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Tony Muman of 43 Temple Row Chambers is instructed to act on behalf of AB Parties.

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BREXIT DAY 1

Proceedings in the much anticipated ‘Brexit Litigation’ commenced on Thursday 13^th October 2016 with Lord Pannick QC opening the case for Gina Miller.  An official transcript of the first day can be found here.

The Courtroom was packed with barristers, solicitors, the press and the public. The proceedings were being streamed live to two nearby courtrooms such was the public interest in the case. The case is being presided over by the Lord Chief Justice, the Master of the Rolls and Lord Justice Sales. Outside the Court, security was tight with lawyers’ ID’s being checked before they were allowed entry into Court.

Lord Pannick QC opened by making it plain that this case was not about Ms Miller, or indeed any of the other claimants, interested parties or interveners wishing to halt Brexit. He stated categorically that this was a case which raised

“…an issue of fundamental constitutional importance concerning the limits of the power of the executive. Can the defendant, on behalf of the government, lawfully use prerogative powers to give a notification under Article 50 of the treaty on European Union of this country’s intention to withdraw from the EU?… It is not concerned with the political wisdom or otherwise of withdrawal by this country from the EU.”

Lord Pannick QC addressed five main topic areas including (1) the construction of Article 50 EC; (2) the Referendum Act 2015; (3) the relevant featured and constitutional significance of the European Communities Act 1972; (4) the legal limits on the use of the prerogative powers; and (5) the issues raised by the Government in their now widely available skeleton argument.

One of the most significant points which the Lord Chief Justice questioned almost immediately was that once invoked, can Article 50 EC be stopped? And secondly, can you give a conditional notice?  The Court thought this an imperative to the extent that the basis of the claim was that once Article 50 EC is triggered the withdrawal from the EU and the repeal of all laws, rights and freedoms which now form part of our jurisprudence as a result of our membership of the EU will be lost, notwithstanding any suggestion by the Secretary of State that they may be ‘re-granted’ at some later date.

The Court also heard from Dominic Chambers QC who made extensive submissions on the history and development of Parliamentary Sovereignty and Helen Mountfield QC addressed the Bill of Rights 1688 and issues of Devolution.

On Monday 17^th October 2016 it will be the turn of the AB Parties and Manjit Gill QC to make submissions on issues relating to the effect of triggering Article 50 EC, in the absence of legislation, on children and their carers.

Tony Muman, assisted by Thomas Green appears for the AB Parties led by Mr Gill QC.

The primary submissions are expected to be concluded at the end of Monday with the replies due on Tuesday.

For any further details or enquiries about either Mr Muman or Mr Green please contact the clerks.

Article 50 and Brexit – The Government’s Case

Last week, on 6^th October 2016, the Government served their skeleton argument in advance of the much awaited hearing before the Divisional Court, beginning on 13^th October 2016.

The central issue for the Divisional Court; following the referendum on 23^rd June 2016, is whether the Prime Minister can use the Royal Prerogative to give notice to the European Commission under Article 50 of the Lisbon Treaty to exit the European Union; or whether it is a fundamental constitutional requirement for Parliament to first debate whether and how and on what terms notice should be given, followed by primary legislation authorising the giving of such notice and simultaneously repealing the European Communities Act 1972.

At the Conservative Party Conference last week the Prime Minister announced that she would, exercising Royal Prerogative, give notice under Article 50 by the end of March 2017.  Her ability to do so, however, will be subject to this Court’s judgment and the Supreme Court on appeal, which is to be heard by the end of this year using the special ‘leap-frog’ procedure.

Tony Muman, assisted by Thomas Green, is instructed in the judicial review on behalf of the AB Parties.

For any further details or enquiries about either Mr Muman or Mr Green please contact the clerks.

In October 2016 the Divisional Court will hear a 2/3 day judicial review to determine whether there is a need for Parliamentary authority prior to the giving of notice of withdrawal from the EU under Article 50(1) of the TEU. 

