| OUTER HOUSE, COURT OF SESSION [2011] CSOH NUMBER124 |
| P651/11 | OPINION OF LORD BRODIE in the cause MRS S C Pursuer; for Judicial Review of a decision of the Service Personnel and Veterans Agency of the Ministry of Defence and for suspension and suspension ad interim of that decision and for interdict ad interim ________________ |
Pursuer: D M Campbell; Balfour & + Manson LLP, Solicitors
First respondent: K J Campbell; Morton Fraser
Second respondent: Philip M Stuart; Morisons
[Date of Issue]3 August 2011
The application
[1] This bears to be an application for judicial review of a decision of the Service Personnel and Veterans Agency of the Ministry of Defence ("the JCCC"), as contained in its letter of 6 June 2011.
[2] The petitioner is the widow of a private soldier, Mark C, who died on 14 May 2011("the deceased"). At the time of his death the deceased was serving in The Black Watch, 3rd Battalion, The Royal Regiment of Scotland ("the Regiment"). He is understood to have died as a result of an assault by one or more of his comrades while on a training course in Germany. The petitioner She was named as the universal legatee in his will. She is therefore entitled to apply for a dative appointment as executrix in preference to any other candidate for such appointment. The first respondent is the Advocate General for Scotland as representing the Secretary of State for Defence. In this opinion I shall use the expression "the first respondent" to comprehend the Secretary of State and any officer acting on his behalf or otherwise exercising the prerogative powers to provide for national defence in relation to the matter with which this petition is concerned. The second respondent is a person upon whom service was made as having an interest. She is the mother of the deceased. The deceased nominated her as executrix in his Will.
[3] The deceased's body was initially retained by the German police before being released to the Regiment. It was returned to London. It remains there.
[4] By letter dated 6 June 2011 the JCCC intimated to the petitioner and the second respondent its decision to release the deceased's body to the second respondent.
[5] As appears from the petitioner's averments, a dispute has arisen as between the petitioner and the second respondent as to the arrangements to be made for the funeral of the deceased.
[6] The order for service of the petition was made on 14 June 2011. Answers were lodged on behalf of the first respondent on 30 June 2011. The petition came before me for a first hearing on 1 July 2011. Answers have not been lodged on behalf of the second respondent but she appeared represented by counsel, as did the other two parties. I heard argument on 1 July 2011 and at a continued first hearing on 19 July 2011.
The background circumstances
[7] It appears from the first respondent's averments that the JCCC is the branch of the Ministry of Defence which is involved inter alia in liaising between members of the immediate families of members of HM Forces who are injured or killed, the unit of which the serviceman or woman was a member, and other parts of the service. Correspondence produced by parties would indicate that the JCCC is a subordinate agency of the Service Personnel & Veterans Agency of the Ministry of Defence. Death or serious injury will be reported to the JCCC by the unit of which a serviceman or woman was a member. In the case of the deceased that was the Regiment. From there the information will be conveyed to the unit headquarters, and thence to the immediate family. Close family members will be assigned a Visiting Officer, who will generally be a serving member of the unit of which the serviceman or woman was a member. The Visiting Officer acts as the point of contact for the family member of members concerned.
[8] The history of the dispute is set out in the petition as originally presented as follows:
"5. That following repatriation of the deceased's body to the United Kingdom the JCCC took responsibility for matters. They initially indicated to the Petitioner and her family that they intended to release the body to her and so follow the deceased's last known wishes for his funeral. These were for burial in Forfar or wherever they were settled as a couple. A full military funeral was suggested by the Regiment. A dispute then arose between the Petitioner and [the second respondent] over the manner of the funeral and interment. [The second respondent] complained to her Visitation Officer. The Regiment then referred to the deceased's Will Form for Service Personnel. A copy thereof is produced herewith. The Will appointed his mother and brother, ... as his executors. The Petitioner is named as residuary beneficiary. The Regiment took legal advice. That advice was that in England case authority favoured an executor over a relative in term of the right of custody of the body but that the position in Scotland was not conclusive.
6. That on Wednesday 1 June 2011 the Petitioner's Visitation Officer, Colin Gibson advised her that the body of the deceased could not now be released to her custody as intended and advised her to contact the JCCC for clarification of the situation. On the morning of Monday 6 June 2011 the JCCC confirmed by telephone to the Petitioner's solicitor that they would retain the deceased's body until such time as agreement was reached with all parties or an order of court was received. Later on 6 June 2011 the JCCC in a further telephone conversation with the Petitioner's solicitor intimated a change in their position. Due to the policy and procedure laid down in the MoD handbook, and as a result of the advice received, they had decided that the deceased's body would be released to [the second respondent] on Thursday 9 June 2011. By recorded delivery letters dated 6 June 2011 the JCCC formally intimated to the Petitioner and [the second respondent] the decision to release the deceased's body to [the second respondent] and that they would liaise over funeral arrangements and marking of the grave with her. A copy of the letter dated 6 June 2011 from the JCCC to the Petitioner setting out said decision is produced herewith and referred to for its terms which are held to be incorporated herein brevitatis causa. After further discussion with the Petitioner's solicitors the JCCC agreed not to release the deceased's body until Friday 10 June 2011. There were then discussions between the Petitioner's solicitors and the Respondent's solicitors which resulted in the JCCC undertaking not to release the deceased's body until either the Petitioner and [the second respondent] reach agreement on how to proceed, or there is an order of the court.
8. That the deceased did not leave written instruction regarding his funeral. He made his wishes known to his wife. He indicated his wish to be buried. He did not want to be buried in Methil. He did not like the place. He wished to be buried wherever he and the Petitioner were settled. The Petitioner indicated to him that she would probably have chosen cremation but her view had changed since the death of her brother who was buried in Forfar. The deceased indicated that it would suit him to be buried along with the Petitioner's brother. When difficulty over the funeral arrangements arose the Petitioner offered that he would be buried on his own in Forfar rather than alongside her brother. The deceased said that he did not want black at his funeral. The Petitioner's Visitation Officer indicated to the Petitioner that the JCCC would follow the deceased's last known wishes being a funeral and interment in Forfar. This position seemed to be maintained even after the dispute arose as the legal advice as to the executor's pre-eminence was not conclusive. [The second respondent] intimated that she would insist on her own funeral arrangements with interment at a family lair in the Wemyss, Fife. The JCCC originally intended to release the body to the Petitioner as widow without any reference to the Will and the appointment of an executor in accordance with their normal procedure. It was intended that a full military funeral would be undertaken at which many of the deceased's colleagues wished to attend. The Regiment made arrangements for the military funeral and interment in Forfar which would be paid for by them. An officer attended at the intended place of the service and interment in Forfar. Local funeral directors were instructed. The Petitioner wishes these arrangements to be implemented. In the event of the body being released to [the second respondent] these arrangements will not be implemented. By letter dated 24 May 2011 ..., the Petitioner's solicitors wrote to ... [the second respondent's] solicitors, enquiring as to the possibility of any agreement being reached between their respective clients. In terms of an email of 26 May 2011 from [the second respondent's solicitors] to [the petitioner's solicitors] it was proposed that (1) the deceased's body be placed in the care of a funeral director of her choice; (2) a military funeral take place in Forfar; (3) those attending should be encouraged to wear "colour" or any reasonable clothing as suits individual choice and (4) the interment take place in Weymss. [The petitioner's solicitors] sent an email to [the second respondent's] solicitors on 9 June 2011 raising the possibility of discussions about an agreement being reached between their respective clients. To date there has been no response. The Petitioner and [the second respondent] therefore remain in dispute about the place of interment. Copies of the letters and emails of 24 May, 26 May and 9 June all 2011 are produced.
