Factual and Procedural Background
This opinion concerns an appeal from a decision of the High Court of Justice in Northern Ireland dismissing an application for judicial review challenging a Coroner's refusal to recuse himself from hearing an inquest into the death of the Appellant's daughter.
The Appellant is the mother and next of kin of the deceased, who was found dead at her home. Initially, a Coroner decided not to hold an inquest. The Appellant requested the Attorney General to reconsider, resulting in a direction for an inquest pursuant to the Coroners Act (NI) 1959. The Attorney General considered that the inquest should examine whether Article 2 of the European Convention on Human Rights (ECHR) was engaged, given the deceased's vulnerabilities and state responsibilities.
Pre-inquest reviews were held, during which the Coroner expressed provisional views that Article 2 was not engaged and that the police should not be added as a Properly Interested Person (PIP), though the Trust was later added as a PIP. The Appellant sought to make detailed submissions on the Article 2 issue but awaited exceptional funding from the Legal Services Agency (LSA) to do so.
The Attorney General provided detailed submissions supporting Article 2 engagement. However, the Coroner maintained a provisional view that Article 2 was not engaged, despite not having received the Appellant's submissions due to funding delays.
In August 2020, the Coroner responded to a questionnaire from the LSA concerning the funding application. In this response, he stated unequivocally that "this is not an Article 2 ECHR inquest," without qualification or prior consultation with the Appellant. This communication was pivotal in the Appellant's challenge.
The Appellant requested the Coroner's recusal on grounds of actual and/or apparent bias arising from this communication and the Coroner's handling of Article 2 submissions. The Coroner refused to recuse himself, leading to judicial review proceedings and this appeal.
Legal Issues Presented
- Whether the Coroner exhibited actual bias by predetermining the Article 2 ECHR issue prior to hearing submissions.
- Whether there was a real possibility of apparent bias arising from predetermination by the Coroner on the Article 2 issue.
- Whether the Coroner ought to have recused himself from hearing the inquest on these grounds.
Arguments of the Parties
Appellant's Arguments
- The Coroner communicated a concluded view to the LSA that Article 2 was not engaged, thereby predetermining a central issue in the inquest.
- This communication was unqualified and made without inviting or waiting for the Appellant's submissions, effectively closing the Coroner's mind.
- Such predetermination constitutes actual bias contrary to common law.
- Alternatively, on an objective appraisal, a fair-minded and informed observer would conclude there was a real possibility of apparent bias.
- The Coroner's public statements and refusal to consider submissions on Article 2 reinforce the appearance of bias.
- The only remedy to preserve fairness is Coroner's recusal from the inquest.
Respondent's Arguments
- The Coroner had only formed a provisional view on the Article 2 issue, openly expressed throughout the proceedings.
- He remained open to receiving submissions and had not reached a final decision.
- The response to the LSA questionnaire was a poor choice of words but not indicative of a closed mind.
- The Coroner allowed additional time for submissions and explicitly stated he would consider them before concluding.
- The Coroner denied actual bias and contended that the Attorney General’s submissions had no standing after the direction to hold the inquest.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| Re Medicaments (No. 2) [2001] 1 WLR 700 |
Distinction between actual bias and apparent bias; definition and tests for bias. |
Used to explain the concepts of actual and apparent bias and the approach to allegations of bias. |
| Porter v Magill [2001] UKHL 67 |
Test for apparent bias based on the fair-minded and informed observer standard. |
Applied to assess whether there was a real possibility of bias or predetermination by the Coroner. |
| Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117 |
Two-stage process for apparent bias: ascertain circumstances and apply fair-minded observer test. |
Outlined the method for assessing apparent bias in the context of the case. |
| Helow v Secretary of State for the Home Department [2008] UKHL 62 |
Attributes of the fair-minded and informed observer and the real possibility test for bias. |
Clarified the nature of the observer and the objective approach to apparent bias. |
| Georgiou v Enfield London Borough Council [2004] EWHC 799 (Admin) |
Predetermination can be a form of bias; judicial remarks evidencing closed mind. |
Supported the proposition that predetermination equates to bias for judicial review purposes. |
| Lewis v Redcar and Cleveland [2009] 1 WLR 83 |
Distinction between disposition and predetermination; application of Porter v Magill test. |
Guided the court on evaluating evidence of closed mind and appearance of predetermination. |
| London Borough of Southwark v Jiminez [2003] EWCA Civ 502 |
Application of the Porter v Magill test in apparent bias and predetermination context. |
Referenced as authority affirming the fair-minded observer test. |
| R (Island Farm Development Limited) v Bridgend County Borough Council [2007] LGR 60 |
Clarification that predisposition is not predetermination; need for positive evidence of closed mind. |
Used to emphasize the need for clear evidence of closed mind for bias finding. |
| R v Amber Valley District Council, Ex Parte Jackson [1985] 1 WLR 298 |
Predisposition towards outcome is legitimate; predetermination is objectionable. |
Applied to distinguish lawful predisposition from unlawful predetermination. |
| Re Foster [2004] NI 248 |
Requirement for clear evidence to prove actual bias; seriousness of allegation. |
Referenced to underscore the high evidential threshold for actual bias claims. |
Court's Reasoning and Analysis
The court began by acknowledging the serious nature of an allegation of actual bias, requiring clear evidence. It noted that actual bias arises when a decision-maker’s impartiality is compromised by partiality or prejudice.
Given the difficulty of proving actual bias, the court focused primarily on the appearance of predetermination as a form of apparent bias. The applicable test is whether a fair-minded and informed observer, aware of all relevant facts, would conclude there is a real possibility that the decision-maker had predetermined the issue.
The court considered the Coroner’s unqualified statement in the LSA questionnaire that "this is not an Article 2 ECHR inquest," recognizing this as a clear and unequivocal position expressed without qualification or consultation with the Appellant. The Coroner acknowledged on affidavit that this could be read as a closed mind, describing it as a "poor choice of words," but the court found no practical reason why a qualification could not have been included.
The court noted the importance of the questionnaire in the context of the Appellant’s funding application, which was critical for enabling the Appellant to make submissions on the Article 2 issue. The Coroner’s statement, if accepted by the LSA, risked denying funding and thus foreclosing the Appellant’s ability to participate effectively.
The court also reviewed the Coroner’s repeated public statements expressing a provisional view that Article 2 was not engaged, sometimes in trenchant terms, before receiving the Appellant’s submissions. The Coroner’s dismissal of the Attorney General’s submissions and assertion of superior expertise further undermined confidence in his impartiality.
Applying the legal principles and precedents, the court concluded that the totality of circumstances—including the unqualified statement, the timing, and the treatment of submissions—would lead a fair-minded and informed observer to conclude there was a real possibility of predetermination and thus apparent bias.
Accordingly, the court found that the Coroner ought to have recused himself when requested.
Holding and Implications
Holding: The appeal is ALLOWED. The Coroner should have recused himself from hearing the inquest on the grounds of apparent bias arising from predetermination of the Article 2 issue.
Implications: The direct effect is that the Coroner’s refusal to recuse himself was unlawful and the inquest must be heard by a different Coroner. No new legal precedent is established beyond the application of existing principles to the facts of this case. The decision reinforces the importance of judicial impartiality and the need for decision-makers to avoid premature or unqualified statements on contested issues, especially when such statements may affect procedural rights such as funding and participation.