The hearing is listed before a full Court presided by the Lord Chief Justice and has been described as the biggest constitutional case in generations. 

The Supreme Court has been alerted to the possibility of hearing a ’fast track’ leap-frog appeal before the end of the year, in the light of which the Govt. has agreed not to give notice under Article 50 until 2017 pending the Courts’ judgments.   

Tony Muman is instructed for one of the parties. 

The principle, first outlined in Octagon Assets Limited v Remblance [2009] EWCA Civ 581 can be simply stated. A tenant, who had fallen into rent arrears, brought an action against the landlord for breach of various covenants. The landlord served a statutory demand on the tenant’s guarantor for the rent arrears.

The guarantor pointed to the unfairness of the situation. The landlord could not have served a statutory demand for the rent arrears against the tenant. The tenant would have been able to rely on the cross-claim as a ground to set aside the demand (under IR r. 6.4(5)(a)). The guarantor, however, had no such cross claim and therefore appeared to be unable to set aside the statutory demand.

The Court of Appeal (reversing the judgment of Mann J) held that as the tenant’s obligations and the guarantor’s obligations were “co-extensive”, justice required that the guarantor be in an equivalent position to the tenant. Dyson LJ held:

“It was unjust to allow Octagon [the landlord] to proceed against Mr Remblance [the guarantor] by the insolvency route if it could not proceed against JBR [the tenant] by that route.

The doctrine has no application to grounds for setting aside under IR r. 6.4(5)(c) or (d) as:

• A creditor which has several remedies can choose which to enforce, at what time, in which order and in what way, being limited only by the proposition that it cannot recover more than is due to it on the debt with interest and costs by way of its several recovery procedures;

• Where a security (or partial security) exists over the debt BUT the security given to the creditor is over the assets of a different person, then the existence of that security does not constitute any reason why the particular creditor should not proceed against this other debtor, who has given no security over his assets, for an undoubted debt by way of a personal claim or by way of insolvency proceedings.

White v Davenham Trust Ltd [2011] EWCA Civ 747.

This was another tripartite relationship of creditor, principal debtor and guarantor. The guarantor was served with a statutory demand in relation to the debt owed by the principal debtor. The creditor had not proceeded against the principal debtor as the latter had given complete security for the debt. The ground under IR r. 6.4(5)(c) would have permitted the debtor to set aside any statutory demand served, unless the creditor gave up his security (which in this case it did not wish to do). The guarantor attempted to rely on the principle of co-extensive liability and the ground under IR r. 6.4(5)(c). As the creditor could not validly proceed against the debtor it was argued, in reliance on Octagon Assets v Remblance, that it should not be permitted to proceed against the guarantor.

This was unanimously rejected by the Court of Appeal. Giving the leading judgment, Lloyd LJ first summarised the policy considerations where secured creditors were concerned:

“The prohibition on a secured creditor presenting a petition is subject to two exceptions, under s.269. The first is if the creditor states that, if a bankruptcy order is made, he is willing to give up his security for the benefit of all creditors. In that case, therefore, the creditor is secured but if the bankruptcy process follows he will be treated as unsecured and the asset over which the security exists will form part of the bankruptcy estate available for distribution as between all the creditors. The second case is where the petition is expressed not to be made for the secured part of the debt and the estimated value of the security is stated. In that case there are deemed to be two separate debts, one secured (to the amount of the value of the security) and the other unsecured (for the balance) and the bankruptcy petition is only for the unsecured balance. By virtue of s.383 of the 1986 Act the only security which is relevant for this purpose is security over an asset or assets of the particular debtor in question. Lying behind these arrangements is the fact that bankruptcy proceedings are not intended as a means for a single creditor to enforce his debt against the debtor but rather as a method of collective realisation of the assets of a debtor who cannot pay his debts, to be distributed for the benefit of all creditors with claims on those assets. A creditor who is fully secured over assets of that debtor does not need to take bankruptcy proceedings, and should not do so, unless he is willing to give up the security, because the asset over which the security exists will not be part of the estate divisible for the benefit of the creditors generally. That is why a secured creditor cannot present a bankruptcy petition under s.267(2)(b) unless either he is willing to give up the security or his security is not adequate to cover the whole debt, in which case he ranks with the other unsecured creditors but only so far as the shortfall is concerned.”

