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Cite as: [2005] EWHC 1793 (Admin)

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		Neutral Citation Number: [2005] EWHC 1793 (Admin)
		Case No: CO/6195/2004

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

4th August 2005

B e f o r e :

MR JUSTICE NEWMAN
____________________

Between:

	The Queen on the application of DR MICHAEL HEATH	Claimant
	- and -
	THE HOME OFFICE POLICY AND ADVISORY BOARD FOR FORENSIC PATHOLOGY	Defendant

____________________

(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)

____________________

James Turner QC and Robert A. Hall (instructed by Howrey LLP) for the Claimant
Charles Miskin QC and Paul Ozin (instructed by Treasury Solicitor) for the Defendant
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice NEWMAN :

Introduction

The Home Office Policy Advisory Board for Forensic Pathology (the Board) was established in 1991 following the publication of the Wasserman Report on forensic pathology (Report of the Working Party on Forensic Pathology, The Home Office, HMSO, April 1989). The report specifically recommended the establishment of a Policy Advisory Board for Forensic Pathology to monitor standards and advise the Home Secretary (paragraph 3.11 of the report). It recommended the retention of the Home Office Register as a means of accreditation of forensic pathologists (see paragraph 3.12 of the report) and recommended that the Board should take responsibility for quality assurance and investigations of complaints (paragraph 3.40 of the report).

After the publication of the report there was discussion and consultation at the highest level and with the parties most directly affected by the recommendations, namely forensic pathologists, police officers and the Association of Chief Police Officers. The Solicitor General, the Secretary of State for Health and the Chief Secretary of Her Majesty's Treasury supported the recommendations. On 19^th July 1990 the Home Secretary, the Rt. Hon. David Waddington QC MP (as he then was), in a written response to the House of Commons stated:

"I have now carefully considered the report of the working party which had been examining the provision of forensic pathology services to police forces and coroners in England and Wales together with the comments which I have received on it from 23 interested individuals and representative bodies. Without exception, those consulted have endorsed the report's principal findings and recommendations, particularly in relation to funding, accreditation, training and research, and have urged me to implement these urgently in order to reverse the recent decline of the service and ensure an adequate supply of forensic specialists in the future.

The main proposal of the report is that the supply of forensic pathology services should be regulated through the market – that is, the main users of these services, police forces, should contract with the suppliers, the pathologists, for the services they need at prices and on conditions to be agreed between them. The role of the Home Office would be to maintain the high quality of the service through new arrangements for accreditation, training and research. I have decided to accept the working party's proposals and to introduce the new arrangements straightaway, including the establishment of a policy advisory board to oversee the development of this vital part of our criminal justice system".

The Home Secretary implemented his statement to Parliament and the Board was established. The membership was, in line with the Working Party recommendations, designed to represent both the profession and the stakeholders. Dr Trevor Rothwell, then the Director of the Home Office Forensic Science Laboratory at Huntingdon (and a member of the Senior Civil Service), accepted the role of Secretary to the Board. Dr Rothwell holds a degree in chemistry and a doctorate in biochemistry. Since 1991 he has been employed by the Home Office as Secretary to the Board to the present day.

The purposes in having the Board appear from the terms of the Home Secretary's parliamentary announcement. It assists the Home Secretary in the execution of his responsibilities in connection with the forensic science service. It can be seen that the arrangements for accreditation, training and research were adopted, with parliamentary and public approval, to ensure the quality of service to the public. These matters clearly fall within the ambit of his responsibility as Home Secretary. I am entirely satisfied that the establishment of the Board and the arrangements in connection with accreditation and the attendant requirements for control in connection with the accreditation scheme constituted matters which he had the power to establish and maintain within the Home Office. It would seem obvious that when Parliament was informed of his intentions, which did not include laying legislation before Parliament, it was accepted he had the power to do what he stated he would do. It is, therefore, surprising that the claimant has suggested otherwise.

The purpose of the Board is to maintain the quality and standards of the profession. In particular, to ensure coroners and police have access to a list of persons suitable to undertake the post-mortem examination of persons who have died in an apparently violent or unnatural way.

The regulation provided by the Board is of particular importance because the users of forensic pathology services are, in the main, not in a position to assess for themselves the technical standard of the work carried out by registered forensic practitioners. Accordingly, the Board has a vital role to underpin the proper functioning of the criminal justice system and to prevent miscarriages of justice.

The Board, in part, achieves the purpose of maintaining quality by instituting and maintaining a list known as the Home Office Register, of appropriately qualified and experienced forensic pathologists.

The Board operates under "Terms of Reference" referred to as its Constitution. Given the recommendations of the Wasserman Report, the Constitution contains provisions for the admission and removal of pathologists to the Home Office Register and for dealing with complaints against those on the Register.

The Constitution was drafted on behalf of the Board by Dr Trevor Rothwell. The draft was circulated for comment to (a) all members of the Board, (b) Home Office Legal Adviser's Branch, (c) the General Medical Council, (d) the British Medical Association, (e) the Coroner's Society and (f) the Department of Health. It is likely that the Crown Prosecution Service was also asked to comment. The draft was considered by the Quality Assurance and Scientific Standards Committee of the Board (QASSC) and, subject to minor modification, was agreed.

