Newsflash Professional Discipline 4th Jan 2023

An Application by Patricia Downey For Judicial Review [2022] NICA 67, 2022 WL 17340800

If it looks like a duck, and it quacks like a duck, then the coroner has demonstrated apparent bias.

As the court touched on in Morahan, Article 2 and legal aid have a somewhat uncomfortable relationship. The need to secure funding encourages protracted and disproportionate struggles to demonstrate Article 2 is engaged. More unusually, in the instant case the coroner’s comments to the Legal Services Agency (“LSA”) on the application of Article 2 were sufficient to show apparent bias and justify his recusal.

Ms Downey’s daughter died on 3 September 2017. The decision was made initially not to hold an inquest. Ms Downey asked the Attorney General to reopen the matter. He did so, pursuant to s. 14(1) Coroners Act (NI) 1959. In doing so he commented:

Although the immediate cause of death was established soon after it occurred, the circumstances which brought Michelle to take her own life have not been examined. … Although the scope and focus of the inquest is for the coroner conducting it to decide, given that Michelle had been recognised by the state as doubly vulnerable, both as a person receiving mental health services and as a victim of crime, and the state had a heightened responsibility towards her, in my view, an inquest is an appropriate vehicle for the circumstances of Michelle’s death to be examined. The Belfast Trust conducted its own significant event audit; this is not without value but would not be sufficient to discharge the obligations which I believe to arise under Article 2 ECHR would not be sufficient to discharge the obligations which I believe to arise under Article 2 ECHR.” [Court’s emphasis]

Ms Downey agreed with this view on the application of Article 2.

In the course of several Pre-Inquest Reviews between February and July 2020 the coroner indicated that his provisional view was that Article 2 was not engaged. Counsel for Ms Downey indicated that an application was pending for legal aid and once this had been determined detailed submissions on Article 2 would be forthcoming. The Attorney General also provided written submissions setting out his views on the application of Article 2. The coroner considered the Attorney General had no standing to make such observations but the family made plain it adopted his submissions. Notwithstanding this, the coroner maintained his provisional view. Indeed, he went as far as to comment: “I read the Attorney’s submissions, I disagree with his view. I understand Article 2, perhaps more than anyone in terms of inquests.” [Court’s emphasis] The position remained, therefore, that the coroner knew Article 2 was in issue, and the family was awaiting funding in order to make written submissions on this issue.

On 4 August 2020 the coroner received a questionnaire from the LSA. He provided a response without informing any interested persons. On 5 August 2020 the LSA sent Ms Downey’s solicitors an email which condensed the coroner’s responses to four questions into the following response:

This is not a complex case. The family will be able to effectively participate without legal representation. Legal representation for the family will not be necessary to assist me. This is not an Article 2 ECHR inquest and involves relatively straight forward factual issues. I have instructed coroner’s counsel who will be able to assist the next of kin.” [Court’s emphasis]

This response underpinned an application for the coroner to recuse himself. He refused. The High Court agreed with him and in due course the matter came before the Court of Appeal.

The court reviewed the authorities on apparent bias, more particularly where this arises on the basis of the judge predetermining an issue. It summarised the position in this way:

As is clear from the authorities the test applied by the courts in the context of predetermination and the appearance of predetermination is: would a fair-minded and informed observer, knowing the facts, think that there was a real possibility that the decision-maker had predetermined the matter to be decided….

the court (i) must ascertain all the circumstances which have a bearing on the suggestion that the tribunal was biased and (ii) it must ask itself whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility that the tribunal was biased.”

Applying these principles, it expressed concern about the coroner’s attitude and approach to responding to the LSA’s email. The application for funding was to enable Ms Downey to make written submissions in Article 2. This was all the more important given the coroner had indicated his view – without reasons and in the absence of argument – that Article 2 was not engaged. This view was expressed despite the observations of the Attorney General when he ordered a new inquest and the “weighty” reasons behind this decision. The coroner had indicated he was prepared to consider written submissions yet he provided an unnuanced response to the LSA on this highly contentious issue, which was likely to undermine the ability of the family to secure funding and therefore make submissions on this very issue:

Completing the responses to the 4 questions in the questionnaire required mindful application to the demands of the task and levels of care appropriate to the potential consequences that may flow from it. Given this context anyone scrutinising the output from the Coroner might legitimately expect that he ‘said what he meant and he meant what he said.’ What he said was ” “this is not an Article 2 ECHR inquest“ ” This is an unequivocal sentence presented as if it was a statement of fact – at least in the mind of the Coroner. Question 2 (c) is set out at para [49] above. The question asked was “is legal representation of the bereaved family necessary to assist you to investigate the facts effectively and establish the facts”. The question did not mention the ECHR at all. The coroner knew that the appellant sought to contend that Article 2 was engaged. The next of kin had also made clear to the Coroner that they wouldn’t be in a position to make their written submissions until the issue of funding had been decided. Despite this the Coroner took the uninvited and unnecessary step of expressing in absolute and unqualified terms that “this is not an Article 2 ECHR inquest” even though he knew that this was a critical matter in dispute, upon which he had yet to receive submissions from the next of kin and in respect of which there had yet to be a hearing to determine the point. In expressing himself in this unqualified manner he must have appreciated that might lead to a refusal of funding and, in that event, a consequential inability on the part of the next of kin to participate or furnish written submissions on the Article 2 issue. It is a concern to us that the Coroner gave such a definitive and materially incomplete response to another public authority particularly given the importance of what was at stake

The coroner maintained his comment to the LSA was just a poor choice of words. This did not impress the court:

We are reminded of the layman’s test for how to recognise a duck: ‘if it looks like a duck and it quacks like a duck….’ the inevitable conclusion must follow. In the present case the Coroner’s response does look like a concluded view, as he has acknowledged on affidavit, and is certainly expressed as such.”

Not only does this case provide a helpful summary of the law of bias, and predetermination, but it should also remind courts that a dose of judicial humility may be no bad thing.


Christopher Geering


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