([2011] EWCA Civ 747 at [8]-[9])

Lloyd LJ then explained how the ground under IR 6.4(5)(c) was, as a consequence of these policy considerations, different from those under IR 6.4(5)(a) and (b), which took it outside the scope of the principle outlined in Octagon Assets v Remblance:

“It is clear and common ground that a creditor which has several remedies can choose which to enforce, at what time, in which order and in what way, being limited only by the proposition that it cannot recover more than is due to it on the debt with interest and costs by way of its several recovery procedures: see China and South Sea Bank v. Tan [1990] AC 536 at 545.

……Thus it is not open to a guarantor to argue that the creditor should pursue the principal debtor first or should realise security given by the principal debtor first. Mr Arden did not argue that Mr White would have any defence to civil proceedings for the undisputed amount of the debt, on this basis or any other. In my judgment the co-extensiveness principle which was the basis of the decision in Remblance, and which applies by reference to each of rules 6.5(4)(a) and (b), does not apply to rule 6.5(4)(c) because the purpose of the latter provision is different.

As against a given debtor, if a creditor has security over that debtor’s assets which is more than sufficient, there is no reason to allow the creditor to pursue bankruptcy proceedings because the existence of the security means that the creditor has no interest in that debtor’s estate. He would not be able to prove for his debt, and there is no reason for him to be able to invoke the collective realisation of assets which is the point of insolvency proceedings, unless he is willing to give up his security. By virtue of s.267 of the 1986 Act he is not even entitled to present a bankruptcy petition. It follows that there is every reason why he should not be entitled to take the preliminary step of serving a statutory demand.

If, however, the security given to the creditor is over the assets of a different person, then the existence of that security does not constitute any reason why the particular creditor should not proceed against this other debtor, who has given no security over his assets, for an undoubted debt by way of a personal claim or by way of insolvency proceedings. There is no bar to the creditor presenting a bankruptcy petition in relation to such a debtor and there is therefore no reason why the creditor should not serve a statutory demand as a preliminary to the presentation of a petition if the demand is not satisfied….For those reasons in my judgment the existence of third party security, which on a statutory demand against the debtor who gave the security would bring into application rule 6.5(4)(c), is by itself entirely irrelevant under rule 6.5(4)(d) to a statutory demand served on a separate debtor even if liable as guarantor for the same debt but who has given no security himself.”

Thus, the Court of Appeal distinguished Octagon Assets v Remblance. The ‘co- extensiveness principle’ could only be relied upon when the party with whom the liability was co-extensive would have been able to rely upon the grounds in IR r. 6.4(5)(a) or (b) to set aside a statutory demand. The position of secured creditor was different; the broader insolvency regime expressly gave such creditors a choice as to how they recovered the debt, which affected the justice of the situation, and hence the exercise of the court’s discretion.

Trevor Berriman

The legal profession has been in existence for hundreds of years and there has traditionally been a clear distinction between the roles of Solicitors and Barristers.  Solicitors would liaise with the lay client and give advice and legal support, ultimately advising on the necessary course of legal action.  Barristers, however, would take their instructions directly from a Solicitor, advising them on specialist legal points, giving opinions as to the lay client’s likelihood of success, and representing the lay client in court.

In recent years, the rules for who can appear in Court have changed dramatically and the traditional division between Solicitors and Barristers has significantly narrowed.  For many years Solicitors have been able to obtain “higher rights”, enabling them to exercise rights of audience in the Crown Court, High Court and Appeal Courts.  The effect of this has been to limit the lay client’s access to a Barrister and the specialist knowledge and skill that they can bring to a case.

