Copyright Notice, Limited Permissions, and Disclaimers
R v HER MAJESTY’S CORONER FOR THE
EASTERN DISTRICT OF THE METROPOLITAN COUNTY OF WEST YORKSHIRE
ex parte RONALD SMITH
Queen’s Bench Division
Crown Office List
5 November 1982
Mr Stephen Sedley (instructed by Bindman & Partners London NW1, agents for Howard Cohen & Co., Leeds) for the applicant, Ronald Smith.
Mr Simon Brown (instructed by The Treasury Solicitor) appeared as amicus curiae.
MR JUSTICE WEBSTER: This is an application for judicial review of a decision of Mr Philip Sanderson Gill, Her Majesty’s Coroner for the Eastern District of the Metropolitan County of West Yorkshire, whereby he refused to cause the inquest on the death of Helen Linda Smith to be conducted by a coroner other than himself. The relief sought upon this application is an order prohibiting and restraining Mr Gill from continuing to conduct the inquest into Helen Smith’s death.
The circumstances leading up to this application are as follows, and in summarising them I am borrowing very largely from the words of the Lord Chief Justice when this matter was before the Court of Appeal earlier this year.
Helen Linda Smith was the daughter of Ronald Smith, who is the Applicant in this court. At the material time she was employed as a nurse at a hospital in Jeddah, Saudi Arabia. She died on 20th May, 1979. It is said that she fell to her death from one of the balconies in a block of flays in that city. The circumstances of her fall and death are by no means clear. Her father wishes to have those circumstances formally examined in order to remove some of the obscurity and to determine, if possible, the cause of the girl’s fall and death.
On 17th June, 1989 her body was brought back to England, and at all material times it has been lying in a place over which, since July 1981, Mr Philip Gill, as Her Majesty’s Coroner for the Eastern District of the Metropolitan County of West Yorkshire, has had jurisdiction. The Applicant requested Mr Gill in the first instance to hold an inquest upon the body of his daughter, but Mr Gill, in a letter to the Application on 3rd August last year, refused to hold an inquest, saying
“…her death occurred outside the jurisdiction of the English Courts, and I am satisfied that the case does not fall within my jurisdiction for the holding of an Inquest”.
Mr Smith brought that decision before the Divisional Court for review. The Divisional Court came to the conclusion that the coroner’s view was correct, namely, that he did not have jurisdiction. But Mr Smith appealed from that decision of the Divisional Court to the Court of Appeal, and on 30th July, 1982 the Court of Appeal allowed his appeal and quashed Mr Gill’s decision not to hold the inquest.
The court did not, however, formally make an Order of Mandamus directing Mr Gill to hold the inquest. The matter was dealt with in this way. After their Lordships had given judgment and the question of whether an Order of Mandamus should issue or not was raised by Mr Sedley, the Lord Chief Justice said:
“I would assume, having heard what this Court has to say, that the Coroner would act accordingly. I certainly would not expect an undertaking and I certainly would not issue mandamus, subject of course to liberty to apply in the unlikely event should it become necessary.”
There was also discussion at that stage of the hearing about costs. Mr Sedley, who appeared then on behalf of Mr Smith as he appears in this court now, applied for an order for costs against Mr Gill. Mr Smith in those proceedings was legally aided, but he had had to make a contribution, and Mr Sedley clearly took the view that, although Mr Gill had not appeared in those proceedings to resist the application, none the less his client, Mr Smith, having won the issue as to whether an inquest should be held, was entitled to ask for an order for costs against Mr Gill.
When the matter was raised I note that Lord Justice Donaldson (as he then was) said this (and I do not think that has ever been questioned or challenged)
“…there has been no criticism of him”
– that is to say of Mr Gill –
“of any sort here…”.
Mr Gill was not indemnified in those costs – either his own or any costs that he might be ordered to pay of any other party – by statute; nor had his local authority agreed to pay his costs. Those matters having been made clear to the Court of Appeal, the Lord Chief Justice said this:
“I think the best thing to do, Mr Sedley, is this, unless you can suggest anything better, to make no order at the moment as to costs but give you liberty to apply, which will give everybody time to sort the matter out and no doubt when the brains of the Home Office have applied themselves to the matter we will probably find a solution arrived at. Would that be convenient for you?”
to which Mr Sedley answered:
“I am sure it will.”