9. That there was a strong relationship between the deceased and the Petitioner. They first met towards the end of 2007. They became engaged in July 2008 and married in February 2009. The Petitioner nursed the deceased back to health following his sustaining of serious injuries in an explosion when he was serving in Afghanistan on 11 June 2009. He was treated on return at Sellyoak Hospital, Birmingham. The Petitioner was flown there to be with him. The deceased's mother refused to go to visit him there as the army did not pay her fare. The deceased was offended that she did not visit him. There was a difficult and argumentative relationship between the deceased and his mother. The deceased left home at the age of 16 being encouraged to do so by his mother. [The second respondent] was critical of the Petitioner and was abusive at times in telephone conversations and Facebook messages. The deceased resented his mother's attitude to the Petitioner. The deceased maintained a good relationship with his brothers and in particular [a brother who he nominated jointly as executor]. Reference is made to affidavits produced herewith from relatives and friends of the Petitioner and the deceased. He appointed his mother and brother as executors only because of the erroneous advice from the army that it was not appropriate to appoint the same person as executor and beneficiary. This erroneous advice was maintained as recently as a week ago in discussion the Petitioner had with her Visitation Officer. He did not see fit to appoint his mother as his sole executor. [The deceased's brother] has intimated in writing that he gives his mother right to act a sole executor."
[9] While I understood that the account of events set out in paragraphs 5 to 8 above to be essentially uncontentious, counsel for the second respondent stressed that the averments in paragraph 9 relating to the quality of the relationship between the second respondent and the deceased would be disputed and that if anything were to turn on them there would have to be a proof.
The letter of 6 June 2011
[10] It is in respect of the decision constituted by or intimated in the letter of 6 June 2011 that the petitioner seeks judicial review. The substantive text of the letter is in the following terms:
"I am sorry to have to refer to the death of your husband Mark and wish to offer my personal condolences for your loss, but wish to update you on the arrangements for the return of Mark's body from Germany. I also need to advise you on the Ministry of Defence's position with regards to the funeral arrangements.
Following Mark's untimely death, his body was initially retained at the mortuary in Germany whilst the authorities conducted investigations into the exact circumstances of his death. At the end of last week the MoD were informed that Mark's body could be released and it was therefore collected by our Repatriation Contractor and moved to their premises in London last Friday. Once they have completed the necessary legal and preparatory arrangements to allow the movement of a body within the UK, we will authorise transfer of the body to the family's chosen undertaker. We anticipate being in a position to arrange this transfer by Thursday or Friday of this week.
Whilst the MoD usually deals with the closest living relative (next of kin) over the funeral arrangements, as you know Mark appointed his mother as his executor, in a will dated 5 March 2009, and her solicitors have indicated that she wishes Mark's body to be repatriated to a funeral director of her choice in the Fife area. This is because under the laws of both England and Scotland, the executor retains certain legal rights and responsibilities in regards to ensuring the burial or cremation of the deceased. In the circumstances, in the absence of documentary evidence that anyone else has been given the responsibility of arranging the funeral, and having taken legal advise, the MoD will be releasing the body to [the second respondent] and will liaise with her over the funeral arrangements and marking of the grave. I wish to apologise for the delay in repatriating Mark's body which was due to the necessary legal formalities being completed in Germany. We now anticipate being in a position to arrange the transfer of Mark's body to the appointed undertaker by Thursday or Friday this week and I sincerely hope you and [the second respondent] can still come to a voluntary agreement that will allow both of you to remember and honour Mark in an appropriate manner."
The legal advice available to the first respondent
[11] The petitioner accepts that it was as a result of the first respondent receiving legal advice that the initial proposal to release the body of the deceased to her was withdrawn in favour of the proposal to release the body to the second respondent. I was shown a copy of an email from Mrs Helen Homewood, Lt Col (Rtd), dated 20 May 2011 which included the following assessment of the position:
"Having consulted with the MOD solicitors in Scotland (Morton Fraser in Edinburgh) I can confirm that their advice is as follows:
'While there is no hard and fast law in Scotland the general view is that the final decision is with the executor(s). In all of their actions the executors have to be careful and aware that they have to act in the best interests of the estate.'"
The position in England was addressed by reproducing what appears on the website of a firm of English solicitors:
"A common misconception is that a person's wishes, as often set out in their Will, are binding on their family. This is not the case. If a person specifies a particular way in which they want to be buried, the family are not required to follow this.
Sometimes, people are also unsure as to who is entitled to make the decision about disposing of the body, and often think that it is the next of kin who is entitled to make the decision. This is not always the case. The general rule is the person appointed as executor in the deceased's Will, or the person entitled to act as personal representative, where no Will was made, is the person who has authority to dispose of the body. Therefore, irrespective of other family member's wishes, there is little that can be done to override this, unless the executor is acting wholly unreasonably."
[12] Later in this opinion I shall set out and discuss my understanding of the law as to who is entitled to determine the funeral arrangements for a particular deceased but, as I took counsel for the petitioner to accept, as a brief summary of the relevant domestic law independent of what may have been superimposed by the interaction of section 6 of the Human Rights Act 1998 and article 8 of the European Convention of Human Rights, what appears in the email of 20 May 2011 as informing the actions of the first respondent is, in my opinion, accurate.
Remedies sought in the petition and supporting contentions
[13] The petitioner's position is that the JCCC has made a decision which it has refused to review or rescind. The petitioner avers that there is no internal process whereby the petitioner can appeal the decision or seek a review of it and that accordingly she has no remedy other than to invoke the supervisory jurisdiction of this Court.
[14] When the petition was first presented the petitioner sought the following remedies:
(1) declarator that the first respondent's decision that the body of the deceased would be released to the second respondent with whom they would liaise over funeral arrangements and marking of the grave being wrong in law et separatim unreasonable et separatim incompatible with the petitioner's rights under article 8 of the European Convention on Human Rights is invalid and of no force and effect;
(2) declarator that the petitioner is the person lawfully entitled to custody of the body of the deceased;
(3) reduction of the decision of the first respondent to hand over the body of the deceased to the second respondent;
(4) suspension of that decision and suspension ad interim;
(5) interdict of the first respondent releasing the body of the deceased to the second respondent and liaising over funeral arrangements and marking of the grave and for interdict ad interim;
(6) an order of specific implement ordaining the first respondent to deliver the body of the deceased to the petitioner or such firm of Funeral Directors as she may nominate; and
(7) expenses.
[15] In adjusting the petition there was added:
"(8) Such further order, decree or orders as may seem to the court to be just and reasonable in all the circumstances of the case".
[16] In the course of his submissions counsel for the petitioner moved to amend by deleting orders (5) for interdict and (6) for specific implement, in respect of an undertaking on behalf of the first respondent not to release the body of the deceased pending agreement as between the petitioner and the second respondent or an order of the court. Counsel further conceded that having accepted that the law of Scotland as to who had priority in a competition for custody of a dead body was, as he described it, unsettled, and that the law of England favoured the executor he could not contend that the first respondent's proposal to release the body of the deceased to the second respondent was unlawful. He further conceded that the question of reasonableness simply did not come into the matter. He accordingly restricted the terms in which he sought declarator as set out in order (1) by not insisting on declarator that what he characterised as a decision of the first respondent was wrong in law and unreasonable. [17] At paragraph 10 of the petition there are set out contentions in support of a grant of these remedies as follows. Subparagraph (1) contains a submission on the common law as it relates to a competition for the custody of a body as between the executor and the spouse of a deceased, Subparagraph (2) contains a submission on reasonableness in decision-making under reference to Associated Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. As these two lines of argument were departed from by counsel it is sufficient for present purposes to quote subparagraph (3):
"The Respondent's decision was wrong in law and incompetent in respect that: ...
(3) The Respondent's decision contravenes the Petitioner's right to respect for private and family life as enshrined in Article 8 of the European Convention on Human Rights ("('the Convention") ') and accordingly is unlawful in terms of section 6 of the Human Rights Act 1998 ("('the 1998 Act"). '). The Respondent is a public authority in terms of section 6 of the 1998 Act and in terms of section 6(1) it is unlawful for public authorities to act or fail to act in a manner which is incompatible with a Convention right. The decision of the Respondent deprives the Petitioner of the opportunity of taking custody of the deceased's body, arranging his funeral and to determine where he is interred and will result in his interment in a place where she does not wish his body to be interred. The decision deprives her of the opportunity to establish a family burial lair. This impinges adversely on her family life and thereby adversely affects her right to a family life."