Over recent years the role of a Barrister has similarly developed allowing us to provide legal services directly to a lay client through a process called ‘Direct Access’.  Members of the public are now able to instruct Barristers directly without needing to incur the cost and effort of consulting a Solicitor first of all.  The benefits of the Direct Access route are numerous for the lay client and may include significantly reduced costs of bringing or defending a claim, and enhanced expertise from the outset.

A member of the public who instructs a barrister through Direct Access can tailor what work they need doing, but generally speaking your Barrister would be able to:

• Advise you on your legal status or rights
• Draft and send documents for you
• Represent you at Court, Tribunals or Mediation
• Negotiate on your behalf and attend employment or investigative interviews and hearings where appropriate.

All of our Barristers at 43 Temple Row Chambers provide high quality Direct Access services.  To discuss potential instructions and for a no-obligation fee quotation, please contact our Clerks.

Thomas Wheeler

July 2015

Tony Muman recently wrote an article for LexisNexis following the outcome of the latest stage of  MM which can be viewed here

To instruct Tony Muman on any public law or immigration matter, please contact his clerks.

Following the Judgment handed down today in the Grand Chamber, Public Law Barrister Tony Muman commented as follows: –

“The judgment is naturally disappointing for the client and she will take time to digest and reflect on it. The court does however reject the French government’s suggestion that her article 8 and 9 rights were not engaged. They also reject the government’s justification based on gender equality and public safety measures and reminds us of the importance of tolerance and pluralism. Ultimately the court has taken the view (not unanimously) that the state has a wide margin of appreciation and that the ban was a proportionate measure to the aims of “living together” and “protecting the rights and freedoms of others”. The client will continue to act lawfully as she always has done and respect the court’s judgment. She fears, however, that the judgment ironically will exclude her community even more than they have already felt since the law came into force, this would appear to undermine the very notion of living together.”

 

For further information about the case or to discuss any related matter, Tony Muman can be contacted via his clerks or on 0121 237 6035.

Update: the published judgment can now be downloaded here

European Court of Human Rights to give judgment concerning the prohibition
on wearing the full-face veil in public in France

On Tuesday 1 July 2014 at 11am the Grand Chamber will promulgate its much awaited judgment in the case of S.A.S. v. Republic of France. The case was heard by the full court on Wednesday 27 November 2013 and concerns the complaint of a French national who is a practising Muslim, that she is no longer allowed to wear the full-face veil in public following the entry into force, in April 2011, of a law prohibiting concealment of one’s face in public places.

The application was lodged with the European Court of Human Rights on 11 April 2011. On 28 May 2013 the Chamber to which the case had been allocated relinquished jurisdiction in favour of the Grand Chamber.

The Claimant is co-represented by Tony Muman of 43templerow chambers, Birmingham who argued:

“Life under the French ban is full of contradictions, perversity, inequalities and absurdity. Comedy, Satire and the Arts are given greater credence under the law than fundamental Convention rights. Wit and humour are given greater priority under the law than deeply and sincerely held religious belief and cultural practice. The choice to dress in a certain way for party reasons is given greater protection under the law than compulsion for religious and or cultural reasons to dress in a particular way.

The inescapable reality is that the manifestation of certain religious beliefs, to which the majority subscribe, is given greater respect under the law than the religious beliefs of others who fall within the minority.

S.A.S. is prepared to compromise. She is willing to remove her veil when there is a pressing social need and she is willing to wear a veil which strikes a fair balance between visibility and modesty. It is the State that has been overtly oppressive on the one hand whereas S.A.S. has offered compromise on the other.

S.A.S. underscores the reality that veil wearing Muslim ladies are no less patriotic about the Republic than their non-veil wearing comparators. Yet it is this group that has acutely felt the effect of the ban more than any other. In reality the law operates to prosecute the persecuted; it has had the effect of ostracising minority communities all the more and moreover ostracising the veil-wearing minority within that ostracised community.

