Pounder (2), R (on the application of) v HM Coroner for the North & South Districts of Durham & Darlington & Ors

A coroner should recuse himself where a fair-minded and informed observer, having considered the relevant facts, would conclude that there was a real possibility of apparent bias. This may arise where the coroner has expressed concluded views on important factual issues that must be investigated at a fresh inquest, particularly where the coroner controls the scope of the inquiry and the calling and examination of witnesses. Participation in judicial review proceedings, an adverse costs order, or an error of law does not, without more, establish apparent bias. A coroner’s statutory duty to conduct inquests does not make delegation irrational merely because an inquest is difficult or controversial.

The claimant, the mother of Adam Rickwood, challenged the coroner’s refusal to recuse himself from a fresh inquest into her son’s death in custody. Blake J had previously quashed the first inquest and remitted the matter for a fresh inquiry after finding that the coroner had failed to rule on the lawfulness of the restraint used shortly before Adam’s death: [2009] EWHC 76 (Admin).

The claimant alleged that the coroner had predetermined whether the restraint caused the death and whether Serco witnesses honestly believed that the restraint was lawful. She also sought an indication that the fresh inquest should be conducted by a senior judge or other suitably qualified person.

1. Apparent bias. The applicable test was whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased. The observer is neither unduly sensitive nor complacent, and is taken to know the relevant law and to have considered the tribunal’s explanation.
2. The coroner’s formal grounds and skeleton argument in the earlier judicial review contained firm conclusions that the restraint had not caused the death and that the Serco staff had honestly believed that they possessed lawful authority. The coroner could not dissociate himself from those written documents merely because counsel had drafted them.
3. The causation issue and the honesty of the Serco witnesses were important matters for the fresh inquest. The coroner controlled the scope of the inquest, decided which witnesses to call, and examined them. In those circumstances, the fair-minded and informed observer would perceive a real possibility of apparent bias. The coroner was therefore required to recuse himself.
4. The coroner’s scepticism about the honesty of the Youth Justice Board witness did not materially add to the apparent bias case. Nor did the coroner’s full participation in the judicial review, his instruction of counsel, his attendance at the hearing, the costs order, or the errors identified by Blake J. Those matters did not demonstrate animosity or predetermination.
5. The claim that it was irrational for the coroner to perform his statutory duty merely because the inquest was difficult, lengthy, high-profile or controversial was rejected. Under the Coroners Act 1988, the coroner ordinarily retained the duty to conduct the inquest, although the statutory provisions permitted a deputy or assistant deputy coroner to act in an appropriate case.
6. The fresh inquest would have to be conducted by an ad hoc deputy or assistant deputy. The appointee required sufficient judicial and coronial experience to manage a lengthy and difficult inquest, determine its scope, rule on legal issues, direct the jury and formulate appropriate questions. The candidate need not be a serving or retired senior judge.

High Court (Administrative Court): the claim for judicial review was allowed to the extent that the coroner was required to recuse himself from the fresh inquest. The fresh inquest was to be conducted by an appropriately qualified ad hoc deputy or assistant deputy coroner.

The earlier judicial review had resulted in the first inquisition being quashed and the matter being remitted for a fresh inquiry: [2009] EWHC 76 (Admin).