It is not uncommon for verdicts to be challenged on the grounds of alleged bias. This issue arose in R (on the application of Shaw) v HM Coroner and Assistant Deputy Coroner for Leicester City and South Leicestershire (above). The assistant deputy coroner had indicated in the course of the final pre-inquest review (held some three weeks before the inquest was due to start) that a former Chief Executive of the Trust was a personal friend. The Chief Executive in question had left his post before the date of the procedure on Mr Ewan which had resulted in his death. Ms Shaw contended that this connection gave rise to presumed bias or at least apparent bias on the part of the assistant deputy coroner. Counsel for the Claimant at the inquest had indicated to the deputy assistant coroner that Ms Shaw had concerns as the inquest would touch upon the management of the Trust and that the friend of the Assistant Deputy Coroner had been responsible for putting the relevant policies or systems in place. In the exchange with counsel that followed, the assistant deputy coroner had declined to recuse himself, having interpreted the observations by counsel as an application that he should do so. In these proceedings, the issues that arose were twofold – namely:

  1. whether there was apparent bias; and
  2. whether the Claimant had effectively waived the challenge of presumed bias as the inquest had continued and she had been in possession of the relevant information.

In relation to the issue of apparent bias, Mr Justice Burnett set out the relevant authorities and the circumstances in which a judge is disqualified from continuing to act, referring both to the central test in Porter v. Magill [2002] 2AC 357 and to the decision in Locabail (UK) Ltd v Bayfield Properties Ltd [1999] EWCA Civ 3004, (2000) QB 451 in which the Court of Appeal set out a series of circumstances which would not give rise to questions of apparent bias. He concluded that the facts did not raise any question of presumed bias in the relevant sense: a fair-minded and independent observer would not conclude that the conduct of the inquest by the assistant deputy coroner might be biased on the basis that he might unconsciously seek to protect those who worked in a hospital for which his friend was once responsible. The Judge emphasised that the focus of the inquest was not upon the way in which the Trust or hospital were managed and that it was a case about medical failings not management failure. Any lingering doubt about the matter was resolved by the fact that the friend had left his post as chief executive before Mr Ewan’s procedure and death.

The issue of waiver arose as counsel for the Defendant contended (i) that no formal application to recuse had been made and (ii) Ms Shaw had been in possession of all relevant information and in allowing the inquest to proceed, had waived her right to any further challenge on this ground. Ms Shaw contended that relevant information had been withheld as the true extent of the relationship between the deputy assistant coroner and the Chief Executive of the Trust had only been revealed in a subsequent witness statement. She relied on the judgment in Peter Smith v Kvaerner Cementation Foundations Ltd [2006] EWCA Civ 242, and in particular the guidance from Lady Justice Hale (as she then was) as to the circumstances in which an individual will be considered to have sufficient information to decide whether to waive an application. The Judge accepted that a formal application to recuse had been made. However, he found against Ms Shaw on the issue of waiver. He noted that the decision in Peter Smith v Kvaerner Cementation Foundations Ltd  [2006] EWCA Civ 242 provides a useful framework and that no question of waiver can arise unless the party who is being invited to waive an objection based upon apparent bias (or is said by his conduct to have waived an objection) is in possession of the full facts relevant to the decision whether to waive. However, although the witness statement subsequently presented by the assistant deputy coroner provided more details of the friendship at issue and clarified the precise date on which the Chief Executive had left the employment of the Trust, Ms Shaw had been in possession of the information she required. It was incumbent upon her to challenge the decision before the proceedings had started but no steps to do so were taken in the three week period between the assistant deputy coroner’s ruling and the start of the inquest.

The issue of bias was also raised in the case of Sreedharan (above), where it was argued that the coroner revealed or gave the appearance of bias because he allowed the inquiry to focus too much upon the Appellant’s conduct and character, admitted irrelevant or marginally relevant evidence which undermined the Appellant, allowed excessively aggressive questioning of the Appellant and joined in that questioning. The Court of Appeal firmly rejected that argument, observing that the coroner was duty bound to ensure as thorough an investigation of the Appellant’s conduct as possible and to follow where the evidence led.

The decision in Shaw should serve as a salutary reminder to practitioners that a person may be regarded as having waived an objection to a decision made at the pre-inquest stage if no attempt is made to challenge that decision prior to the commencement of the inquest. It is clear from the judgment that the Court was influenced by the fact that there would have been sufficient time between the pre-inquest hearing and the commencement of the hearing to issue judicial review proceedings and if necessary seek interim relief. More problematic is the situation where the information relevant to the objection only becomes known at the commencement of the inquest itself.

In his concurring judgment, the Chief Coroner gave some practical guidance as to the circumstances in which coroners should disclose relevant interests or relationships, which we set out in full:

102 … Although in this case there was no bias, no actual, presumed or apparent (or perceived) bias, on the part of the assistant deputy coroner, he was right to raise the matter at the preinquest review. All coroners, doing their best to maintain independence and impartiality, should be alert to the risk of a real possibility of failing the objective test of the fair-minded and informed observer and to the need to disclose as early as possible a relevant interest or relationship to all interested persons for discussion.

103 Although much guidance has been given (such as in Locabail, Jones and Smith, supra) no two sets of facts are likely to be the same. Chapter 7 of the Guide to Judicial Conduct (revised version August 2011), headed ‘Personal relationships and Perceived Bias’, while recognising that there are ‘few hard and fast rules’, sets out for judicial office holders a number of ‘signposts for guidance’, especially in relation to ‘parties’ to the litigation. In inquests there are no parties, but, amongst a number of possible interests, a personal friendship or close acquaintance (or animosity) or business relationship with an interested person or a witness or an organisation coming under scrutiny, particularly where credibility is an issue, should put the coroner on notice. These are only examples. Each case must be considered on its individual circumstances.

104. It is inevitable that coroners, by the very nature of their work and the localness of coroner arrangements, will develop close contacts with some persons who enter the arena of the coroner investigation and inquest, for example senior members of hospitals and health trusts. If the close contact strays beyond the bounds of a working relationship into a personal one, the coroner should examine the circumstances carefully and decide whether to make disclosure, but not otherwise. So too should a part-time coroner who as a lawyer has clients (or his firm or chambers has clients) which might require open disclosure of a particular interest, for example acting for a company in the same group as an impugned company (as in Jones, supra).

105. Once on notice the case law advises the coroner to disclose as much as possible of his interest. This disclosure should be put in writing or otherwise recorded in a permanent record. The coroner should then usually advise any interested person affected of the options: (i) consent to the hearing going ahead and losing the right to object later (waiver); (ii) apply to the coroner to recuse himself (which the coroner will not take amiss), and if he recuses himself, what effect recusal would have on the timing of the inquest. Any person affected should have adequate time to reflect and, if necessary, take legal or other advice before making a free and informed decision. All of this is guidance, not a hard and fast checklist,”