King Arthur Pendragon, R (on the application of) v Ministry of Justice

MR JUSTICE WYN WILLIAMS: The claimant seeks a judicial review of a decision made by the defendant, the Secretary of State for Justice, to vary the terms of a licence which had been granted under section 25 of the Burial Act 1857.

In brief, the relevant history is as follows. In 2008, to be precise on 28th May 2008, the defendant granted a licence to the second interested party, Professor Parker Pearson. Under the Act the licenced permitted the exhumation of remains of around 60 cremation burials at a pit known Aubrey Hole 7 at the famous site as known as Stonehenge.

The original licence was subject to a number of conditions. Paragraph 2 specified the conditions and subparagraph (d) provided that the remains excavated should be re-interred as soon as practicable and in any event no later than within 2 years of the date of disinterment, in a burial ground in which interments may legally take place.

In the months that followed, after the remains had been removed from the ground, various archaeological investigations and/or scientific investigations of the remains took place. There came a point in time when the professor and his team wished to extend the period in which to carry out investigation. Accordingly they made an application to the defendant to vary the term, to which I have just referred.

Various representations were made about the application for variation. The claimant made representations opposing any suggestion that the time for complying with the obligation to re-inter the remains should be extended. Despite the views of the claimant but in the face of many representations the defendant granted the variation which was sought. As I have said, the variation was granted in November 2010 and condition 2(b) of the licence was deleted and replaced by the following provision:

During the course of his eloquent address to me this morning, the claimant frankly acknowledged that if he was satisfied that this condition would be complied with, he would not be seeking a judicial review. His fear however is that the archaeological team has no intention of re-interring these remains; rather, it wishes that they should be kept permanently in a suitable museum.

In that submission he is right. Professor Parker Pearson has said in terms that he does not accept that the remains should be re-interred and that his position is that they should be kept at a museum. However, that is not what the licence says. So in order to achieve the object of obtaining permission for judicial review, the claimant has to satisfy me that there is an arguable case that the defendant has acted in some way unlawfully.

On the papers the suggestion is made that the defendant has acted unlawfully because he has failed to take account of the views of the claimant and those who think like him. In advance of the defendant's decision, the claimant made full representations as to why the variation should not be granted. It is right to record, however, that there were many representations including from English Heritage, which supported the grant of a variation. Ultimately whether or not the variation sought was to be granted was a matter for the Minister to consider having taken account of appropriate representations and then exercising his discretion. As far as I can see, that is precisely what the Minister did.

Despite the submissions of the claimant, I can find no basis for concluding that the Minister deliberately or inadvertently ignored to take account of the claimant's representations.

The fact that he did so is demonstrated by the material to which reference is made in the acknowledgement of service filed on behalf of the defendant. It does not seem to me that that ground of claim can possibly succeed and it would not be appropriate for me to grant permission on that ground.

The second ground advanced on the papers is that the claimant's human rights are infringed and in particular Article 9 of the European Convention. That aspect of the case has not been elaborated upon orally this morning. I do not criticise the claimant in any way for taking that course, he has a limited time in order to present the points which he wishes to emphasise with particularity.

The plain fact is however that the acknowledgement service filed on behalf of defendant more than adequately addresses the alleged human rights issue. In my judgment, there is no realistic prospect that a successful claim could be mounted on the basis of an infringement of Article 9 or any other Article of the Convention and I adopt the reasons which are set out in the acknowledgement of service for reaching that conclusion.

In his oral submissions this morning the claimant focussed more upon his submission that the reality of this case was that the Minister was being duplicitous. The Minister, on the one hand, was issuing a licence, which on its face suggested that the remains should be re-interred at some suitable point in the future but at the same time was assuring Professor Parker Pearson and his team, either that at some distant time the law would be changed to avoid that happening or that the current law would be interpreted in such a way so as to prevent that happening.

If there was a true evidential basis for this suggestion of duplicity, that would be a proper basis for the grant of permission. I am afraid to say however that the papers provided to me do not provide a proper evidential basis for the suggestion that the Minister is being duplicitous or biased which was the other way in which the claimant sought to put his case.

That does not mean that if there is something in what is being said, albeit not supported by evidence now, it removes from the claimant the opportunity of presenting a claim in the future. If in the future something were to occur which would give credence to the suggestion that the defendant had acted in some way duplicitly, that would be the appropriate time, in my judgment, for any challenge based upon duplicity to be made. It is not appropriate at this stage to grant permission to apply for judicial review on the basis of what, at the moment, is an unsubstantiated allegation.

On the basis of the written material presented to Edwards-Stuart J, in my judgment he was correct to refuse permission for the reasons he gave. In relation to those matters which have been raised before me orally this morning, I regret to say that I am not satisfied that there is a sufficient evidential basis for concluding that permission should be granted. Accordingly it is my duty to refuse this application.

Thank you very much.