The Constitution was accepted by the Home Secretary (through officials within the Science and Technology Group of the Police Department). Because the Board is a body created to advise the Home Secretary and, where appropriate, to act on his behalf, the acceptance of the Constitution by, or on behalf of, the Home Secretary was considered to be the only requirement for its establishment.

The Constitution was subject to a review in 1997. These changes were undertaken by Dr Rothwell and amounted to a "tidying up" exercise: no significant alterations were made to the substance of the Constitution.

The Proceedings

The claimant, Dr Michael Heath, is a well-known and senior forensic pathologist, who is accredited in that capacity by the Home Office. By these proceedings he seeks judicial review of a decision to refer to a disciplinary tribunal complaints that have been made against him in respect of his conduct as a forensic pathologist and expert witness in relation to two murder trials, namely R v Fraser and R v Puaca.

He seeks judicial review of:

(1) that part of the Constitution of the Board which purports to make provision for disciplinary procedures; and/or

(2) a decision made on the 8^th September 2004 by the QASSC, pursuant to the disciplinary procedures and referring certain matters concerning him to a disciplinary tribunal.

On the basis of numerous grounds, which I shall endeavour to summarise, the claimant seeks an order:

(i) quashing the relevant scheme or a declaration that the scheme is unlawful, invalid, defective or of no effect; and

(ii) quashing the decision made on 8^th September 2004 to refer certain complaints against him to the disciplinary tribunal and the quashing of any incidental decisions made in connection with it.

The grounds can be summarised as follows:

(1) the complaints and disciplinary scheme set out in the Constitution is unlawful, invalid or otherwise defective because there is no lawful authority for it to be promulgated or revised and, in any event, is lacking in essential detail and/or clarity such as to make it unworkable and/or unfair in operation.

(2) the decision to refer the complaints to a disciplinary tribunal made on 8^th September 2004 was made without jurisdiction because a requirement to give notice to the claimant had not been complied with.

(3) there was no power to grant an extension to the 28 day period of notice to which the claimant was entitled, alternatively, if there was, Dr Rothwell purported to exercise the power and he had no lawful authority to do so.

(4) the decisions made on 8^th September 2004 by the QASSC were fatally flawed by failure to consider or take into account letters dated 12^th July 2004 and 8^th September 2004 from the claimant's solicitors. This proposed ground of challenge was not proceeded with at the hearing.

(5) the relevant decision made on 8^th September 2004 was fatally flawed by reason of a perceived or apparent bias on the part of Dr Purdue, one of the Committee members, and/or by a failure to address the concept of perceived or apparent bias.

(6) the decision of 8^th September 2004 by the QASSC was fatally flawed by the failure to consider a reasoned request to postpone consideration of the matter to give more time to the claimant to make representations and to consider other matters. And a failure to consider the representations which were made to the Committee.

The Constitution is in three parts:

(1) An introduction to the Constitution;

(2) The accreditation and review procedures; and

(3) The complaints and disciplinary procedures.

Although the challenge appears to be to the Constitution, the application relates to the complaints and disciplinary procedures.

It will be convenient to set out the various paragraphs under paragraph 1:

"1.1 Any complaints about the work of a forensic pathologist will be investigated by the Quality Assurance and Scientific Standards Committee (QASSC) on behalf of the Home Office Policy Advisory Board for Forensic Pathology (the 'Board').

1.2 The QASSC shall within 28 days of receiving a complaint give written particulars to the pathologist concerned. This will normally include copies of any documents submitted by the complainant, but it will be the responsibility of the QASSC to decide whether the complainant shall be identified to the pathologist.

1.3 The pathologist shall then be invited to give written comments on the complaint within 28 days or such other period as may be granted by the Board.

1.4 The QASSC may then consider all representations and it shall be empowered:

a) to rule that no further action be taken in respect of such complaint

b) to issue guidance to the relevant pathologist

c) to direct the Accreditation and Training Committee (ATC) to register a caution against the relevant pathologist

d) to refer the matter to the disciplinary tribunal of the Board.

1.5 A pathologist shall have the right of appeal to the disciplinary tribunal against the registration of a caution in accordance with rule 1.4(c).

1.6 Any appeal under rule 1.5 shall be in writing and made within fourteen days of notification of the caution by the ATC.

1.7 …"

Paragraph 2 appears under the heading 'Disciplinary tribunals'. Power is given to the Board to constitute a disciplinary tribunal consisting of six members of the Board, one of whom shall be legally qualified and who chairs the tribunal. Any three members of the tribunal constitute a quorum. No Board member who, at the material time, serves on either the ATC or the QASSC shall be a member of a tribunal.

The procedures provide that any reference to the tribunal shall be in writing and copies thereof must be made available to the pathologist within 21 days of receipt (2.4). That the appellant pathologist may make further written submissions to the tribunal (2.5). The tribunal may then request the complainant and pathologist to supply further information and documentation as they think fit (2.6). And copies of any such further information and documentation shall be furnished to all parties (2.7).

