In a lengthy, elegant and literary judgment the High Court has dismissed the challenge to the decision to rebury King Richard III in Leicester Cathedral. A three-judge Divisional Court of Lady Justice Hallett, Mr Justice Ouseley and Mr Justice Haddon-Cave ruled that there had been no duty on the Secretary of State for Justice to consult when granting the Burial Act licence which authorised the exhumation of the remains.

Richard III had been killed in the Battle of Bosworth on 22^nd August 1485. He was buried in the choir of the Franciscan Priory of the Grey Friars in Leicester. The Priory was razed to the ground during the Dissolution of the Monasteries and the tomb broken up. Subsequently the site was occupied by a mansion and, much later, by a local authority car park. In 2012 excavations begun to try to find the King’s remains. Following the discovery of human bone on 24^th August 2012 a Burial Act licence application was made to authorise exhumation. The licence application was explicit that the investigation was looking for King Richard and ‘in the unlikely event that the remains of Richard III are located the intention is for these to be reinterred at St Martin’s Cathedral, Leicester within 4 weeks’ of exhumation’.

A licence was granted on 3^rd September 2012 authorising reinterment at the Cathedral, a burial ground or deposit in the Jewry Wall Museum. Two skeletons were removed on 5^th September, one of which was likely to be the King and that preliminary indication was announced on 12^th September 2012. On 4^th February 2013 it was announced that DNA matching that of Richard III’s sister, Anne of York, had been taken from two of her descendants and the identity of the remains was confirmed. Debate about the proposed location of the reburial followed, with the City of York Council making a proposal for York Minster.

On 3^rd May 2013 judicial review proceedings were brought by the Plantagenet Alliance Limited, a company which had been recently set up by Mr Stephen Nicolay, a 16^th great-nephew of Richard III. Richard III has between one and well over ten million living collateral descendants. The proceedings challenged the grant of the Burial Act licence, the Minister’s alleged refusal to revisit it following the announcement of the identity of the remains and the decisions of Leicester City Council and the University of Leicester to make arrangements for re-interment in Leicester Cathedral.

Permission to apply for judicial review was granted by Mr Justice Haddon-Cave on the papers on 15^th August 2013.

In the substantive judgment handed down on 23^rd May 2014, the Divisional Court first held that the claimant had standing as a public interest litigant. The Court summarised the principles on fairness and when a need to consult might arise, emphasising that any duty to consult usually only arose if there had been a procedural rule or a promise or practice to consult, absent conspicuous unfairness. The Court referred to the Ministry of Justice guidance note for applicants for Burial Act licences and the Church of England/English Heritage Guidance for best practice for treatment of human remains excavated from Christian burial grounds in England. The DCMS Guidance for the Care of Human Remains in Museums was considered to have little relevance in the present case.

Construing the licence in the light of the application, the Court considered that it only permitted the re-interment of Richard III in Leicester Cathedral. The Secretary of State said, and the Court accepted, that he could amend the licence without requiring a fresh application.

The Court held that public consultation on reburial prior to the exhumation would have been premature and unnecessary given the remote possibility that the King’s remains would be found. It was not possible for the Court to write into the licence and obligation to consult on reburial. In the judges’ eyes, the Claimant’s main case was that there was an obligation to revisit the burial condition once Richard III’s remains had been identified. They rejected the argument that the need for the Minister to inform himself adequately (from Tameside v Secretary of State) was a way of introducing a requirement to consult. Instead the Court asked whether the decision not to revisit the licence was rational without further inquiries. The minister was aware of the views of arguments for reburial in the nearest place to the original grave, which was Leicester Cathedral, and that HM The Queen and the Church of England were content with that. The public debate, including in Parliament, was well known to the Minister. The Court considered it was rational not to revisit the licence without making further inquiries.

They also held that none of the guidance on human remains [153]:

“shows a practice to consult in circumstances such as the present. None shows an established practice on the part of the Secretary of State to consult long lost collateral relatives in the event of the archaeological discovery of the remains of a historical figure after 500 years. In our judgment, none gives rise to a legitimate expectation that collateral descendants would be consulted, after centuries, in relation to an exhumed historical figure.”

The exceptional nature of the find did not give rise to a duty to consult. It was observed that [155]:

“This case undoubtedly has unique and exceptional features which arguably call for special consideration. It is why the claim has reached this Court. The archaeological discovery of the mortal remains of a King of England after 500 years may fairly be described as “unprecedented”. The discovery touches on Sovereign, State and the Church. To the extent that these unique features call for special consideration, it may well be that the decision-maker is required by law to ascertain at least the views of Sovereign, State and the Church. In our view, however, at all material times in this case the Secretary of State was sufficiently aware of the views of Sovereign, State and the Church to be able to make an informed decision.”

But that failed to assist the Claimant.

The Court saw any public consultation as ‘entirely open-ended and not capable of sensible limit or specificity’ [156], although that might not have been the Court’s best point.

It also held that the University of Leicester was not exercising any public function and had the Burial Act licence purely as a private body. The Council’s legal role had ended once the remains were removed from its land. The challenges against those two bodies also therefore failed.

The Divisional Court judgment is here.

This case is considered in the Supplement to Historic Environment Law by this author which is published at the end of May and in the Institute’s forthcoming book Human Remains and the Law