[18] I would observe that the contention set out paragraph 10 (3) does not fully support the declarator sought in order (1), even if one leaves aside the references to "wrong in law" and "unreasonable". The petitioner seeks declarator on the basis that as it is incompatible with her rights under article 8 of the European Convention on Human Rights the decision she impugns "is invalid and of no force and effect". That proposition does not appear in paragraph 10(3). Although it may not very much matter, I would regard that proposition as unsound. A decision or act of a public authority may be unlawful because it is incompatible with an individual's human rights. It does not follow that it is therefore "invalid and of no force and effect". That would be so where the power on which the public authority relies is dependent on human rights compliance, as is the case with the Scottish Parliament in terms of section 29(2)(d) of the Scotland Act 1998 or with the Scottish Ministers in terms of section 57(2) of the same statute but it is not the case that the validity of every act of the United Kingdom Executive is dependent upon it being Convention compliant. Rather, a finding by the court that a public authority has acted or proposes to act in a way which is incompatible with a Convention right and therefore unlawful in terms of section 6(1) of the Human Rights Act 1998, allows the court, in terms of section 8(1) of the Act, to grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. Thus, if it be that the petitioner's article 8.1 rights are engaged in the circumstances averred in the petition and if she can demonstrate interference with these rights by an act or proposed act of the first respondent as a public authority, then, subject to the full terms of article 8.2, the court may grant such remedy within its powers as it considers just and appropriate but the remedy to be awarded, which might be reduction, is a matter for the court's discretion.
[19] I would mention another discrepancy as between the terms of declarator sought by the petition and the supporting contention in paragraph 10(3), given the emphasis given to it by counsel for the petitioner during his submissions. The petitioner seeks declarator that release of the body to the second respondent and liaising with her over funeral arrangements and marking of the grave would be incompatible with the petitioner's rights under article 8. There is no mention in paragraph 10(3) of the matter of "liaising" between the first respondent and either the petitioner or the second respondent. This may not have been intentional. I certainly understood from counsel for the petitioner that the first respondent's proposal to liaise with someone other than herself over funeral arrangements to be objectionable. However, it does appear to me that a distinction may be drawn between the private and family aspects of a funeral, which I would see as including selection of a gravesite, and its more public aspects such as the involvement of a military honour guard or pallbearers from the Regiment. It would seem to be the case that the "liaising" to which the petitioner takes exception touches more closely on the public rather than the private aspect. I shall return to this in the context of the petitioner's complaint of interference with her article 8.1 rights.
[20] It was common ground among the parties that the first respondent will offer to defray the cost of and costs associated with the funeral of the deceased, up to certain limits, irrespective of which gravesite and associated arrangements are chosen. Nothing was made of that factor in argument: cf Esfandiari v Secretary of State for Work and Pensions [2006] HRLR 26.
Jurisdiction and competency
[21] As was reasonably apparent from the petition and answers but most plainly articulated by counsel for the first respondents, what parties are looking for from the court is the resolution of a dispute as between the petitioner and the second respondent that they have been unable to resolve by themselves. For reasons which each lady no doubt consider to be good, the deceased's widow wishes him to be buried with military honours in a cemetery in Forfar whereas the deceased's mother wishes him to be buried with military honours in a cemetery in the Wemyss, locations which are some forty-five miles apart. The only interest of the first respondent, as explained by his counsel, is to secure a practical resolution, sooner rather than later, so that the deceased may have a dignified funeral. These being the circumstances, counsel for the first respondent conceded any point that might be available on territorial jurisdiction and advanced no argument on competency. Counsel for the second respondent similarly took no point on jurisdiction. He asserted, albeit without much by way of argument, that the application was competent. It was of course the position of the petitioner's counsel that the application was competent and that the court had jurisdiction. None of the parties raised any issue as to choice of law, the assumption being that the lawfulness of the first respondent's proposed actions was to be determined by Scots law.
[22] I accept that any available points on territorial jurisdiction and choice of law can be conceded. It is different with competency. As Lord Clarke has recently had occasion to observe in giving the opinion of the Court in Ruddy v Chief Constable of Strathclyde Police 2011 SLT 387 at para 16, matters of competency are pars judicis. If in a particular case a court does not consider it has power to act in a particular matter or to act in the particular way proposed by a party, then it cannot act. Notwithstanding the urging to the contrary by counsel for the petitioner and counsel for the second respondent and the reticence of counsel for the first respondent, I consider that this is such a case.
[23] Counsel for the petitioner referred me to the well-known authoritative delineation of the parameters of the supervisory jurisdiction of the Court of Session exercised by way of judicial review which is found in the opinion of the Court delivered by Lord President Hope in West v Secretary of State for Scotland 1992 SC 385 at 412 and stated thus:
"The following propositions are intended therefore to define the principles by reference to which the competency of all applications to the supervisory jurisdiction under Rule of Court 260B is to be determined:
(1) The Court of Session has power, in the exercise of its supervisory jurisdiction, to regulate the process by which decisions are taken by any person or body to whom a jurisdiction, power or authority has been delegated or entrusted by statute, agreement or any other instrument.
(2) The sole purpose for which the supervisory jurisdiction may be exercised is to ensure that the person or body does not exceed or abuse that jurisdiction, power or authority or fail to do what the jurisdiction, power or authority requires.
(3) The competency of the application does not depend upon any distinction between public law and private law, nor is it confined to those cases which English law has accepted as amenable to judicial review, nor is it correct in regard to issues about competency to describe judicial review under Rule of Court 260B as a public law remedy.
By way of explanation we would emphasise these important points:
(a) Judicial review is available, not to provide machinery for an appeal, but to ensure that the decision maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. It is not competent for the court to review the act or decision on its merits, nor may it substitute its own opinion for that of the person or body to whom the matter has been delegated or entrusted.
(b) The word 'jurisdiction' best describes the nature of the power, duty or authority committed to the person or body which is amenable to the supervisory jurisdiction of the court. It is used here as meaning simply '"power to decide", ', and it can be applied to the acts or decisions of any administrative bodies and persons with similar functions as well as to those of inferior tribunals. An excess or abuse of jurisdiction may involve stepping outside it, or failing to observe its limits, or departing from the rules of natural justice, or a failure to understand the law, or the taking into account of matters which ought not to have been taken into account. The categories of what may amount to an excess or abuse of jurisdiction are not closed, and they are capable of being adapted in accordance with the development of administrative law.
(c) There is no substantial difference between English law and Scots law as to the grounds on which the process of decision making may be open to review. So reference may be made to English cases in order to determine whether there has been an excess or abuse of the jurisdiction, power or authority or a failure to do what it requires.
(d) Contractual rights and obligations, such as those between employer and employee, are not as such amenable to judicial review. The cases in which the exercise of the supervisory jurisdiction is appropriate involve a tripartite relationship, between the person or body to whom the jurisdiction, power or authority has been delegated or entrusted, the person or body by whom it has been delegated or entrusted and the person or persons in respect of or for whose benefit that jurisdiction, power or authority is to be exercised."
Counsel for the petitioner also referred me to Crocket v Tantallon Golf Course 2005 SLT 663 where Lord Reed comments upon what had been said in West in these terms:
"[37] ... Without attempting an exhaustive definition, it can be said in the most general terms that the essence of the supervisory jurisdiction is that it is the means by which, under the common law, the court ensures that bodies which possess legally circumscribed powers to take decisions or actions, affecting the rights or interests of other persons, exercise their powers in accordance with the limitations and requirements to which they are subject. Those limitations and requirements may be set by legislation, or by contract, or by some other instrument, or by the common law. They may concern such matters as the extent of the powers themselves, the purposes for which they can be exercised, the factors which the body in question requires to take into account, and the procedures which the body must follow. Since the court's function is confined to ensuring that the powers are exercised in accordance with the limitations and requirements to which they are subject, it follows that its jurisdiction is of a restricted nature, which is aptly described as supervisory. It cannot interfere with an act or decision taken by the body in question within the limits of its powers, since to do so would be incompatible with the existence of those powers, but can only review the decision to ensure that it is intra vires. ...There is thus a relationship between the nature of the supervisory jurisdiction, the type of acts or decisions which fall within its scope, the grounds upon which the jurisdiction can be exercised, and the nature of the remedies which are generally appropriate.
...
[39] In West, the idea of a tripartite relationship was put forward with a view to assisting understanding of the supervisory jurisdiction. ...
