it was clear that such consent would not be forthcoming, The Secretary of State was entitled to conclude that granting a licence would not sufficiently advance the public interest to justify departing from his general policy. Notwithstanding his previous understanding that Mrs Sutovic did not object, during the period between the grant of the first licence and the refusal of the second, The Secretary of State had been involved in lengthy correspondence with Mrs Sutovic from which it was clear that she opposed the grant of a second licence. It is not accepted that The Secretary of State fettered his discretion by reference to the policy. It was relevant to take into account whether the grant of a licence would in fact enable the deceased’s body to be exhumed. The Secretary of State was correct to take the view that the existence of exclusive rights of burial gives the owner a right which is to be equated with a right of property, interference with which is actionable: see Reed v Madon[1989] 2 All ER 431. A licence under Section 25 does not authorise the licence holder to go onto land on which the licence holder has no interest for the purpose of exhumation. It does not confer or override any property or other right in respect of the grave. The rights in respect of the memorial stone enjoyed by Mrs Sutovic were such that the Claimant would need her consent, and, in light of that, the fact that RBKC did not object to the exhumation was of limited relevance.
The alternative remedy referred to is one said to be based on the jurisdiction identified in R v. Saunders(1719) 93 ER 452. It is said that that is the route that the Claimant should have proceeded along in the first place. But the appropriate defendant to such an application is not The Secretary of State but the next of kin of the deceased. The Secretary of State is neutral on the question whether the Court should make an order on this alternative basis but submits that the existence of this remedy is of itself, a reason why the application for permission to seek judicial review should be dismissed.
In a witness statement dated 12 July 2009, the deceased’s father, the Second Interested Party made clear that he is strongly opposed to the exhumation of the deceased’s body.
The deceased’s brother Marko, the Third Interested Party also objects to the exhumation of the body. He contends that the Claimant has produced no evidence to support her contention that it is necessary. He also submits that it would be an interference with his Convention right to respect for his private life under Article 8. Further, he submits that it would be an interference with the Convention right to freedom of religion under Article 9. The family including the deceased are orthodox Serbs and it is against their religion to disinter human remains.
The claimant has sought permission for British police officers to investigate the deceased’s death. She notes that it is the view of the Metropolitan Police, expressed by Commander Foy, that exhumation is a critical issue as a means to provide the necessary evidence to conduct enquiries with Serbian authorities.
On 29 May 2009 there was a new development. Solicitors acting for the 3rd Interested Party wrote to the Claimant informing her that the deceased’s body lies in burial ground consecrated by the Church of England, with the result that no exhumation can take place in the absence of a Faculty. The Claimant had not previously appreciated that any part of Gunnersbury Cemetery was consecrated ground. She accepts that in the circumstances that the deceased’s body is buried in consecrated ground, the consequence is that she must now obtain a Faculty from the Chancellor of the Diocese of London before any exhumation can take place.
In a ten page letter dated 26 June 2009 Mrs Sutovic wrote to the Claimant on a number of topics, stating in particular that she would not agree or permit in the event of an exhumation, that the body of her son be re-interred in the same grave. The Claimant states that it is common ground that if the body is exhumed and re-interred in the same grave, the Claimant will need both a licence from The Secretary of State and a Faculty, but that if it were to be re-interred in a different place in consecrated ground then the Claimant would only need a Faculty.
On 16 July 2009 Mrs Sutovic applied for a stay of the hearing listed before this court on 26 July 2009, saying that the Claimant should first apply for a Faculty, before pursuing the present application. This application is no longer pursued.
In the skeleton argument prepared on behalf of the Claimant it is submitted that there are two principal issues arising for the court’s consideration. The first is whether the Claimant requires a licence from The Secretary of State in order to carry out an exhumation. The Claimant notes that it is The Secretary of State’s case that the Claimant does not. She can simply apply to the court for permission to exhume the body. However, if the body is exhumed but not to be re-interred in the same grave no licence would be required. The second issue is whether The Secretary of State erred in deciding to refuse to re-issue the licence.
On behalf of The Secretary of State it is submitted that there are the two issues identified by the Claimant, but that the Claimant inverts the order of importance. Although The Secretary of State has previously indicated to the Claimant that there are other appropriate means by which she could obtain the necessary authority to exhume the deceased’s body, this was not the main basis of the decision which is under challenge. If that decision was lawful, then the Claimant’s application for judicial review must fail irrespective of the answer to the question whether the Claimant requires a licence from The Secretary of State. That question is only relevant to the application for judicial review insofar as it relates to the existence of an alternative and, in The Secretary of State’s submission, more effective remedy. That question is directly relevant to the Claimant’s application pursuant to the decision in R v. Saunders.
I accept that the Claimant is seeking to fulfil her duty. The Secretary of State does not dispute the Claimant’s case that there is a public interest in the Claimant being able to have carried out the examinations of the deceased’s remains which she has said are required. I also accept that there is that public interest. I recognise that the Claimant’s task has been made difficult by the events that have occurred. On 17 May 2006 the Court was told that Mrs Sutovic would be seeking an order for exhumation for her son’s body. The Claimant understood that Mrs Sutovic was not objecting to the exhumation, and asked The Secretary of State for the licence on the first occasion on that basis. Mrs Sutovic, and the deceased’s father and brother subsequently made clear their objections, and the conscientious basis for their objections. Finally, it became apparent that the deceased is buried in consecrated ground. That was not known to The Secretary of State at the time of the impugned decision, but it is a development which can only strengthen The Secretary of State’s case, and not undermine it in any way.
I am indebted to Miss Hewitt for her clear and tenacious submissions. But she has not persuaded me that there is any power in this court, at least in the proceedings as they are at present constituted (that is against The Secretary of State alone) to override the rights of Mrs Sutovic which are referred to in the Decision Letter. And since it is now accepted that a Faculty is required, the Claimant cannot establish that any useful purpose would be served by granting the relief she asks for in these proceedings. It is not for this court to express views on matters which it is for The Chancellor of the Diocese to decide. If a Faculty is granted on an application which has not yet been made, and if at that time it appears that a licence from The Secretary of State is still required, then, as Mr Brown has made clear, The Secretary of State will consider any fresh application for a licence that the Claimant may make in the light of the circumstances as they are at that time.
Nor has Miss Hewitt persuaded me that any fault can be found in the reasoning of The Secretary of State. It is true that in the Decision Letter he expresses views different from the views that he had expressed in his letter of 18 July 2007 to Mrs Sutovic. But as he says, following his correspondence with Mrs Sutovic, he found that the facts had changed from what he had understood them to be at the time that he granted the first licence. It was his duty to consider the application for the fresh licence in the light of the circumstances as he then knew them to be. The fact that he placed a different and greater weight on the objections of Mrs Sutovic and the other Interested Parties than he had anticipated on 18 July is not a matter for criticism. There is no irrationality on his part.
For these reasons I would dismiss this application.
Lord Justice Laws:
I agree.