London Borough of Southwark, R (on the application of) v London Fire and Emergency Planning Authority & Anor

In assessing apparent bias in a public authority’s decision to investigate or prosecute, the court applies the objective test of whether a fair-minded and informed observer would conclude that there was a real possibility of bias. The assessment is fact-specific and requires consideration of all relevant circumstances. A fire authority’s separate responsibilities for fire safety, fire-fighting and enforcement do not inevitably create a conflict. The relevant question is whether the alleged fire-safety breaches concern the condition of premises before the fire, rather than the authority’s conduct during the fire-fighting operation. Institutional separation, independent legal advice and judicial safeguards may be material. A later request to reconsider an extant decision does not create a new decision, absent new facts justifying a change of approach.

Southwark sought judicial review of the London Fire and Emergency Planning Authority’s decision to retain responsibility for investigating and potentially prosecuting alleged breaches of the Regulatory Reform (Fire Safety) Order 2005 arising from the Lakanal House fire. Southwark argued that the Authority’s roles in advising on fire safety, operating the London Fire Brigade and investigating the incident created an apparent conflict of interest, and that responsibility should be transferred to the Health and Safety Executive under Article 26(3) of the Order.

The Authority maintained that its investigation and prosecution arrangements were impartial. The court considered apparent bias, immaterial considerations, abuse of power, and whether a later refusal to change the decision constituted a separate decision.

1. The application was dismissed. The Authority was entitled to retain responsibility for the investigation and any decision whether to prosecute.
2. A refusal to change the decision of 10 July 2015 did not create a fresh decision or restart the judicial-review time limit, absent new facts justifying a different approach.
3. Apparent bias was assessed objectively by asking whether the fair-minded and informed observer, having considered the relevant circumstances, would conclude that there was a real possibility of bias. The test was fact-specific and was not based on the litigant’s instinctive or emotional view.
4. The alleged offences concerned the state of Lakanal House before the fire and whether that state created a risk of death or serious injury. The Fire Authority’s conduct during the fire-fighting operation was therefore immaterial. The condition of the premises could be assessed through documented evidence and expert analysis.
5. The Authority’s provision of a standardised training course did not create a conflict. Southwark’s statutory responsibilities were not shown to be delegable. If the circumstances of the fire became relevant, the inquest findings and independent evidence provided an existing account, and the prosecutor’s role was to assist the court rather than press a view of comparative responsibility.
6. Institutional separation, decision-making by a solicitor in a separate branch, independent counsel and prosecutorial safeguards meant that the process would not appear biased to the fair-minded and informed observer. The claim therefore failed.

First-instance judicial review in the High Court (Administrative Court). No prior appellate decision is stated in the judgment.