[40] ... It is not difficult to discern a tripartite relationship of the kind described in most situations falling within the supervisory jurisdiction: the decision maker usually exercises a power over individuals, conferred by legislation or by contract. Even in such a situation, however, some of the limits upon the powers in question may be imposed by the common law, and cannot realistically be regarded as impliedly imposed by the legislature or by the contracting parties. In some other situations - for example, where prerogative powers are concerned - the powers, and their limits, may derive entirely from the common law. Although, therefore, the concept of a tripartite relationship, broadly understood, is valuable as a paradigm of the situation in which a body exercises a limited power or authority, it is not, as it seems to me, to be applied inflexibly, as if it were a Procrustean bed which every situation must be forced to fit."
[24] West is the leading case on the nature of the supervisory jurisdiction. It is binding on me. I respectfully agree with everything that appears in the above extract from Lord Reed's opinion in Crocket. It is because of what appears in the passages cited that, in my opinion, what is presented here as a reviewable decision is no such thing.
[25] As Lord Hope explains, the supervisory jurisdiction is a means of regulating or controlling the exercise by a decision maker of a power to decide conferred on the decision maker and not absolute but subject to express or implied limitations. The source of the power to decide may be statute, agreement or any other instrument. It may be the common law. The purpose of the supervisory jurisdiction is to ensure that the decision maker does not exceed or abuse his powers or fail to perform the duty which has been delegated or entrusted to him. There is therefore an expectation that a party seeking to invoke the supervisory jurisdiction might be able to identify the source, nature and therefore limitations of the power which he says has been exceeded or abused. As is obvious, if the nature and extent of a power cannot be identified it becomes somewhat difficult to say when it has been exceeded or abused. Here the nature and extent of the relevant power was not identified, or at least not in any very precise way. The writer of the letter of 6 June 2011 was Mr I G Wilkins, an officer of the JSCCC, but it was not suggested that he had an independent decision-making role. To the extent that he was a decision maker he was acting on behalf of the Secretary of State for Defence. The power to decide, if it could be identified, must therefore be a power conferred on the Secretary of State. No more precise source of that power or indeed its nature was suggested than it being an aspect of the prerogative power of the Crown to provide for national defence. That was how the matter was put by counsel for the first respondent. Counsel for the petitioner was even less precise. He described the Ministry of Defence as "an emanation of government" which was exercising a public function and in liaising with the executor it would be involving itself in making the funeral arrangements for the deceased. When pressed as to the source of the power of which he sought to review the exercise I understood counsel to point to the power that came from custody of the body. On counsel's approach that power had been exercised by making a choice as to whom the body should be released and the exercise of power was challenged on the basis that the understanding of the law which had informed the choice was mistaken. Counsel urged me to consider the realities of the matter: once the second respondent had possession of the body, she would be in a practical position to determine where it was buried. Moreover, the petitioner took exception to the first respondent's intention to "liaise" with the second respondent over funeral arrangements. The second respondent was the wrong person with whom to liaise; the first respondent should liaise with herthe petitioner.. As I have already indicated, I understood liaising in this context to mean facilitating the military aspects of the funeral.
[26] Now I do not suggest that in the absence of statute (and I was not pointed to any statute) the first respondent does not have a power, which may be prerogative in nature, to provide generally for the welfare of the families of deceased soldiers and more particularly to arrange for the repatriation of dead bodies and their delivery to family members for the purpose of burial and thereafter facilitate such military aspect to the ceremony associated with the funeral as family members may wish. I assume that he does. In doing so operational choices will have to be made. Exercising operational choices can be described as decision-making but it is decision-making of a sort. I resist the notion that simply because choice has been exercised or simply because choice has been exercised on behalf the Secretary of State who is armed with prerogative and statutory powers, that the resulting outcome can be the subject of judicial review. Here I did not understand counsel for the petitioner or counsel for the second respondent to identify any power that might be the subject of the supervisory jurisdiction beyond the practical control which flows from the first respondent having the custody of the body. The concept of ultra vires does not sit happily with power of that nature. The tripartite relationship referred to by Lord Hope in West appears to me to be absent. Now I accept, as Lord Reed observes in Crocket, that the existence of a tripartite relationship may not be essential and that what was said by Lord Hope should not be applied inflexibly or as if it were statute. However, again as Lord Reed indicates, there are types of acts or decisions which fall within the scope of the supervisory jurisdiction and types which do not. What does fall within the scope of supervisory jurisdiction is the exercise of "legally circumscribed powers to take decisions or actions, affecting the rights or interests of other persons". In my opinion that is not what is under consideration here. Critically, nothing in the letter of 6 June 2011 affects the rights or interests of anyone and indeed it does not purport to do so. It neither constitutes nor expresses a decision. All that there is in the letter is a statement of intention to transfer custody of the body to the party that the writer of the letter understands is entitled to its custody as a matter of law. Whether or not that understanding is correct, neither the writing of the letter nor the implement of the intention expressed in any way alters parties' respective rights or interests. Were it to be the case that the petitioner is entitled as a matter of law to demand custody of the body, neither the letter nor a transfer to the second respondent in implement of the intention expressed in the letter would affect that. Put shortly, in my opinion there is nothing here to judicially review. I recognise that in similar circumstances in England the courts may take an approach to applications for judicial review which is more pragmatic and closer to what parties would have wished me to do here: Burrows v HM Coroner for Preston [2008] EWHC 1387, but the nature of the equivalent English jurisdiction is different from that in Scotland.
[27] For completeness I would add that counsel for the first petitioner drew my attention to the decision of the House of Lords in Davidson v The Scottish Ministers 2006 SC (HL) 41 where it was held that an application for judicial review was not included within "civil proceedings" for the purpose of section 41 of the Crown Proceedings Act 1947 and that therefore the remedies of interdict and specific implement were available in such an application directed at the Crown or a Crown servant although not available in an ordinary action. If I am correct in holding this application to be incompetent, it would follow that in order to vindicate any entitlement she may have to custody of the body the petitioner would have to bring an ordinary action. In such an action she would not be able to seek interdict or specific performance because of the terms of the 1947 Act but would have to be content with declarator. Counsel for the petitioner relied on Davidson for the competency of granting of interdict and specific implement in proceedings for judicial review but expressly disavowed the suggestion that simply because the petitioner had been seeking interdict and specific implement in proceedings against a minister of the Crown (but is no longer, in respect of the first respondent's undertaking) that this allowed the petitioner to proceed by way of judicial review in circumstances where she otherwise could not.
[28] I shall therefore dismiss the petition as incompetent. However, I can see that were I to leave matters there that might not provide very much assistance to parties in resolving the dispute. I may be wrong on my conclusion as to competency. I shall therefore address the petitioner's contention that what she characterises as the decision of the first defender contravenes her rights under article 8 of the European Convention on Human Rights and is therefore unlawful in terms of section 6 of the Human Rights Act 1998. Counsel for the petitioner abandoned the contention, expressed in her first plea-in-law, that she was entitled to custody of the body of deceased as a matter of common law but I shall require to say something about that when discussing the article 8 claim.
The article 8 claim
Engagement
[29] Article 8 of the Convention provides:
"1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."
[30] The petitioner contends that her article 8.1 rights are engaged because the decision of which she complains deprives her of the opportunity of taking custody of the deceased's body, arranging his funeral and determining where he is interred. The decision will result in the deceased's interment in a place where she does not wish his body to be interred. It deprives her of the opportunity to establish a family burial lair. She complains of the first respondent's proposal to liaise with the second respondent over funeral arrangements. This, she argues, all impinges adversely on her family life and thereby adversely affects her right to a family life.
[31] In support of the proposition that the petitioner's article 8.1 rights are engaged her counsel referred to one decision of the former European Commission of Human Rights on admissibility, X v The Federal Republic of Germany (app 8741/79) 24 DR 137 and three decisions of the European Court of Human Rights, Dödsbo v Sweden (2007) 45 EHRR 22, Ploski v Poland (app 61654/00) 2003 1 PLR 120, and Pannulo and Forte (app 37794/97).
[32] In X v Germany the applicant complained that he was denied the right to practice his religious beliefs by scattering his ashes over his own land after death and being obliged to bury them in a cemetery with Christian symbols. He alleged a violation of his article 9 rights but the Commission rejected the application on that ground in the absence of a manifestation of any belief in the sense of some coherent view on fundamental religious problems. He also alleged a violation of article 8. The application on that ground was also rejected in that the legislation in question could not constitute an interference with the right to respect for private life. However, despite its conclusion in the particular case, the Commission did accept that article 8 was engaged in that while choice of place and determination of the modalities of burial are made for a time after life has come to an end, individuals may feel the need to express their personality by the way they arrange how they are to be buried. Thus, the refusal of the German authorities to allow the applicant to have his ashes scattered in his garden on his death is so closely related to private life as to come within the sphere of article 8.
