Tue, 18 Jan 2022
The High Court has granted permission to bring the judicial review in R (Gorani) v HM Assistant Coroner of Inner West London and others (CO/490/2021). Mrs Justice McGowan accepted the Claimant’s argument, resisted by counsel instructed by the Assistant Coroner, that the case is a proper one to be fully heard by the Divisional Court. Philip is instructed by Bindmans LLP solicitors.
This decision brings one step closer the family’s objective that lessons should be learned from what happened in their loved one’s case in order that it may not recur in future for other families. They feel strongly that this has not occurred in the investigation by the particular Assistant Coroner, and that the process was not a fair and adequate one that has answered, in proper manner, the relevant questions. Mr Rule advances submissions aiming to secure that this bereaved family realise their entitlement to see a lawfully sufficient, procedurally fair, and unbiased investigation into the death of their beloved.
The Court noted that the complaints include one of apparent bias, and a failure to include within the conclusions at the inquest any reference to the significant failure of a GP to have made a referral to mental health services when the patient, now deceased, had presented in crisis. The claim also challenges, inter alia, the shortcomings of the Record of Inquest.
The case involves an inquest required to answer the wider questions that properly arise in an Article 2 European Convention on Human Rights inquest, the inquiry seeking to answer the question as to in what circumstances the deceased came by his death, and so discharge the more extensive statutory duty required by section 5(2) of the Coroners and Justice Act 2009.
This particular Assistant Coroner had also recently found her conduct of an inquest – again involving medical treatment issues (but not Article 2 ECHR) – under scrutiny by the Court in the case of R (Nguyen) v Assistant Coroner of Inner West London  EWHC 3354 (Admin) (Bean LJ; Jay J).
Interestingly, in Nguyen the inquest again concerned medical practice, and the grounds similarly included a complaint of bias that “(3) The Assistant Coroner appeared to pre-determine the key issues” . In the present case the Assistant Coroner’s recusal was sought at the inquest itself –an exceptional step taken in light of the complaints that there was a failure to provide the family members with the independent and fair investigation to which they are entitled, and conduct of the inquest giving the appearance of bias or prejudgment. The particularisation of the claim identifies that the complaints include procedural or substantive unfairness and failure to observe the rules of natural justice. Examples of this are said to be substituting her own evidence for those of the witness (whilst conversely the witness’s evidence was ignored); and/or conduct of questioning, and general demeanour, giving the appearance of bias against the family’s case or prejudgment or bias in favour of the medical and NHS bodies.
In Nguyen the issue of apparent bias likewise concerned inappropriate questioning of the medical witnesses which made it appear that she was in favour of the doctors. It was submitted “that too many of her questions were not in fact questions at all but amounted to speeches, and that too many were ‘particularly robust’ and crossed the line from probing into advocacy” . Complaints included that “the Assistant Coroner’s view of the merits of the case was too often betrayed: that she was too “pro-doctor” (in the sense that the clinical judgments of the treating clinicians should not be called into question)” .
In Nguyen the Court found that: “It cannot be denied that some of the questions were too assertive, amounted to the setting out of propositions rather than questions, and/or involved several questions and not one, making it difficult for the witness to answer” . It was also noted that some remarks were unwise, or close to being intemperate . The Court in Nguyen ultimately found that “The present case is quite close to the line”, but was unable to conclude that the Assistant Coroner demonstrated apparent bias during her conduct of that particular inquest. Each case is fact specific of course, and it remains to be seen what the Court shall make of the Assistant Coroner’s conduct of this particular inquest.
Philip Rule is Head of the Public Law Group at No5, and is an experienced expert in representation and advice concerning inquests and in judicial review proceedings. He is recognised in the Legal 500 directory for his inquest and inquiry work, and a professional client is quoted attesting that he is ‘Absolutely fantastic in his work. His written work is flawless, his advice creative and with deep understanding of novel points of law. Instructing solicitors have been very impressed and would jump at the chance to instruct him again’.