In consequence, an order having been made quashing Mr Gill’s decision not to hold the inquest, the formal order was made that the Applicant, Mr Smith, would have liberty to apply for an Order of Mandamus and for costs.
What happened after that was as follows. On 2nd August, 1982 Mr Smith’s solicitors wrote a letter to Mr Gill in which they said:
“As you will know, both at the Divisional Court and at the Court of Appeal Counsel for Mr Smith has never sought to rely upon any suggestion or inference that you might not be the proper person to carry out any Inquest into the death of Helen Smith if one were to be held. Nevertheless, given the attendant publicity in this case from start to finish, it could be felt in certain quarters, as we are sure you will appreciate, that you could be in one sense a ‘partie pris’ to what has gone before and we write therefore to ask whether you might find it expedient in this particular case to exercise your power under section 2 of the 1980 Act to ask a neighbouring Coroner to hold the Inquest into this death.”
I will refer later in a bit more detail to that section of that Act.
Mr Gill relied the very next day, on 3rd August, to that letter saying, inter alia:
“I do not consider that there are any ground which would justify my seeking to transfer the case to any other Coroner.”
The letter goes on to deal with matters relied upon at one time or another when the suggestion was made and I do not need to deal with those matters at this stage.
Consequently, on 16th August, 1982 Mr Gill formally opened the inquest into the death of Helen Smith. At the outset of those proceedings Miss Bundey a solicitor instructed on behalf of Mr Smith, submitted to Mr Gull that he ought not to conduct the inquest himself. Mr Gill again rejected that submission and the inquest is due to be reopened on the 18th of this month. It is in these circumstances that Mr Sedley on behalf of Mr Smith applies for an order prohibiting Mr Gill from further conducting the inquest on the ground that, it is alleged, he is disqualified by reason of bias because, submits Mr Sedley, in all the circumstances a reasonable observer would fear that there is or might be bias on the part of Mr Gill. Although at one stage it appeared that there might have been certain technical objections to Mr Smith obtaining such an order, no-one would want this application to be concerned primarily with technicalities or for it to be decided on a technicality if that can be avoided. I shall first consider, therefore, the merits of the application.
I take the test of bias in a case such as this from a dictum of Lord Denning in Metropolitan Properties (F G C) Ltd v. Lannon & Ors  1 Q.B. 577 at page 599, where Lord Denning said this:
—that is to say the tribunal in question—
“ was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit.”
Then he cites two authorities to which I need not refer and continues:
“Nevertheless there must appear to be a real likelihood of bias. Surmise or conjecture is not enough”.
He cites other authorities and then concludes with these words:
“There must be circumstances from which a reasonable man would think it likely or probable that the justice, or chairman, as the case may be, would or did, favour one side unfairly at the expense of the other. The court will not enquire whether he did, in fact, favour one side unfairly. Suffice it that reasonable people might think he did. The reason is plain enough. Justice must be rooted in confidence: and confidence is destroyed when right-minded people go away thinking: ‘The judge was biased’”.
Applying that test to the issues raised in this case, I have to ask myself whether a reasonable man would think it likely or probable that there would be bias of one kind or another on the part of Mr Gill if he were to proceed with the conduct of the inquest.
In the base of Hannam v Bradford Corporation  1 W.L.R.937 Lord Justice Cross (as he then was) at page 949 did not use the words “likely or probable” which I have just used, having taken them from the dictum of Lord Denning, but the words “might or might well”. I will assume for the purpose of this application that that is the correct test to apply, namely, would as reasonable main think that there might be bias of one kind or another on the part of Mr Gill because that is the test which is the most favourable to the Applicant, Mr Smith.
Two other questions arise before I apply that test to the facts of this case. The first is: at what time does the notionally reasonable man notionally look at the facts? In my view, he does so at the time at which the supervising court – in this instance this court – is asked to review the matter; that is to say today rather than August 1982 if the facts have changed in the meantime. This is because in this case the question is not whether there was bias when Mr Gill opened the inquest in August 1982, but whether there will appear to be bias when he reopens it on 18th November.