[33] In Dödsbo v Sweden the applicant's request to cemetery authorities to remove the urn containing her late husband's ashes from a grave in Fagersta to her family burial plot in Stockholm had been refused under reference to the notion of "a peaceful rest" under the Swedish Funeral Act. The Swedish government did not dispute that the refusal to allow removal of the urn involved an interference with the applicant's private life and therefore the majority of the Court did not consider it necessary to determine whether such refusal engaged the notions of family life or private life before proceeding to conclude that the Swedish authorities had taken all relevant circumstances into account and balanced them carefully and that therefore they had to be regarded as acting within the wide margin of appreciation afforded to them in such matters. The minority, however, found there to have been an infringement of article 8. It too noted the government's concession but the tenor of its opinion is clearly to the effect that the applicant's article 8 rights were in play.
[34] The applicant in Ploski v Poland was a prisoner who was refused compassionate leave to attend first the funeral of his mother and then, shortly thereafter, the funeral of his father. He complained that the refusals to allow him to attend the funerals of his parents constituted a breach of article 8. The Polish Government admitted that the rejection of the applications for leave were an interference with the applicant's right for respect for his family life. The Court therefore did not have to determine whether article 8 was engaged but, at para 32 of its judgment, it stated that it found no reason to come to a different conclusion.
[35] Pannulo and Forte concerned delay on the part of an investigating judge in authorising the return of the body of the applicants' two-year-old daughter who had died in hospital and whose death was made subject to an investigation. On an application to the Court the government concerned again did not dispute that delay by the judicial authority in issuing the burial certificate and returning the child's body to her parents had constituted an interference with their right to respect for their private and family life. The Court upheld the complaint, concluding that there had been a violation of the applicants' article 8 rights because the French authorities had failed to strike a fair balance between the applicants' right to respect for their private and family life.
[36] Having considered these cases I am left in no doubt but that article 8 may be engaged by an act of the state which touches on a family's freedom to determine what may be described as the place and modalities of burial of a deceased member of that family, to have custody of the body for the purpose of burial and to participate in any funeral ceremony, although as was emphasised at first instance in R (Ghai) v Newcastle City Council [2011] QB 591, a case to which I was not referred and to which I shall return, that can only be the case so long as the particular matters in question remain entirely within the private and family sphere. That these cases should be regarded as fact specific and should not be taken as founding too broad a principle is indicated by further decision of the Court which is referred to in the judgment of Cranston J in Ghai at para 131 as follows:
"Jones v United Kingdom (Application No 42639/04) (unreported) given 13 September 2005, was a decision of the Fourth Section of the European Court of Human Rights. The applicant complained that the local authority had frustrated his wish to have a photographic image incorporated into his daughter's headstone. The local authority purported to act under the Local Authorities Cemeteries Order 1977 (SI 1977/204). The court found the application inadmissible. It said, at para 2:
'the exercise of article 8 rights of family and private life pertain, predominantly, to relationships between living and human beings. While it is not excluded that respect for family and private life extends to certain situations after death, for example, the ability to attend a close relative's funeral (Ploski v Poland (Application No 26761/95) (unreported) 12 November 2002, para 32) or delay by the authorities in releasing a child's body to the parents for a funeral (Pannullo and Forte v France (Application No 37794/97) (unreported) 30 October 2001), there is no right as such to obtain any particular mode of funeral or attendant burial features.'
The court added that on the facts it did not find that the refusal impinged on the applicant's personal or relational sphere in such manner or to such a degree as to disclose an interference with his right to respect for his family life."
[37] Ghai was a claim for judicial review at the instance of an orthodox Hindu who had sought but been refused land from the local authority to be dedicated to traditional open air funeral pyres on the ground that this was forbidden by the relevant legislation. The claimant succeeded before the Court of Appeal on a relatively short point of statutory construction. The arguments canvassed before Cranston J at first instance were more extensive. He heard evidence. The claimant principally founded on the contention that the prohibition on cremation on an open air pyre contravened his article 9.2 rights to manifest his religion but he also sought to invoke article 8 in that the prohibition prevented him from exercising his "moral/religious/cultural /familial choice of a funeral rite." Put shortly, Cranston J dismissed the article 8 claim because cremation by means of an open air pyre was essentially a public event and article 8 does not protect things that an individual can only do by leaving private space and engaging in a public activity. However, he recognised that article 8 protection might extend to certain aspects of funeral arrangements. His understanding of the effect of the Strasbourg jurisprudence and his reasoning in the particular case can be seen in paras 140 and 141 of his judgment:
"140 ... I am inclined to interpret the case law so that in some circumstances article 8 protects a right to a particular kind of funeral, or a right to have burial or cremation take place in a specific way. The Secretary of State relies heavily on Jones's case and what he submits is the clear approach set out there. But Jones's case was an admissibility decision. Moreover, to my mind its language does not square precisely with that of the commission in X v Germany 24 DR 137 and the court in Dödsbo v Sweden 45 EHRR 581, albeit that in the latter case the Swedish government conceded that article 8 was engaged. In my judgment, on one reading of the case law, article 8 may afford protection to certain funeral arrangements. Moreover, I am not persuaded by the Secretary of State's argument that I can put to one side what the claimant submits are his son's article 8 rights and his son's desire to carry out his father's wishes after his death, with the argument the claimant's son is not a party to these proceedings. Article 8 issues cannot focus narrowly upon the individual litigant: see Beoku-Betts v Secretary of State for Home Department [2009] AC 115.
141 In any event, working from general principle it seems to me that in some circumstances the respect accorded to private (and indeed family life) in article 8 can extend to aspects of funeral arrangements. That is because they are so closely related to a person's physical, psychological or familial identity. Legislative regulation could impact so significantly on the personal or relational sphere that it constitutes an interference which engages article 8. In this case, however, article 8 does not extend its protection to this claimant's wish to have an open air funeral pyre. That is because it involves his stepping outside those spheres. The manner in which it would be conducted would mean that it was no longer private or familial. The description which the claimant and others such as Dr Ballard paint is of a wide circle of mourners participating. The event would assume a public character and as such would not attract article 8 protection."
[38] I respectfully agree with what appears in that passage of Cranston J's judgment both as to his reading of the cases and his statement of principle. I take his particular focus to be on private life because of the nature of the argument in front of him but I see what he said as applying to family life also. In the earlier case of Esfandiari v Secretary of State for Work and Pensions supra at para 23 Carnwarth LJ quotes with approval the following observation (by a Social Security Commissioner) in relation to funeral payments:
"[Regulations] which allow financially disadvantaged members of society to discharge family obligations to arrange for the funeral of a family member in accordance with the family's customs, traditions and religious or other observances, constitute a demonstration by the State of respect for one of the most solemn and fundamental manifestations of family life."
[39] Again I would respectfully agree. That would seem to accord with common sentiment. In Buchanan v Milton [1999] Fam Law 692, 53 BMLR 176 Hale J referred to those "...who feel just as strongly, as many of us do, that their deceased relatives must come 'home' to be buried." From as far back as we know anything of human history people have attached the greatest importance to marking the burial and maintaining the memory of those they may be taken to have loved or respected and to whom they were related. That someone has died does not mean that he is no longer regarded as part of the family. Acknowledgement that there are aspects of family life which subsist beyond the death of a family member is at least consistent with Scots Law's recognition of a right of action for damages as solatium on the part of near relatives in the event of unauthorised post-mortem: Pollok v Workman (1900) 2 F 254, Conway v Dalziel (1901) 3 F 918 and Hughes v Robertson 1913 SC 394 (discussed in Whitty, Rights of Personality, Property Rights and the Human Body in Scots Law (2005) EdinLR Vol 9 194).
[40] I accordingly accept the submission by counsel for the petitioner that her article 8.1 right to respect for her family life is engaged by an act which results in her deceased husband's body being interred in a location which is not of her choosing. However I do not accept that the same right is engaged by the first respondent "liaising" over funeral arrangements where what the liaison concerns is the incorporation of a military element in the public and ceremonial aspects of the funeral.