Perversely the French ban has heightened racial tensions, brought about hostility and made society all the more intolerant.”

Background

S.A.S. is a French national who was born in 1990 and lives in France.

Under Law no. 2010-1192 of 11 October 2010, which entered into force on 11 April 2011, it is prohibited for anyone to conceal their face in public places in France.

S.A.S. is a devout Muslim. She wears the burqa and niqab in accordance with her religious faith, culture and personal convictions. She explained to the court that the burqa is a full-body covering including a mesh over the face, and the niqab is a full-face veil leaving an opening only for the eyes. She emphasised that neither her husband nor any other member of her family puts pressure on her to dress in this manner. She added that she wears the niqab in public and in private, but not systematically and was thus content not to wear the niqab in certain circumstances but wished to be able to wear it when she chooses to do so. Lastly, her aim was not to annoy others but to feel at inner peace with herself.

Relying on Article 3 (prohibition of inhuman or degrading treatment), S.A.S. complained that as it is prohibited by law, on pain of criminal sanctions, to wear a garment designed to conceal the face in public places, she risks not only incurring such a sanction but also suffering harassment and discrimination, if she wears the full-face veil.

Relying on Article 8 (right to respect for private and family life), she also complained that the statutory prohibition on the wearing in public places of a garment designed to conceal the face prevents her from dressing in public as she chooses.

Under Article 9 (freedom of thought, conscience and religion), S.A.S. complained of a violation of her right to freedom of thought, conscience and religion, as a result of the same circumstances. In her view, her inability to wear the full-face veil in public places is incompatible with the freedom to manifest her religion or belief individually or collectively, in public or in private, by worship, teaching, practice and observance of rites.

Relying on Article 10 (freedom of expression), she complained of a violation of her right to freedom of expression, as a result of the same circumstances and because she is thus unable to wear in public a garment that expresses her faith and religious, cultural and personal identity.
Relying on Article 11 (freedom of assembly and association), she further complained of a violation of her right to freedom of assembly and association, as a result of the same circumstances, and of the fact that she is prevented from assembling with others in public wearing the full-face veil.

Lastly, under Article 14 (prohibition of discrimination), S.A.S. complained that the statutory prohibition on wearing a garment designed to conceal one’s face in public places gives rise to discrimination based on gender, religion and ethnic origin, to the detriment of women who, like herself, wear the full-face veil.

This is an international case, the outcome of which will have wide-reaching repercussions. For further information concerning this case or any other public law matters, please contact Mr Muman via his clerks  or on 0121 237 6035

So held Mr Justice Leggatt in a very carefully considered ex tempore judgment given yesterday afternoon (1st April) in the Administrative court sitting in Birmingham.

“And when he dies…and when they place him on the fire,
Then he is born again out of the fire, and the fire consumes only his body.”
Satapatha Brahmana II.2.4.8

‟He who does not obtain funeral rites, is condemned to perpetually remain a preta‟
Garuda Purana II 9.47-49

The facts
The Claimant, a Hindu prisoner from Tamworth serving a default sentence for non-payment of a confiscation order at HMP Oakwood, Wolverhampton issued judicial review proceedings against the Secretary of State for Justice and G4S challenging in part the prison’s decision to refuse to allow him to attend and participate as Chief Mourner in the funeral of his 91 year old father, himself a lifelong devout Hindu who passed away with the sole instruction that his son faithfully perform the last rites. The urgency of the case reflected the looming end of the forty day mourning period during which the cremation must take place under Hindu last rites.
The Claimant had applied for permission to be released on temporary licence to allow him to attend the funeral. The request was denied on the basis that he posed a low risk of absconding. However the prison agreed to allow him to attend the crematorium on the condition that he would be accompanied by two warders and remain handcuffed to one for the duration. Specifically the Claimant would be prohibited from participating in any of the Hindu last rites rituals. The prison’s assessment was in stark contrast to the Claimant’s external probation officer who had approved his application for release on temporary licence.