The second question is: what are the facts which the notionally reasonable man notionally looks at? Does he look just at the facts known to the Applicant? Does he look at the facts know to the main in the street. who reads the newspapers and, if so, what newspapers? Or does he look at the totality of the evidence before the supervising court?
In my view, the answer to that question, from which neither Mr Sedley nor Mr Simon Brown (who has appeared as amicus curiae in this case) dissent, is the answer I gave in a similar context in the case of Steeples v. Derbyshire County Council reported in the Journal of Planning and Environment Law for August 1981 page 582 at page 586, namely, that the reasonable man is to be taken to know all matters, whether in fact known or available to the public or not, which are in evidence upon the hearing of the application.
I should mention one final authority to which Mr Sedley referred before considering the facts, and that is the decision of the Court of Appeal in Ex parte Church of Scientology of California reported in The Times of 21st February, 1978 when an application to the court, presided over by Lord Denning, was made that an appeal that was pending before the court should be transferred from his, Lord Denning’s, court on the ground that the party making the application felt that there was an unconscious influence operating adversely to that party, was not that there would be any unconscious bias in fact but that the applicant believed that there would be an unconscious influence operating adversely to it, and that if that belief was not wholly unreasonable then that might be a ground for transferring the matter elsewhere. In the event the Court of Appeal acceded to that application and the matter was transferred elsewhere.
But in my view, that decision has nothing at all to do with the question of bias that is raised in this case. That was merely, as I understand it, an instance of a ground which may be relied upon when a tribunal has a discretion whether or not to transfer a case from it to some other tribunal.
It is a decision which may be relevant in this case to the discretion of the coroner under section 2(1) of the Coroner Act, 1980, which has already been mentioned and to which I shall refer at the end of this judgment.
But in the meantime I turn to the merits of this application. Mr Sedley submits that the reasonable man would think that there might be a bias on the part of Mr Gill for any one or more of four reasons.
The first is that Mr Gill had previously accepted jurisdiction to hold an inquest into the death of a person who had died abroad but that on this occasion he changed his mind and at first refused to do so.
The second ground is that it was alleged at one time that Mr Gill had personal links with a person or persons said to be present on the occasion when Helen Smith died.
The third ground relates to Mr Smith’s right to apply for an order for costs against Mr Gill personally in respect of the first application which Mr Gill made to this court.
The fourth ground is an allegation that Mr Gill has prejudged the verdict, of one or more of the issues which will arise at the inquest.
As to the first of those four grounds, Mr Sedley contends that the change of mind, from that in which Mr Gill was willing to accept jurisdiction in the case of a person who had died abroad to one in which he refused to accept that jurisdiction, raises the implication or inference that he had refused to accept jurisdiction in this case because he wanted to avoid holding the inquest and that the motive for his wanting to avoid holding the inquest was that he was associated with some alleged attempt to cover up the circumstances of Helen Smith’s death.
The evidence upon which Mr Smith relies in relation to the earlier inquests is that it was common ground that Mr Gill himself had in the recent past opened two inquests on person who had died abroad and whose bodies had been brought back to this area, one of whom had died in Yugoslavia in 1979 and the other of whom had died in Spain in 1980.
As to those matters, in his evidence before this court Mr Gill, by his affidavit, says that it is true that he had conducted or opened an inquest in those two cases and that this had been in consequence of views expressed by text book writers that he had a discretion which could be exercised to assist relatives in non-controversial cases. It is the case that such views were expressed by text book writers, although as a result of the decision of the Court of Appeal those views are now seen to have been wrong in that it is not a question for his discretion.
As to his reasons for refusing in the first instance to hold the inquest in this case, Mr Gill in his affidavit said this:
“Following my dealing with [those] cases…and in view of all the difficulties and uncertainties I had experienced I consulted with senior colleagues regarding the legal position of the Coroner in such matters.”