Interference
[41] Recognising then that article 8 is engaged by at least some of what the petitioner sees as the consequences of the proposal described in the letter of 6 June 2011, questions remain as to whether in this case there has been interference with the petitioner's rights under article 8.1, whether any interference was according to law and whether such interference was justified by any of the other provisions of article 8.2.
[42] Counsel for the first respondent was prepared to concede interference but he submitted that any interference was according to law and proportionate having regard to the protection of the rights and freedoms of others. Counsel for the second respondent argued that regard could also be had to the need to protect health. The latter consideration I would lay aside. I accept that the disposal of dead bodies involves questions of public health (and possibly also decency) and that therefore there is a public interest in regulating the matter. However, no such issue arises in the present case.
[43] The question of interference does not seem to me to be free from all difficulty but it is conceded by the first respondent and no specific point is taken on behalf of the second respondent. The petitioner can argue that by transferring the body to the second respondent the first respondent is putting it into the control of someone who, thus far, has stated it as her intention to thwart the petitioner's wishes as to the place of the deceased's burial. I therefore proceed upon the basis that transfer of the deceased's body would amount to an interference with her article 8 right to respect for family life.
According to law
[44] As it would appear from the petition, the petitioner had initially proposed to argue that the transfer of the deceased's body by the first respondent to the second respondent was not according to law. In the course of submissions by counsel for the petitioner that position was modified. Counsel accepted that transfer to the executor or someone entitled to confirmation as executor was not contrary to the law of England but asserted that as the matter related to the succession to the estate of a deceased who had died domiciled in Scotland, despite the fact of the body being temporarily located in England, it was Scots law that ruled. That said, counsel for the petitioner did not pitch his submission higher than that Scots law on the matter was uncertain. This led him to depart from the contention which appears in the petition: that in a competition between a spouse and executor for custody of a human body and for the making of funeral arrangements, the spouse has primacy. Counsel for the first respondent, on the other hand, argued that such authority as there was in Scotland favoured an executor over a spouse of the deceased in a competition for custody of the body. Counsel for the second respondent associated himself with that submission.
[45] In line with the invitation of counsel for all three parties I approach the matter on the assumption that in considering whether the first respondent's actions were according to law, in the sense of according to domestic law, the applicable law is Scots. It is nevertheless convenient to notice what I understand to be the relevant English law, given the references made to it and the authorities cited.
[46] I understood parties before me to be agreed that the applicable English law might be stated as it had been by Hale J (as she then was) in Buchanan v Milton [1999] Fam Law 692, 53 BMLR 176 (but see also: Burrows v HM Coroner for Preston supra). Hale J begins her summary of the relevant law as follow:
"There is no right of ownership in a dead body. However, there is a duty at common law to arrange for its proper disposal. This duty falls primarily upon the personal representatives of the deceased (see Williams v Williams (1881) 20 Ch 659; Rees v Hughes [1946] KB 517. An executor appointed by will is entitled to obtain possession of the body for that purpose (see Sharp v Lush (1879) 10 Ch D 468 at 472; Dobson v North Tyneside Health Authority [1997] 1WLR 596 at 600, obiter), even before there has been a grant of probate. Where there is no executor that same duty falls upon the administrators of the estate, but they may not be able to obtain an injunction for delivery of the body before the grant of letters of administration."
[47] When Hale J talks of the executor being entitled to possession of the body for the purpose of arranging the funeral, I would understand her as expressing the rule of the English law that the executor is the person entitled to conduct the funeral: Holtham v Arnold (1986) 2 BMLR 123 at 125. However, as appears from Buchanan v Milton, there is this qualification. In England, the right of the executor or person entitled to be the executor to possession of the body for the purpose of burial may be restricted. Buchanan v Milton was an application under section 116 of the Supreme Court Act 1981 (now renamed as the Senior Courts Act 1981). Section 116 is in these terms
"116. Power of court to pass over prior claims to grant.
(1) If by reason of any special circumstances it appears to the High Court to be necessary or expedient to appoint as administrator some person other than the person who, but for this section, would in accordance with probate rules have been entitled to the grant, the court may in its discretion appoint as administrator such person as it thinks expedient.
(2) Any grant of administration under this section may be limited in any way the court thinks fit."
[48] The factual background in Buchanan, was a dispute between the English adoptive parents of a deceased 19-year-old of Australian Aboriginal descent and the family of his birth mother. The birth mother sought displacement of the joint administrators as the persons with the duty and the right to dispose of the remains. Hale J heard evidence in support of competing claims as between cremation in England and a traditional Aboriginal burial in Queensland with a view to determining whether there were special circumstances to displace the English administrators. She did not find special circumstances and therefore did not displace the administrators.
[49] Allowing that the executor's right may be subject to restriction by an order of the court, it would therefore seem clear that what the first respondent proposes in the present case would be according to law if the law in question were to be the law of England. What then is the position under Scots law?
[50] The relevant entry in the Stair Memorial Encyclopaedia, in volume 3 at para 503, under the sub-heading "Disposal of Dead Bodies", has this:
"503. Responsibility for disposal.
Subject to certain statutory provisions there is no legal obligation on any person to dispose of a dead body and no specific requirement as to the method of disposal which may be used. The deceased's executor, his next of kin, or his near relatives are entitled to arrange for the disposal of his body and to choose the method of disposal";
and, at para 506 this:
"506. Directions of the deceased.
With certain exceptions, a person's directions as to the disposal of his remains after his death are not binding on his executor or next of kin. At one time the regulations governing cremations provided that if a deceased person had in life expressed a wish that his body should not be cremated that wish should be given effect. However, it is now open to those who are arranging for the disposal of a body to choose the method of disposal regardless of the deceased's previously expressed wishes. No doubt in most cases the deceased's expressed wishes will be given effect."
[51] What these entries in the Stair Memorial Encyclopaedia do not address is the question of priority of claims in the event of a competition among those identified as being entitled "to arrange for the disposal of his body and to choose the method of disposal". Counsel referred me to three cases bearing on that question: Robson v Robson 1898 5 SLT 351; Evans v McIntyre, Aberdeen Sheriff Court, Sheriff RJD Scott, 28 March 1980, reported in Paisley and Cusine Unreported Property Cases; and Willis v McCallum, a decision of Lord Gill reported in The Herald newspaper of 6 and 7 September 1996 and (1996) 24 Family Law Bulletin 6.
[52] Robson v Robson was an application at the instance of a widow for authority to exhume the body of her husband, buried in a lair belonging to the father of the deceased, and to permit it to be reburied in a new lair in the same cemetery. The application was refused by the sheriff-substitute and appealed to the sheriff. Because "the good sense and good feeling of the parties and their advisers ...resulted in an agreement" the sheriff (Vary Campbell) was able to order dismissal in terms of a joint minute and he therefore did not have to decide "all the interesting questions more or less directly involved in this case" but to judge from his note, as reproduced in the report, it would seem that he or those who appeared before him had expended some labour and significant scholarship in researching the issues. Following a survey of sources from a number of jurisdictions, the sheriff concluded that both in England and in Scotland the persons entitled to be executors, whether by the testament of the deceased or under the laws of intestacy, had right to the custody of the body and its disposal but that the case of a difference of opinion among the executors or between the widow and the executors had not been decided directly. He noted that the deceased was forisfamiliated, and had established himself as head of a new household or family and then offered the following views (supra at 353):
"It appears to me that, looking to the legal nature of the marriage tie as recognised in Scotland, and to general custom, the widow has the custody of the body and the choice of the place of sepulture in preference to the next-of-kin or relatives of her husband. Though she has no right of property on the corpse, she may have her rights to custody and burial protected by direct action, and, in the event of infringement, by damages. ... The widow's right of choice in Scotland is probably only absolute in the sense of permitting her to go, without reasonable cause, against family or parochial custom, as where the deceased had right to interment in a family tomb or in an old parish kirkyard."