When the Claimant’s wife pleaded with the Christian chaplain to permit him to attend free from handcuffs, but still in the company of warders, so that he could undertake the rituals as Chief Mourner the chaplain retorted that in all his years working for the prison he had never known an escorted leave to be permitted as requested and that he would eat his hat if that were to happen (Hmmm!) The Claimant’s wife asked if the chaplain had taken the advice of a Hindu colleague or if there was one he could/would speak to. The answer to both questions was no.
On 27 March the Claimant issued his claim using the services of the excellent Stuart Luke of Bhatia Best solicitors. In support of his application the Claimant obtained at great speed expert evidence on Hindu last rites.

On the day before the hearing the Hindu Council (UK) wrote to the prison to support the claim on the basis that it could not be in dispute that the eldest son performs the funeral rites and that he must be allowed to do so with dignity. The Council queried how the Christian chaplain was able to understand the unique sensitivities of Hindu last rites.

The expert evidence
The expert reminded the Court that the concept of ‘Good Death’ (su myrtu) is a central paradigm within Hindu religious traditions, without which, the soul is unable to liberate from mortal remains and proceed upon the intended transcendental ‘journey’ towards spiritual reincarnation.

The raison d’être of Hindu last rites (antyeshti sanskara) is to facilitate a ‘Good Death’. Full proper performance (orthopraxy) of the sacramental ritual framework is designed to liberate the soul and ultimately enable reincarnation. Accordingly, “it is commonly held that… death does not occur at the cessation of physiological functioning, but during the last rites.” This sacramental ritual framework encompasses a prolonged time period, including prior to cremation, the cremation itself and post-cremation rites (sraddha rituals extending for 1 lunar year).

A ‘Chief Mourner’ carries a sacred duty of immense responsibility towards the deceased, performing a ritual role without direct comparison in the Abrahamic religious traditions. A profound ritual nexus binds the Chief Mourner and deceased together throughout this last rites sacrament, as the Chief Mourner alone is eligible to perform the designated last rites the deceased requires to attain a ‘Good Death’. The Chief Mourner is no less than the deceased’s ritual conduit between life and afterlife, between ‘Good Death’ and ‘Bad Death’ (akal myrtu).
From antiquity to post-modernity, the uninterrupted Hindu religious tradition dictates that only one’s eldest son is eligible to act as Chief Mourner. Without question, last rites are not deemed as properly performed if undertaken by a person other one’s eldest son; nor can these sacramental duties be delegated nor shared with a third party.

Thus, full proper performance of the last rites sacrament is simultaneously a core religious duty for both father and son; without which, a father’s soul fails to attain liberation and a son fundamentally fails in his primary, sacred karmic role in life.

He confirmed that the Chief Mourner’s sacramental ritual duties are universally respected by all sects within Hindu religious traditions – and extensive research by one of the Secretary of State’s own expert Dr Shirley Firth confirms the same of Hindus living in the UK. :
He went on to confirm that the rituals described by the Claimant in his witness statement were indeed essential, universal features of the Hindu last rites sacrament and that his concerns were well founded. In particular the expert focused on those rituals for which the Chief Mourner is personally responsible as follows:
(1) The Chief Mourner must cleanse and anoint the deceased’s body with ritually pure oils, so that the remains are a fitting offering/‘sacrifice’ for the purpose of cremation (which is regarded as a ceremonial ritual fire). Once cleansed, only then are other mourners permitted a final audience (‘darshan’) with the deceased. This is typically done the day before the cremation.

(2) The Chief Mourner must perform/lead circumambulation of body at various times stages during the last rites (particularly during ‘pot breaking’ ritual).

(3) The Chief Mourner must lead the funeral procession and ‘give shoulder’ to the deceased by carrying (at least partly) the body/coffin (with assistance from male family members) to the crematorium.