He means matters where the person had died abroad. His affidavit continues:
“After most careful research into and consideration of the law I came to the conclusion that an English Coroner did not possess jurisdiction to enquire into deaths which had occurred outside the realm…”.
Elsewhere he gives a little bit more detail, in that it appears that the opinion of counsel about that question was sought and that counsel advised that he did not have jurisdiction. It is only fair to say that that opinion, and Mr Gill’s first decision that he had no jurisdiction, despite the opinion of the text book writers, was an opinion which was shared both by the Divisional Court and by Lord Justice Waller in the Court of Appeal, who dissented from the majority judgments in that court, so that it was an opinion that was held by three out of five of the judges who had considered the question.
In my judgment, it would be fanciful to suggest in those circumstances that a reasonable man would draw from Mr Gill’s refusal to accept jurisdiction in this case any inference that he wanted to avoid holding the inquest for any reason. I therefore, reject the first ground relied upon by Mr Sedley.
The second ground, as I have said, is an allegation that Mr Gill might appear to have links with a person or persons said to be present on the occasion of Helen Smith’s death. The history of that allegation is as follows: In March 1982 Mr Smith’s solicitors wrote to Mr Gill suggest that he might have been personally acquainted with persons directly connected with events relating to the death of Helen Smith, stating in that letter that if that was so it would be inappropriate for him to conduct the inquest. Mr Gill replied to that letter refuting the suggestion. But later in the month Mr Smith swore an affidavit in which he alleged that Mr Gill was acquainted with the family of Mrs Penelope Arnot at who residence the death was said to have occurred. In that affidavit he did not give any details of the alleged acquaintance nor of the basis of the allegation.
Mr Gill swore the very next day an affidavit in which he re-affirmed what he had stated in his letter, namely, that there was no truth in or any basis for the allegation.
At the commencement of the hearing of Mr Smith’s first application to the Divisional Court counsel on behalf of Mr Smith (who, as I have said, was Mr Sedley on that occasion also) unreservedly withdrew the allegation.
It is in relation to this ground in particular that the definition of the facts which the notionally reasonable man is to be taken to know is perhaps most material. I am quite satisfied that no-one, let alone that notionally reasonable man, in circumstances in which (as Mr Sedley accepts and has accepted) the suggestion of any connection between Mr Gill and any person in any way connected with the death was expressly withdrawn, would think that Mr Gill might have any connection with anyone connected with the death and I, therefore, reject that second ground.
The third ground is that Mr Gill might appear to be biased because of Mr Smith’s right to apply for an order for the costs of the first application against Mr Gill in person. I have already related the circumstances in which that right arises. It is unquestionably the case that Mr Smith has a legal right to apply for those costs, but there has never been any suggestion of any misconduct on Mr Gill’s part, and, as Lord Justice Donaldson said in the Court of Appeal, there has not ever been any criticism of him of any sort.
Mr Simon Brown made these submissions as to the practice of this court in relation to the making of orders for costs in cases where an application for judicial review is made against a public judicial body. He submitted that it is singularly unusual for an order for costs to be made against such a body in the absence of any misconduct on its part, even if that body appears at the proceedings to resist the application; but where the body does not appear to resist the application (which Mr Gill did not do on the first application and does not do now), then, in Mr Simon Brown’s experience, he had never known of an order for costs being made against the judicial body in question in the absence of misconduct, I must say that the understanding of the practice accords with my own.
I conclude that, if Mr Gill is not to be indemnified by anyone (that is to say if he would have to pay personally any costs awarded against him), in practice he is at no risk of having any such order made against him. But more pertinently, I am very far from being satisfied that the reasonable observer, even if he did not know of that practice, would think that Mr Gill might be biased in his conduct of the inquest into the death of Helen Smith because her father is entitled to apply for an order for the costs of the first application against him. I, therefore, reject that third ground.
The fourth and last ground is the allegation that the reasonable man would think that Mr Gill might have prejudged the verdict or an issue or issues that might arise at the inquest.