[53] Evans v McIntyre was a dispute between the sister and the estranged wife of a worker who had died on an offshore oilrig. The sister wished to bury the deceased in a family burial plot on the island of Eriskay. The widow wished the burial to be in Glasgow. In part by reason of concerns about the mental state of the widow, the sheriff granted interim interdict at the instance of the sister (in terms which the sheriff's note does not disclose) but, following a proof he recalled the interim order, so permitting the widow to proceed with a funeral in the manner of her choosing. The sheriff explained as follows (supra at 52 to 53):
"Although there is no direct authority on the matter I apprehend that the law must have an answer to the question of who has the right to say how a dead body is to be disposed of, in the event of a competition. The answer in my opinion is that the person who has the right to decide is the executor of the deceased, if there is one, or, if there is not, the person who would be entitled to be appointed executor dative. The executor has the responsibility of winding up the estate of the deceased and one of the first things he must do is pay the funeral account. That in itself is in my opinion a sufficient basis for saying that the executor has the right to determine the mode of disposal of the body. Normally the body will have to be buried or whatever before the executor is appointed, unless there has been a nomination by the deceased. But in the normal case it is easy to determine who the executor will be. In the present case the defender is entitled to the whole of the estate of the deceased and she would in the ordinary way be entitled to be appointed executrix dative. ...As a matter of law I hold that the wishes of the deceased are, at least in a case of intestate succession, not binding on his executor in the matter of how the body is to be disposed of. ...in my view the law is that it is for the executors to arrange the burial and choose its form..."
[54] In Willis v McCallum a widower normally resident in Newcastle, brought an action for declarator that he was entitled to "complete possession of the body" of his late wife who had died suddenly while visiting relatives in Edinburgh; for interdict against, inter alia, the brother (to whom the body had been released by the Procurator Fiscal) and mother of the deceased from taking or removing the body from the premises of named undertakers; and for delivery of the body to the pursuer. It was the position of the defenders that the pursuer and the deceased had been estranged, that the deceased had come by herself to Edinburgh, that her mother had made arrangements to bury her in the family lair in Dalkeith Cemetery, and that the pursuer had known of the death but did not make any alternative arrangements or prevent the mother from doing so until his application for interdict the day before the funeral. The defender's proposal was that the body should be stored in the morgue until a full hearing could be arranged and, if he were successful, until he made funeral arrangements himself. Lord Gill dealt with the matter on applications for and recall of interim interdict. Recall was granted. Lord Gill's reasoning is reported in 24 Family Law Bulletin 6 as follows:
"The husband's rights as surviving spouse were regarded as not clearly any stronger than the mother's and it was by no means certain that he would be decerned executor. Furthermore, the husband had initially acquiesced in the mother's funeral arrangements. Finally, the balance of convenience favoured letting the funeral go ahead so that the woman could be buried without undue delay."
[55] Counsel for the first respondent, supported by counsel for the second respondent, submitted that Robson v Robson provided no assistance. It was a petition to disinter, not a dispute over custody of a body prior to interment. The sheriff's observation, although learned, were obiter, and did not in any event address the question of a competition between a widow and an executor. Evans v McIntyre was a more reliable guide. That decision may not have been supported by authority but there was not much authority available. It was submitted that the approach taken by Sheriff Scott was consistent with the role of an executor in Scots law.
[56] On the basis of the authorities to which I was referred and the submissions I heard, I would see that there is no question but that a confirmed executor or someone who is entitled to be confirmed as executor and who intends to seek confirmation (the "prospective executor") is a lawful custodier of the body of a deceased for the purpose of burial. That much is consistent with what Wilson and Duncan Trusts, Trustees and Executors (2nd edit) at para 31-11 describe as the factorial function of an executor in ingathering the estate of the deceased for the purpose of its proper allocation and distribution. It would seem to follow that, subject to the public interest (such as that pursued by the Procurator Fiscal in investigating sudden death), an executor or prospective executor is entitled to demand custody of the body from a third party who has it in his possession (by third party I mean someone other than the next of kin or a near relative). That said, I am not persuaded that matters are as cut-and-dried as Sheriff Scott's pronouncement in Evans would suggest. In particular, I do not see that it necessarily follows from the executor's or prospective executor's entitlement to custody of the body for the purpose of burial, that the executor or prospective executor has the right to conduct the funeral in the face of objection from near relatives, at least if all the near relatives expressing a preference are of the same opinion.
[57] Regard must be had to the nature of the executor's right and, which is an aspect of the same thing, the fact that, in addition to the public interest to which I have referred, there are other interests and rights in play, these being the rights of the next of kin (in the technical sense explained in Currie The Confirmation of Executors (8th edit) para 6.21) and, more importantly in a modern context, the near relatives. As Whitty supra points out, an executor's functions are patrimonial. The fact that he pays does not make him responsible for arranging the funeral. It is the surviving spouse and next of kin (not the executor) who have rights to solatium for unauthorised interference with the dead body. This would seem to imply, argues Whitty, that they (not the executor, who may be a financial institution or the family solicitor) should have rights over the nature of the funeral and disposal of the body.
[58] Whitty goes on to observe that there may often be no alternative to vesting rights of possession and control in the "nearest relative" who should, he suggests, be defined by reference to a statutorily prioritised list. Whitty gives the example of the Mental Health (Care and Treatment) (Scotland) Act 2003 section 234, as applied by the Adults with Incapacity (Scotland) Act 2000 section 87(1), as amended, as providing one such list. In the course of his submissions, counsel for the petitioner, pointed to another such list, it being that provided by section 50 of the Human Tissue (Scotland) Act 2006.
[59] Meritorious as Whitty's proposal may be, it can only be brought about by legislation. However, I accept, on the basis of the unauthorised post-mortem cases that Scots law recognises and protects the interest of close relatives in the dignified and appropriate treatment of the remains of a deceased family member. Whitty describes this as an example of the relatives' personality rights. In determining the extent of such personality rights in respect of a deceased family member regard must be had to article 8 of the European Convention. The primary axis in which Convention rights operate is vertical. Their object is to confer on the individual rights that he can assert against the state. However, in terms of section 6(3)(a) of the Human Rights Act the court is a public authority with a consequent obligation in terms of section 6(1) not to act in a way that is incompatible with Convention rights. A result of that is that in developing the common law, the court's direction of travel should be informed by its section 6(1) obligation even when deciding cases between private parties: cf Burrows v HM Coroner for Preston supra.
[60] Thus, in Scots law I would see near relatives as well as the executor or prospective executor as having rights or interests in respect of the body of the deceased. The nature of these interests is not the same. Whether or not one describes it as an aspect of personality rights, as Whitty would propose, the near relative has an interest which is personal to himself as an individual. As a consequence of that, albeit potentially in competition with others, the near relative has a right to claim custody of the body of the deceased for the purpose of burial. As I have indicated, the executor or prospective executor also has a right to the custody of the body of the deceased for the purpose of burial but the nature of that right is different from that of the near relative. The model of trust and fiduciary obligation suggests itself and indeed a contention to that effect appears in the petition at paragraph 10(1). As the legal advice to the first respondent puts it, "executors have to be careful and aware that they have to act in the best interests of the estate." That is clearly true in respect of patrimonial interests. It seems to me that an analogous duty should be considered as being owed in respect of the personal interests of the deceased's family in relation to a dignified treatment of his body and the making of appropriate funeral arrangements. Although this is not a direction that has been followed in the reported authorities, there is at least a flavour of this in one of the English cases. [61] In Grandison v Nembhard supra at 143 Vinelott referred to the Canadian case of Edmunds v Armstrong Funeral Home Ltd [1931] 1 DLR 676 where Harvey CJ quotes from the Corpus Juris, which Vinelott J explains is a comprehensive analysis of and commentary on the Canadian code. The passage cited is as follows:
"The right of sepulture is not an absolute right but must yield when in conflict with the common good or when the demands of justice require such subordination. Therefore no matter in whom the right of burial rests, it is in the nature of a sacred trust for the benefit of all who may, from family ties or friendship, have an interest in the remains."
[62] The case for the plaintiff before Vinelott J was that although the executors had the right and duty to dispose of the deceased's body in a manner suitable to his station and the size of his estate, that duty was "a sacred trust" and the near relatives were in a position to enforce its performance and therefore to ask the court to exercise control where the suggestion was that it was being abused. While he found the Canadian language rather extravagant, Vinelott J indicated that he would have found it surprising were the court to have no power in any circumstances to intervene in a question as to place or mode of burial which was unconnected with any issue as to expense. Without deciding the point he offered the view that the executor had discretion as to place and mode of burial which, on the ordinary principles associated with the control of discretion, would not be interfered with by the court unless it was exercised in a way which showed that the executor had not properly weighed the factors which ought to be taken into account in that it is wholly unreasonable.