(4) The Chief Mourner must make offerings of pinda rice balls (and money or food) on the body before and/or at the cremation ground (often en route).

(5) The Chief Mourner must perform a pot breaking ritual (kapala kriya). First circumambulating the deceased’s body holding a pot of water behind his head, the pot is then dropped to the ground proximately to the body’s head (in order to help release the deceased’s final ‘vital breath’ (synonymous with liberation of the soul).

(6) The Chief Mourner must ‘give light’ to the deceased’s cremation. In India this is done by lighting a wood pyre, in the UK the Chief Mourner customarily performs this vital function by pushing the coffin into the crematorium furnace and/or by activating the furnace. Thereafter the Chief Mourner (in particular) washes himself to cleanse the ‘ritual pollution’ caused during the course of cremation.

(7) Post-cremation the Chief Mourner must continue to observe a period (of varying length, according to sect) of ritual purity and a degree of social seclusion. Rituals continue to be performed on behalf of the deceased for at least 12-14 days after the cremation, however these are generally under the guidance of a trained ritual pandit and the Chief Mourner is not compelled to attend (although it is of course preferable).

(8) Many Hindu sects observe some manner of ceremonial ‘inheritance’ following cremation. In this instance the witness statements confirm how this will be done at the temple. The specifics of such a ritual vary significantly between different Hindu sects, nevertheless, the ‘turban’ ceremony described in the Claimant’s witness statement is entirely consistent with the characteristics of ‘inheritance’ rituals performed universally within Hindu religious traditions.

His unequivocal conclusion was that the Claimant’s role as Chief Mourner would be fundamentally compromised should he be compelled to attend under the physical restraint of handcuffs and/or physically restrained to security personnel.
– Firstly, there are obvious concerns that the Claimant may not be physically able to perform said rituals while handcuffed.

– Secondly, the Chief Mourner is obliged to maintain ritual purity throughout his involvement in the last rites. This entails not only keeping his body washed but also, more significantly, divesting all material and external attachments. For instance, many Hindu sects would expect Chief Mourners to wear no jewellery or foreign objects on their person, shave their head and maintain a simple, specific diet. Handcuffs or indeed any form of security restraint would constitute a foreign object for the purposes of ritual purity.

– Thirdly, the Claimant was entirely justified in his concern that being restrained to a third party (warder) at the time of performing the last rites would de facto make such party the ‘co-author’ of the rituals alongside the Chief Mourner. The Claimant’s objection was entirely justified – under no circumstances would last rites be deemed to be properly performed under such circumstances.

o Firstly, the sacred duties of the Chief Mourner are exclusive to him and the ceremony would be fatally compromised if requisite duties were shared and/or delegated.

o Secondly, it is unrealistic to imagine security personnel would comply with (if even aware of) the full rigours of ritual purity expected of a Chief Mourner – and their de facto ‘co-authorship’ of the rituals would fatally compromise the ritual purity of the entire ceremony. For example the security personnel will be required to remove shoes and cover heads during the rituals. They will also be required to observe inner and outer purity through not consuming meat or alcohol for example in the lead up to the commencement of the rituals.
He concluded by saying that “the stakes could be no higher. If the Claimant is not permitted to fulfill his ritual role as Chief Mourner without physical restraint (neither handcuffed nor attached to a third party) then he is entirely justified to fear his father’s last rites will not be fully properly performed. Such failure would prevent liberation of the deceased’s soul – and constitute a profound failure of the Claimant’s sacred duty of immense responsibility as Chief Mourner.”

