SC, Re Judicial Review [2011] ScotCS CSOH_124 (03 August 2011)

SC, Re Judicial Review [2011] ScotCS CSOH_124 (03 August 2011)

The petition for judicial review is incompetent because the Ministry of Defence's letter of 6 June 2011 did not constitute a reviewable decision affecting legal rights or interests, but merely stated an intention to release the body to the party believed entitled at law. The supervisory jurisdiction of the Court of Session does not extend to operational choices or statements of intention not grounded in legally circumscribed powers. Even if Article 8 ECHR is engaged, any interference is according to law and justified, as the executor has the legal right to arrange the funeral. The proper remedy for the petitioner, if any, lies in an ordinary action, not judicial review.

Citation
[2011] ScotCS CSOH_124
Parties
Pursuer: Mrs S C; First Respondent: Advocate General for Scotland (representing Secretary of State for Defence); Second Respondent: Mother of the deceased (name not specified)
Jurisdiction
Scotland
Judgment Date
03 August 2011
Procedural Posture
Judicial Review / First Hearing and Judgment on Competency
Outcome
Petition dismissed as incompetent
Legal Topics
Judicial Review Competency, Funeral Arrangements, Article 8 ECHR (right to Respect for Family Life), Executor's Rights, Prerogative Powers, Supervisory Jurisdiction
Administrative Law Human Rights Law Family Law Judicial Review Competency Funeral Arrangements Article 8 ECHR (right to Respect for Family Life) Executor's Rights Prerogative Powers +1 more

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Parties

Mrs S C

Pursuer

Advocate General for Scotland (representing Secretary of State for Defence)

First Respondent

Mother of the deceased (name not specified)

Second Respondent

Procedural Posture

Judicial Review / First Hearing and Judgment on Competency

Legal Issues

  1. 1 Whether the decision of the Ministry of Defence to release the deceased's body to the executor (mother) rather than the widow is amenable to judicial review
  2. 2 Whether the widow's Article 8 ECHR rights are engaged and/or infringed by the decision
  3. 3 Whether the Court of Session has supervisory jurisdiction over the decision in question

Ratio Decidendi

The petition for judicial review is incompetent because the Ministry of Defence's letter of 6 June 2011 did not constitute a reviewable decision affecting legal rights or interests, but merely stated an intention to release the body to the party believed entitled at law. The supervisory jurisdiction of the Court of Session does not extend to operational choices or statements of intention not grounded in legally circumscribed powers. Even if Article 8 ECHR is engaged, any interference is according to law and justified, as the executor has the legal right to arrange the funeral. The proper remedy for the petitioner, if any, lies in an ordinary action, not judicial review.

Court Disposition

Petition dismissed as incompetent

Orders

  • Petition for judicial review dismissed
  • No order as to interdict or specific implement, as these were not insisted upon