Heath, R (on the application of) v The Home Office Policy and Advisory Board for Forensic Pathology

A minister may establish and maintain an administrative regulatory scheme either under the prerogative or as executive action, and the scheme remains subject to judicial review. Procedural rules governing disciplinary processes need not anticipate every eventuality. Gaps may be filled by the responsible body, provided the process remains fair and capable of achieving justice.

A notice requirement intended to prevent prejudice is ordinarily procedural rather than jurisdictional. Failure to comply strictly does not invalidate subsequent proceedings where adequate opportunity to respond has been given. Administrative functions may be delegated to departmental officials. At a preliminary screening stage, the committee’s task is limited to deciding whether complaints warrant referral; substantive determination belongs to the disciplinary tribunal.

Dr Michael Heath, a registered forensic pathologist, sought judicial review of the complaints and disciplinary procedures operated by the Home Office Policy and Advisory Board for Forensic Pathology and of the QASSC’s decision to refer complaints concerning his expert evidence in two murder trials to a disciplinary tribunal.

He challenged the Board’s legal authority, the adequacy of its procedures, compliance with its 28-day notice requirement, the authority of its Secretary, alleged apparent bias, and the refusal to postpone consideration. Earlier referrals had been abandoned after procedural defects were acknowledged, and the process was recommenced. The central issues were whether the fresh referral was lawful and whether the preliminary screening process had been conducted fairly.

1. Application dismissed. The establishment of the Board and its accreditation and disciplinary arrangements was within the Home Secretary’s power. It was unnecessary to determine whether the arrangements rested on the Royal Prerogative or constituted executive action. In either event, they were amenable to judicial review.
2. The complaints procedure was not rendered unlawful merely because it did not provide expressly for every procedural contingency. The governing requirement was fairness. Procedural gaps could be filled by the responsible body and, where necessary, by the disciplinary tribunal exercising its intrinsic duty to observe natural justice and conduct proceedings fairly.
3. Paragraph 1.2 of the Constitution required early notice to minimise prejudice. It was procedural and directory, not a condition precedent to jurisdiction. The abandonment of the earlier referrals permitted a fresh process. The claimant was given the complaints and a fresh 28-day opportunity to respond, which was sufficient.
4. The Board could delegate administrative and procedural functions to its Secretary. The screening process was preliminary and did not determine substantive rights or obligations. The disciplinary tribunal was the stage at which the complaints would be determined and fairness secured.
5. The alleged relationship between Dr Purdue and the claimant did not create a real possibility of bias. Applying the fair-minded observer standard, and having regard to the limited nature of the QASSC’s referral decision, no recusal was required.
6. The QASSC had considered the claimant’s representations and request for an adjournment. It was entitled to conclude that sufficient time and information had been provided. The request for trial transcripts and further delay was excessive, and the claimant’s concerns about the merits of the complaints were matters for the tribunal.
7. The disciplinary proceedings should proceed without further delay. Any issues concerning the applicable procedural rules could be raised before the tribunal, which was required to provide a fair, impartial and just hearing. Costs followed the event; an interim payment of £30,000 was ordered, and permission to appeal was refused.