[63] By referring to a trust model I have in mind no more than an analogy with trust and the fiduciary duties consequent thereon. As there are not rights of property in a corpse it can hardly be held on trust, properly speaking. However I do see the position of a Scottish executor having custody of a body for the purpose of burial as acting in a quasi-fiduciary capacity, subject to the claims of the near relatives. I do not see him as having the right to arrange burial subject only to special circumstances which would appear to be the case with his English equivalent. No doubt there will be circumstances in which it will be appropriate for a Scottish executor to proceed to arrange for the conduct of the burial but only after consulting the wishes of the near relatives. In the event of divergence of view I can see that the executor may have to come to a decision but only after giving consideration to such proposals as the family have to make. The executor who merely consulted his own preferences would be failing in his duties. I would see it as being capable of being tested in this way. As Whitty points out, it is not uncommon for a financial institution, a bank for example, to be nominated as executor in a testamentary writing. Could it really be suggested that the responsible official could then impose his choice of funeral arrangements on an objecting family, and were he to attempt to do so, that family members would not then have recourse to the court? That may be thought to be an extreme case but, as Willis v McCallum illustrates, the claims of a party entitled to be appointed executor will not necessarily defeat those of another near relative.
[64] Willis v McCallum also puts in question the assumption that a person with the best claim to be appointed executor will always be treated for the purposes of determining funeral arrangements as if he were the executor. Normally it is very unlikely that anyone will have confirmed as executor by the time the funeral arrangements must be made. There are therefore good practical reasons to treat the person entitled to confirm as having an equivalent status as a person who has confirmed, at least where he is what I have described as the prospective executor. It is less obvious why that status should be conferred on someone who has no intention of being confirmed.
[65] I recognise that the result of this analysis is that in the many cases (see Whitty supra) where no executor is confirmed to the estate of the deceased or is likely to be confirmed, pending the statutory reform that Whitty advocates, there will be no objectively ascertainable order of priority among the claims of near relatives. I immediately accept that that is regrettable, particularly if it means that disputes will have to be determined on a case by case basis under reference to the sort of evidence that was led in Buchanan v Milton and Burrows v HM Coroner for Preston and which parties were prepared to lead before me. Regrettable because, as Hale J observed of such proceedings in Buchanan v Milton supra at 186:
"Modern methods of refrigeration may make them possible but they are certainly unseemly. They delay the proper disposal of the body and normal processes of grieving while bringing further grief in themselves."
[66] In Holtham v Arnold supra at 125 Hoffman J went further:
"Looking at the evidence on both sides there seems to be no doubt that Mrs Holtham on the one side and the family on the other both feel very strongly that it is their right and duty to conduct the funeral. I think it is virtually impossible for a court to express any moral judgment as between them. The relationship between a man in the position of Mr Arnold and Mrs Holtham on the one hand and his family on the other are in the nature of things extremely difficult for an outsider to penetrate. This is particularly so when all that it has is a series of affidavits. Not that I am suggesting that one would necessarily be more successful if the parties themselves gave evidence. I think that it is a matter which it would be almost presumptuous to explore."
[67] For myself, had I felt obliged to consider the nature of the particular relationships of parties to the deceased, I would have endeavoured to limit that consideration to uncontroversial or objectively ascertainable facts. Determining what are appropriate funeral arrangements by reference to the quality of relationships within a family appears to me a task for which the court is quite unsuited. Fortunately this is not a task I need carry out in the present case. The issue for me is confined to determining whether the first respondent's proposal to transfer custody of the body to the second respondent is according to law. The second respondent had not yet confirmed as executor as at the continued hearing on 19 July 2011, notwithstanding that the deceased died on 14 May 2011. When I asked her counsel what she intended to do his reply was that she would take legal advice. This is not eloquent of someone who intends to embark on winding up her deceased son's estate and to discharge the various obligations consequent thereon. She has of course no very clear incentive to do so. The cost of any funeral will be defrayed by the first respondent and the petitioner is the universal legatee of the deceased's estate, such as it may be. For myself therefore I would not be inclined to regard the second respondent as a prospective executor but that does not mean that she has no claim to possession of the body. She is the mother of the deceased and therefore a near relative with the rights that flow from that. Thus, should the first respondent adhere to his expressed intention to transfer custody of the body of the deceased to the second respondent for the purpose of burial that act would be according to law. Of course that would be equally true were the first respondent to revert to his previously intimated proposal to transfer the body to the petitioner.
Necessary in a democratic society
[68] Article 8.2 permits a public authority to interfere with article 8.1 rights "except such as is in accordance with the law and is necessary in a democratic society ...for the protection of the rights and freedoms of others." I take the view that the act of transferring the body of a deceased to a mother for the purpose of burial or, if this is a different thing, following an understanding of the law that permits the transfer of a body of a deceased to a mother for the purpose of burial, can be regarded as being necessary for the protection of the rights and freedoms of others. The petitioner's complaint is that the transfer of custody and therefore control of the body to the second respondent adversely affects the petitioner rights to family life. However, were the transfer to be, as originally proposed, to the petitioner, the second respondent could complain that her rights to family life have been adversely affected. Compromise appears impossible. A state of impasse has been reached. The first respondent has been put into a position where he has to exercise a choice as between near relatives each of whom has rights protected by article 8.1. To respect the rights of both he cannot avoid favouring one. I would therefore see the proposed act as article 8.2 compliant.
[69] The way that counsel for the first respondent approached article 8.2 considerations was to concede that the act in question would constitute an interference with the petitioner's article 8 rights but that what was proposed was proportionate. That may very well be the correct way to look at the matter. It implies that in the circumstances of the present case the first respondent is obliged to act in a considered and measured way in determining how far it is appropriate to interfere with one family member's rights in order to protect the rights of another family member. To be proportionate any interference can only extend to what is necessary. The proposed act of the first respondent meets that test.
Summary and conclusion
[70] I am not persuaded that the first respondent's intention, stated in the letter of 6 June 2011, to transfer the body of the deceased to the second respondent is a decision or the actual transfer is an act which is amenable to judicial review by exercise of the supervisory jurisdiction of the Court of Session. I therefore propose to dismiss this petition as incompetent. However in deference to the argument of counsel on the substance of the petition, I have discussed that argument and expressed my opinion upon it.
[71] The only attack on the first respondent's proposal to transfer custody of the deceased's body to the second respondent and thereafter liaise with her in respect of funeral arrangements which was pressed by counsel for the petitioner and therefore the only issue that I would have been required to decide had I considered that I had the jurisdiction to do so, was that these acts would amount to an unjustified interference with the petitioner's right to respect for family life as provided by article 8.1 of the Convention. I am not satisfied that "liaising" if it means facilitating the more public and visible ceremonies associated with a funeral and in particular any military component in the ceremony engages rights in relation to family life but I do accept that the petitioner's rights are engaged by an act that will effectively determine the location of the place of burial. At all events, the first respondent concedes interference but argued that the act would be according to law and proportionate. I agree on both points and that is so whether the second respondent is to be regarded as having an equivalent status to an executor, as I take the first respondent to assume, or whether she is not, which would be my own view. The petitioner is a near relative of the deceased with all the rights and interests of a near relative but then so is the second respondent. Therefore, had I considered the petition competent I would still have dismissed it.
[72] The question that this opinion singularly fails to answer is who has the better claim to determine where and how the deceased is to be buried or his remains otherwise disposed of. This may not be so remarkable. The arrangement of a dignified and appropriate funeral is essentially a private and family matter to be decided by what the sheriff in Robson v Robson described as "the good sense and good feeling of the parties". Scots law has not had much to say on the matter and in particular, at this stage in its development offers no formal mechanism for prioritising claims. To the extent that the respective claims of the petitioner and second respondent admit of legal analysis, it can be said that both have rights which a public authority must respect and which any prospective executor must consider. The first respondent may therefore lawfully transfer custody of the body of the deceased to the second respondent but he may also lawfully transfer the body to the petitioner. Nothing in this opinion should be construed as an expression of preference on my part of the position of the second respondent over that of the petitioner.
[73] In dismissing the petition I shall reserve all questions of expenses.