The evidence relied upon in support of that allegation is contained in an affidavit sworn by Mr Gill for the purposes of the first application in which he said this:
“When I was appointed Coroner for the newly formed Eastern District of West Yorkshire, which included the City of Leeds, on the 1st day of July, 1981 II was aware that the body of Miss Smith was lying in the Leeds City Mortuary having been brought there by her father on the 4th day of June, 1980 following her death in Saudi Arabia on the 20th day of May, 1979.
In view of the public speculation which was being generated concerning the case and the prolonged period since her death, I considered it to be desirable that I should indicate clearly and without delay what action (if any) I proposed to take in the matter.
It was apparent to me that, in view of the inconclusive nature of the post-mortem reports, the actual cause of death was impossible of ascertainment in the absence of any eye-witness thereof.
I received no reports of any eye-witnesses nor was anyone who might conceivably have been in the vicinity then or not resident or present in the United Kingdom. Any potential witnesses who might possibly be persuaded to come to the United Kingdom would have incurred very great expense for fares and accommodation and their presence all at the same time, or even at various times convenient for holding any inquiry, seemed most likely.”
I close the quotation and note that that was an affidavit sworn on 22 March 1982. The particular sentence out of that passage on which Mr Sedley relies is the sentence which reads:
“It was apparent to me that, in view of the inconclusive nature of the post-mortem reports, the actual cause of death was impossible of ascertainment in the absence of any eye-witness thereof.”
As to that sentence in the context of that passage, it seems to me that two things should be noted. The first is that all that Mr Gill is saying, as I understand it, is that in view of the inconclusive nature of the post-mortem reports the actual cause -- I underline those words --of death was -- underline that word with slightly different emphasise – was impossible of ascertainment. It has not been suggested that the description of those reports as being inconclusive is wrong, and if it is right I would have thought that it must follow that, if they alone were to be relied upon, it would be impossible to ascertain the actual cause of the death.
The second thing to notice is that Mr Gill qualified that statement by referring to the absence of eye-witnesses. His words, it will be remembered, were
“the actual cause of death was impossible of ascertainment in the absence of any eye-witness thereof.”
At that stage Mr Gill had no evidence from eye-witnesses, nor was there any indication that eye-witnesses would come forward. But that position has now altered and, according to his evidence which of course is to be accepted in this respect, the position now is as follows. I shall quote from his affidavit in which he gives evidence about what transpired after the decision of the Court of Appeal that an inquest should be held. He said:
“I requested West Yorkshire police to make enquiries as a matter of urgency, to trace the present whereabouts of those persons known or believed to be capable of giving relevant evidence at the inquest. It has been ascertained that such persons now reside in various distant parts of the world including Australia, North Borneo, Saudi Arabia, North America, Iraq and various locations in Europe.
As a result of arrangements made many of these persons have now agreed to attend the inquest in spite of initial reluctance, and the long journeys which will be involved.
I have made contact with Dr Mohammed Khair, the pathologist who performed the original post-mortem examination shortly after the death in Jeddah. Although he is no longer resident in Saudi Arabia he has agreed to attend the inquest to give evidence touching the medical cause of death.
Enquiries into the case by West Yorkshire police have been actively continued. These have involved several journeys overseas by officers for the purpose of tracing and interviewing further potential witnesses and obtaining photographs, survey details and plans of the locus for the assistance of the jury at the hearing.
Consultation has taken place with all relevant witnesses, totalling thirty in number, in order to arrange for their attendance all at a convenient time to enable the inquest to be held in Leeds in the period commencing on 18th November 1982.
The making of all these preparations has necessitated the holding of daily conferences between myself and the several police officers concerned.
Further arrangements are still in hand under my direction in respect of the booking and reservation of air flights, accommodation and ancillary matters.
The consent of the West Yorkshire County Council, and authority of the Secretary of State and Minister for the Civil Service, to the expenditure of a sum estimated in the region of £50,000 in respect of travelling, subsistence and accommodation expenses, has been obtained. The final details are now at a critical stage.”
Even without the evidence of those matters, I would be quite satisfied that no reasonable person would think as a result of that passage in the affidavit of Mr Gill sworn in March of this year that Mr Gill might have prejudged any issue which will arise at the inquest. But those matters, the knowledge of which is to be imputed to the reasonable main for the reasons I have already given, to my mind put the question wholly beyond doubt and I, therefore, reject the fourth and last ground.
