UK CREMATION LAW VERDICT
The Court of Appeal ruling was delivered in February 2010 by Lord Neuberger (Master of the Rolls and Britain’s most senior civil judge), Lord Justice Moore-Bick and Lord Justice Etherton.
Baba Ghai’s four year long campaign to clarify UK cremation laws concluded with a ruling that his request to be, “naturally cremated and, like the mythical phoenix, rise from the flames anew,” could, “be accommodated under the Act and the Regulations.”
Baba Ghai was also calling for freedom of choice and a level playing field with the allowances that are made for the last rites of other faith communities in Britain. A number of leading independent organisations, both faith-based and secular, backed the cause and formally joined the legal proceedings in support of Baba Ghai. (Click HERE for more on campaign support)
The Court of Appeal ruled that the Cremation Act 1902 states a number of practical requirements, including that a cremation be performed, “within a building which was appropriately equipped, and to ensure that a crematorium was not located near homes or roads.”
So long as Baba Ghai was willing to be cremated under the 1902 Act’s conditions, his proposal for funeral pyres could be accommodated within the existing law. The only issue contested before the Court of Appeal was how a “building” should be defined in the context of the 1902 Act.
The Court of Appeal rejected the Ministry of Justice’s definition of a building as, “an enclosure of brick, covered in by a roof,” as, “artificially narrow.” Instead, the Court ruled that a structure was a building for the purposes of the 1902 Act if it was, “substantial in its extent, solid in its structure, and relatively permanent in nature.” Reflecting on evidence it was shown of cremation ground buildings in India and other countries, the Court found that a ‘building’ could also comprise of a pillared structure with a partially open roof.
The Court of Appeal did not accept the Ministry of Justice’s submission that the 1902 Act required cremations to be out of public visibility and, in any event, found it was still, “perfectly possible to carry out a cremation away from public gaze in a building with substantial openings in the walls.”
Lord Neuberger referred to the 1884 acquittal of Dr William Price for cremating his son in a field in Llantrisant and Justice Stephen admonition that, “not every practice which startles and jars upon the religious sentiments of the majority of the population is for that reason a misdemeanour at common law”.
The Court of Appeal acknowledged that, “difficulties may be thrown up by planning and public health legislation,” which would turn to be addressed by Planning Authorities as and when they received specific planning proposals. On 17th February 2010 the Court of Appeal issued an Order requiring Newcastle City Council to reconsider its refusal to provide land for a funeral pyre cremation site in February 2006.
The Court’s verdict was based specifically on Baba Ghai’s own claim but it has opened the opportunity for anyone in Britain to be cremated on a funeral pyre – so long as the cremation site complies with the requirements of the Cremation Act 1902.
THE LONG ROAD TO JUSTICE
Baba Ghai’s legal victory was achieved despite a barrage of daunting challenges and came at considerable personal cost and sacrifice.
Despite being a disabled pensioner and the significance of the case, the Legal Services Commission (LSC) twice refused Baba Ghai’s legal aid funding applications, claiming that, “the prospects of obtaining a successful outcome are poor.”
In contrast to the comparatively limitless combined force and funds of the Ministry of Justice and Newcastle City Council, for years, Baba Ghai’s legal campaign survived on personal bank loans and donations from AAFS members. By December 2009, Baba Ghai was in personal debt of £45,000 and also suffered a stroke as a result of the maintaining the campaign.
Initially the leading barristers on the legal team, Mr Rambert de Mello and Mr Tony Muman, had to work for free – and continued to do so at times throughout the following four years – due to the modest budget eventually awarded by the LSC in late 2007.
Indeed, the legal victory was only made possible Mr De Mello and Mr Muman’s sincere belief in the cause and the support offered by AAFS members in every time of need. Hindu organisations, both in the UK and India, were generous in offering written support but less so in other respects and did not donate to the cause.
The High Court refused Baba Ghai’s judicial review in May 2009, Justice Cranston ruling that the Secretary of State for the Ministry of Justice (then Mr Jack Straw MP) was entitled to prohibit funeral pyres on the basis that they would offend public decency – even if performed in private and under trained supervision. The High Court considered a fuller range of arguments than the Court of Appeal, particularly the Article 9 religious freedom, but its findings were entirely set aside in February 2010.