The judgment
The judge reminded himself of the Williamson test the judge had no doubt that the Claimant satisfied the criteria for showing sincerity of religious beliefs and that those beliefs fell within a major world religion and therefore passed the relatively low Article 9 threshold. In the usual way the Secretary of State tried to place reliance on a last minute email from a Hindu Pandit based in Wormwood Scrubs (in itself an admission that the Claimant’s prison does not employ a Hindu chaplain) to show that somehow the Claimant’s Article 9 rights were not engaged. The author of the email acknowledged that the eldest son plays a major role but suggested that it was not necessary for the eldest son to play the role that the Claimant set out in his claim. His advice was that the eldest son would have to press the switch but that there was nothing in Hinduism which opposed the wearing of handcuffs whilst doing so. The learned judge correctly held that whatever the view of some members of the Hindu faith including the author of the email the Court was satisfied that it was of central importance of the Claimant’s beliefs that he performs the roles that he described.

The Defendants argued that there must be exceptions in circumstances where the eldest son is not available. True said the judge but that was not this case. The Claimant was available and it is central to his religious beliefs that he undertake his role faithfully as Chief Mourner.
The learned judge then addressed the question of the Claimant’s ability to perform the tasks whilst wearing a ‘closet chain’ a five foot length of chain with one handcuff at one end (for the detainee) and two handcuffs at the other end (to allow safe transfer between custody officers). In this respect the learned judge took the view that there was no reason to question or doubt the sincerity or strength of the Claimant’s religious beliefs requiring ritual purity which would be contaminated by his being compelled to wear foreign objects including handcuffs. Whether the ritual purity was compromised by the proximity of the escorts depended on how close they would be to the Claimant at the time.

The learned judge then went on to consider Article 8. Consistent with an unchallenged observation of Cranston J in Ghai [2009] EWHC 978 (Admin) at §141 the judge held that Article 8 was engaged. He went on to state that the freedom to mourn and participate in the funeral of a person, especially a parent, is integral to a person’s identity and therefore in principle any interference in the rites of mourning is a major one. Further, to appear in public wearing handcuffs and attached to someone wearing a chain is humiliating and whilst a serving prisoner in normal circumstances can be expected to be subjected to suffer a minor level of humiliation in the case of a funeral where the person is a Chief Mourner, more so in the context of the religious and cultural setting, the level of humiliation caused would be disproportionate. He described a funeral as being an occasion of special importance in one’s private life with potentially damaging consequences if one was not able to take part in it. That level of disproportionate interference was compounded where the individual and the deceased have strong religious beliefs.

In the learned judge’s view Articles 8 and 9 mutually enforced one another.
Working his way through the American Cynamid principles the learned judge considered the extent of interference with Articles 8 and 9 and balanced it with on the other hand strength of competing interests, namely the risk that the Claimant might abscond. The learned judge noted that the Defendants are generally better placed to assess such risk than the court but taking into account the reasons given in this case, the background and circumstances of the Claimant and a degree of common sense he could not understand why the Claimant was considered to pose a material risk of absconding given that whilst on bail for the principal offence the Claimant complied with all conditions and at all times complied with bail conditions; that he only has 90 days or so of his sentence left; that he has been making payments to discharge the confiscation order; that he was assessed as low risk of reoffending if released on temporary licence let alone with two escorts. Further the decision maker did not seem to take into account that the Claimant would be performing religious ceremonies at the time. However even assuming a risk of absconding, which the judge did, the risk came nowhere near justifying the serious interference with the Claimant’s Article 8 and 9 rights in this claim. The proposed restriction was therefore neither proportionate or reasonable.

In making their decision neither Defendant had taken into account and did not attempt to bring ‘cultural’ or ‘religious’ concepts into account when balancing the clear interference in the Claimant’s convention rights.

The Claimant was granted interim relief to attend his father’s funeral free from handcuffs and to be able to fully participate as Chief Mourner.

***

The Claimant was represented by Ramby de Mello and Tony Muman instructed by Stuart Luke of Bhatia Best Solicitors, Nottingham.

Caveat: the above summary of the Court’s judgment is provided for information only and should not be relied on for any other purpose. It is taken from counsel’s note of the ex tempore judgment as best counsel’s ageing hand was able to keep up.