In these circumstances it is unnecessary for me to consider any procedural problems that might have arisen if I had acceded to Mr Sedley’s submissions on the merits, but I did say that I would mention again at the end of this judgment the provisions of section 2(1) of the Coroner’s Act, 1980 which provide:
“If it appears to a coroner that an inquest ought to be held on a body lying within his area but it is expedient that the inquest should be held by some other coroner he may request that coroner to assume jurisdiction to hold the inquest and if that coroner agrees he, and not the coroner within whose area the body is lying, shall have jurisdiction to hold the inquest.”
It will be remembered that that provision was one upon which reliance was placed by the solicitors acting for Mr Smith when they first asked Mr Gill not to continue to hold the inquest himself.
If the allegation of bias against Mr Gill had been made out (which, in my judgment, it is not), Mr Sedley does not suggest that Mr Gill, when asked to exercise his discretion and refusing to exercise it, exercised it wrongly. He does not suggest that this court can be asked to substitute its own discretion in that respect for the discretion of Mr Gill. Accordingly, no question arises, in view of the decision that I have made as to the allegations of bias, in relation to the exercise of any power under that section. For all these reasons I would discuss this application.
MR SEDLEY: My Lord, before I deal with one consequential matter of legal aid taxation, I wonder if I could ask your Lordship as a fact-finding tribunal, which of course your Lordship in part is, to deal with a couple of matters that arise from the judgment your Lordship has given. I first believe that your Lordship is giving judgment said that, in addressing the Divisional Court on a previous application, I had unreservedly accepted the contents of Mr Gill’s affidavit. I think it would be more ---
MR JUSTICE WEBSTER: No, only as to his connection with any person involved in the death.
MR SEDLEY: It was the content of his letter in reply rather than that of the affidavit that I accepted. Your Lordship might perhaps wish to make some correct of the transcript when it comes in that regard.
The second thing on that same head of my submissions upon which I would ask your Lordship for a finding is this. Your Lordship has found that no reasonable person would think that Mr Gill had any connection with a person involved in the history of the matter. Your Lordship will recall that my submission was that, although I had of course not sought to say that that it itself might arise, I did submit that a reasonable person might fear that Mr Gill’s reaction to the suggestion might give rise to suspicion of bias. I wonder if I might ask your Lordship for an express finding upon that related but different matter.
MR JUSTICE WEBSTER: Mr Sedley, I do not intend to add a single word to the judgment that I have given, but, as I indicated in argument yesterday, it seems to me that Mr Gill’s reaction in refuting that submission with some particularity was a wholly understandable reaction and not one which should lead to any suspicion on anyone’s part.
MR SEDLEY: I am grateful because that today deals exactly with the point. The third matter which arises under the fourth head of the ground on which I sought to make good my submission is that your Lordship said in the course of judgment that it has not been suggested that the coroner’s description in his affidavit of the post-mortem reports as inconclusive was wrong. If that is the case, then it is entirely my fault in addressing your Lordship that I did not make it clear, as I should have done, that it is not accepted on Mr Smith’s behalf that that is a correct description. Nothing resulting in your Lordship’s judgment follows upon that, but I would not like your Lordship’s judgment to be thought of as in any way concluding the matter.
MR JUSTICE WEBSTER: No.
MR. SEDLEY: Equally again I am sure on this head that your Lordship would wish to make it clear that whatever had been said in this court by counsel or by your Lordship was intended in no way to influence the jury in its deliberations as to what the reports or the evidence did or did not prove when the time came.
MR. JUSTICE WEBSTER: Of course I think that must go without saying.
MR SEDLEY: The jury would have no warrant to consider what happened here at all. I am grateful. That leaves me only with the task of asking your Lordship for legal aid taxation of my costs.
MR JUSTICE WEBSTER: Yes, thank you very much, Mr Sedley.
Last modified: Monday, 09-Aug-2004 08:53:07 BST by: Malcolm Bishop