In R (on the application of Southwark LBC) v London Fire and Emergency Planning Authority  EWHC 1701 (Admin) the claimant council ("Southwark") challenged the decision of the respondent ("Fire Authority") to retain responsibility for the consideration and prosecution of Southwark in relation to a fire at a council housing block it owned. The decision was challenged on the basis that the Fire Authority was the responsible body for the operation and organisation of the London Fire Brigade and was therefore conflicted in relation to the decision and possible prosecution. The High Court did not consider that any consequential prosecution would be infected by the appearance of bias.
The Court applied the test for bias in Porter v Magill, which states that "[t]he question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased".
Factors which indicate there is not an appearance of bias include:
- where the decision-maker is taking advice from an independent source;
- where the decision-maker consists of separate divisions, and the division taking the decision differs from the division to which the decision relates; and
- where the relevant facts have already been independently established, objectively assessed or are the subject of expert analysis, and the decision is primarily one of law.
Under the Regulatory Reform (Fire Safety) Order 2005 ("RRO"), Southwark has a duty to take general fire precautions to ensure that the communal parts of its housing stock are safe. The RRO provides that responsibility for enforcing the regulations falls on the local fire authority.
Pursuant to the RRO, Southwark engaged the London Fire Brigade – for which the Fire Authority is responsible – to train its housing officers and undertake Fire Risk Assessments of its housing stock. The Fire Brigade provided support and advice on relevant documents as well as a one-day training course to housing officers.
On 3 July 2009 there was a serious fire at Lakanal House, a council housing block owned by Southwark, in which six people died.
The Metropolitan Police ("MPS"), the Health and Safety Executive ("HSE") and the Fire Authority undertook comprehensive investigations into the fire (with the Fire Authority focusing on the RRO). Following the completion of the MPS investigation, a joint inquest was held in early 2013, in which the jury delivered narrative verdicts criticising both Southwark and the Fire Brigade.
The Fire Authority informed Southwark that it had continued its investigation independently of the police and had identified a number of potential offences committed by Southwark under the RRO. Southwark suggested that the Fire Authority was subject to a conflict of interest given that the London Fire Brigade was also subject to investigation, and requested that the Fire Authority transfer its enforcement responsibility to the HSE.
The Fire Authority notified Southwark of its decision to retain the conduct of the investigation on the grounds that a fair minded and informed observer would not conclude that there was a real possibility that Fire Authority officers would not conduct their investigation fairly and impartially. The letter set out a number of reasons for this conclusion.
In its submissions to the Court, Southwark argued that to allow the Fire Authority to retain responsibility for the decision to prosecute (and the prosecution itself) would give rise to the perception that the Fire Authority might be biased.
The Court referred to the test in Porter v Magill, which states that "[t]he question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased." This is an objective test – it assumes that the observer is not directly concerned with the investigation and has considered and understood the relevant features of the decision being taken. Importantly, the test is not be considered from an instinctive or emotional perspective.
The Court noted that any prosecution under the RRO would be grounded in the state of affairs that Southwark had permitted to develop at Lakanal House prior to the fire rather than any failures during the fire itself. From this point it drew the following conclusions:
- The conduct of the Fire Authority (acting through the Fire Brigade) on the day of the fire was immaterial.
- The question of whether any alleged breaches of the RRO resulted in a risk of death or serious injury was the same as any other prosecutorial decision arising from a fire in which a fire brigade will have played a part.
- The evidence of the condition of the building prior to the fire was well documented, had been objectively assessed and was a matter of expert analysis.
- The fact that the Fire Authority provided a standardised one day course was irrelevant – there was no suggestion that the Fire Authority provided any warranty in relation to the course and it was not suggested Southwark's responsibilities under the RRO are delegable.
- In the event that the fire was relevant, the causes of the deaths had been the subject of full investigations and analysed in a public inquest before jury in which both the Fire Brigade and Southwark were criticised. The narrative findings of the jury were unlikely to be in issue.
- The decision whether to prosecute and any prosecution would be taken by a solicitor employed in a different wing of the Fire Authority with no direct link to the fire and rescue role fulfilled by the Fire Brigade.
- The decision would be reached with the benefit of advice taken from independent counsel and based on the Code for prosecutors and so would be taken "fairly, impartially and with integrity".
Since 1) the decision to prosecute would be taken under the full scrutiny of those interested in the outcome and 2) in any prosecution the court would be assiduous to ensure that the criminal justice system operates in a fair way to all concerned, it would not be appropriate to conclude that the decision to prosecute and the subsequent prosecution by the Fire Authority might be infected by the appearance of bias to a fair minded and informed observer.
This case provides further guidance on the circumstances in which a court will consider that a public authority's decision might be infected by the appearance of bias. A court will be less willing to find the possibility of bias where the public authority consists of different divisions, and the division taking the decision differs from the division that the decision might impact. It also suggests that the existence of advice from an independent source, as well as the fact that any prosecution will be decided before a fair and impartial court, reduce the risk of bias.
This case serves as a reminder of the importance of seeking independent advice when taking decisions that might be subject to judicial review. It also serves as a reminder to exercise caution insofar as a decision to take other prejudicial action might impact a party in which the public authority has some interest. Where this is the case, appropriate barriers or processes might need to be put in place to ensure that there is sufficient separation between the different sections of the public authority.