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Emily Wilsdon, instructed by Angelina Kennedy (GLD) represented the Secretary of State for Justice at a judicial review permission hearing, before Mr Justice Griffiths in Aspire Memoria Limited v Secretary of State for Justice.
Section 5 of the Cremation Act 1902 prohibits the construction of a crematorium less than 50 yards from a public highway. The Claimant constructed a crematorium knowingly in breach of this provision.
The MoJ subsequently refused to appoint a medical referee for the unlawful crematorium under the Cremation (England and Wales) Regulations 2008.
The Claimant challenged this decision, and argued that the MoJ was obliged to appoint a medical referee, notwithstanding the Claimant’s breach of s. 5 of the 1902 Act.
The Claimant also argued that s. 8(1) of the 1902 Act, which includes that any person who knowingly carries out or procures or takes part in the burning of any human remains except in accordance with the provisions of the Act commits a summary offence, did not apply to breaches of the 50 yard rule in s. 5 of the Act.
The Court found that it was not arguable that the MoJ should have granted the application for appointment of a medical referee. The scope of the duty to appoint a medical referee pursuant to regulations 6 and 7 of the Cremation (England and Wales) Regulations 2008 did not arguably extend to applications made in relation to crematoria constructed in breach of the 1902 Act.
The Court also found that the criminal offence created by s. 8 of the 1902 Act did apply to breaches of s. 5 of the Act.
The Court therefore refused permission to the Claimant to proceed with the judicial review claim.
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