In R (on the application of Matthew Campbell) v. HM Attorney General [2025] EWHC 1653 (Admin) the Divisional Court considered the justiciability of decisions of the Attorney General to refuse to grant fiat to apply to open a fresh inquest.

Almost a quarter of a century after the terrorist attack on the World Trade Centre and the Pentagon, the personal pain and tragedies of that day are still echoing through our legal systems. One such echo is a claim for judicial review that was brought by Matthew Campbell – the brother of Geoffrey Campbell, who was killed on 11 September 2001 – against the Attorney General.

The claim relates to the refusal of the Attorney General to authorise a claim (so-called Attorney General’s fiat) to order a fresh coroner’s inquest. This means of revisiting a coroner’s inquest after a conclusion has been reached by a coroner in a case is set out in section 13(1)(b) of the Coroners Act 1988, which provides that a fresh inquest may be ordered:

[…] where, on an application by or under the authority of the Attorney-General, the High Court is satisfied as respects a coroner […]

(b)  where an inquest or an investigation has been held by him, that (whether by reason of fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise) it is necessary or desirable in the interests of justice that an investigation (or as the case may by, another investigation) should be held.

On 29 January 2013 HM Coroner for West London concluded:

‘At 8.46am on 11 September 2001 the deceased was on the 106th floor of the North Tower of the World Trade Centre when an aircraft (AA11) was deliberately flown into the building, causing its collapse at 10.28am. This event was part of a coordinated attack by the Islamist militant group Al Qaeda.’

Matthew Campbell did not and does not accept that conclusion, or the terrible facts of those atrocities which most of us now accept as settled history. He believes that the North Tower collapsed as a result of the detonation of pre-planted explosives or incendiaries within the tower. He submitted a large volume of documentary material to the Solicitor General, who, exercising the function of the Attorney General for these purposes, refused to grant fiat, describing Mr Campbell’s contentions as ‘fanciful’ and ‘simply not credible’. Mr Campbell brought proceedings in the High Court to challenge that refusal.

The crucial issue in the case was whether, as a preliminary issue, the decision of the Attorney General was one which was even capable in law of being challenged by way of judicial review: whether it was justiciable.

The Court examined a large catalogue of case law relating to the exercise by the Attorney General of various functions granted to him by statute, by royal prerogative and by custom. The principle that his decisions are not justiciable dates at least as far back as ex p. Newton (1855) 24 LJQB 247. In that case, the Attorney General had refused his fiat for a writ of error in a criminal case.  Campbell CJ held that the courts could not review that decision. The case more often cited as the basis for the non-justiciability of the Attorney General’s decisions is Gouriet v Union of Post Office Workers [1978] AC 435. In that judgment, Lord Fraser held:

‘If the Attorney-General were to commit a serious error of judgment by withholding consent to relator proceedings in a case where he ought to have given it, the remedy must in my opinion lie in the political field by enforcing his responsibility to Parliament and not in the legal field through the courts. That is appropriate because his error would not be an error of law but would be one of political judgment, using the expression of course not in a party sense but in the sense of weighing the relative importance of different aspects of the public interest. Such matters are not appropriate for decision in the courts.’

Other cases considered whether the principle in Newton also applied to exercises of the Attorney General’s statutory powers (Newton related to his prerogative powers). Some cases considered whether the principle applied equally to decision to refuse fiat, as well as decisions to grant it. Ultimately, the High Court concluded that the principle in Gouriet applied equally to the decision by the Attorney General to refuse to grant fiat under the 1988 Act:

‘we consider that, on the present state of the law, there is a category of functions of the Attorney General which are immune from review on any ground. We consider that Popplewell J was correct to say, in Ferrante , that “if the principle in Gouriet is now to be treated as no longer good law in relation to the Attorney Generals’ powers it must be for a higher court than me so to say so”.’

The allusion to a higher court was prescient. Mr Campbell has been granted permission to appeal directly to the Supreme Court. The judgment of the Divisional Court went on, after reaching its conclusion, to opine that if their ruling on justiciability were incorrect, then the grounds for challenging the Attorney General’s decision would be extremely limited. That postscript may be a tacit acknowledgment that the highest court may well conclude that the Attorney General’s decisions under the 1988 Act cannot be beyond judicial scrutiny.