The tribunal, having considered the written submissions, may, if it is of the view that no further action need be taken, dismiss the complaint without further hearing. But if the tribunal, having considered the written submissions, is of the view that the complaint may be dealt with by the issuing of guidance or a caution then it may inform the pathologist in writing. If the pathologist accepts such guidance or caution then the tribunal may proceed to deal with the complaint without a formal hearing. But, where the tribunal, having considered the written submissions, forms the view that a formal hearing is necessary then it shall fix a date for such a hearing and not less than 28 days' notice shall be given to the complainant and the pathologist.

The complaints in connection with the claimant have been referred to the tribunal by the QASSC. This application for judicial review has prevented any further progress being made. The complaints themselves date back to July 2002 and February 2003 and it is a matter of great concern to this court that these internal disciplinary proceedings have become subject to such inordinate delay. The referral to the tribunal was made on 8^th November 2004. I must now shed light on the causes for delay.

The history in connection with the claimant's case

The disciplinary process against the claimant was triggered by a letter of criticism dated 29^th July 2002 sent to the Secretary of the Board by Professors Crane, Whitwell and Milroy concerning the case of R v Fraser in which they had all been experts retained by the defence and in which the claimant had been an expert witness for the prosecution.

A second letter of criticism in respect of the claimant's work dated 3^rd February 2003 was received by the Board. The authors of that letter were Professor Crane, Dr Cary and Dr White. The criticisms related to another criminal case, R v Puaca, in which Professor Crane, Dr Cary and Dr White, had been retained by the defence, and in which the claimant had been an expert witness for the Crown. The complaints procedure was implemented and it led to the matters being referred to a disciplinary tribunal, despite representations made by the claimant about defects in the referral process which had occurred, including an allegation of bias. The procedures advanced to a Directions Hearing held on 30^th April 2004. Shortly after, by letter dated 21^st May 2004, the Treasury Solicitor acknowledged that there had been defects in the referral process which could not be cured. Accordingly the two referrals were abandoned and the process was re-commenced. The claimant immediately objected to the fresh process. It is the decision to adopt and issue fresh referrals and the consequent decision of 8^th September 2004 that the complaints should be referred to a disciplinary tribunal which are the object of challenge.

I propose to deal with the grounds of challenge in turn and, as necessary, I will pick up the detail of the facts and arguments as they are considered.

Ground 1

The essence of the submission of Mr Turner QC, for the applicant, is that the Home Secretary, not having any statutory power to set up the Board and the scheme, including the disciplinary and complaints procedure, has acted ultra vires. He submits that it is not enough for the Board to assert that the Home Secretary has acted within the Royal Prerogative. The Board must establish that its action falls within the Royal Prerogative. Counsel (correctly) did not invite the court to travel through the authorities, for example, which point to the term 'prerogative' being confined to those powers which are unique to the Crown. See, for example, Lloyd LJ in R v Panel on Takeovers and Mergers ex parte Datafin plc [1987] QB 815. 848. It has not been necessary to consider, for example, the House of Lords judgment in the Council of Civil Service Unions v The Minister for the Civil Service [1985] AC 374 where the Crown's powers of control over the civil service were held to be part of the Royal Prerogative. The consideration to be derived from them is that the Royal Prerogative only extends to powers which are unique to the Crown and that conclusion is unlikely to be reached if the acts in question can be regarded as an administrative practice involving no legal power at all. For example in R v Criminal Injuries Compensation Board ex parte P [1995] 1 WLR 845, the Court of Appeal treated the question as open and Gibson LJ said the scheme was "perhaps more correctly" described as set up merely by executive action. Mr Turner's argument incorrectly assumed that, if the acts were not within the Royal Prerogative, they had to be regarded as null, void and of no effect. With respect, the approach is misconceived. If they are not within the prerogative, they are to be regarded as executive action.

In the only case concerning the Board previously to have come before the courts, Sir Edwin Jowitt stated in R (Lannas) v Secretary of State for the Home Department [2003] EWHC 3142 (Admin):

"The scheme is one promulgated under the Royal Prerogative. It is the Minister's responsibility and duty to administer the scheme and to see that the proper standards are maintained and that they are elevated. It is for the Minister, through the Board, to set the standards required … for he is responsible to parliament for the way in which the scheme is run".

In that case there had been no challenge to the lawfulness of the scheme or to the vires of the Home Secretary, but it is unnecessary for me to determine in this case whether or not the Home Secretary was acting in establishing the Board under the Royal Prerogative or whether it was "executive action" taken on his part. In either case, he had the power to act and, in either case, the matter is subject to judicial review.

Under this ground, Mr Turner also submitted that the scheme had so many gaps and defects that it was unworkable. Where a scheme such as this is concerned with complaints and disciplinary procedures to which it is clear the parties have agreed by a form of contract, the governing principle of law in connection with such procedures is that they should be fair. It is not a requirement of law that the procedures be elaborate enough to cover every matter which might arise in connection with the process. Where there are gaps they can be filled by the relevant body having the responsibility to decide the issues, always having in mind that the process must be one which is capable of achieving justice and fairness between the parties in respect of the matters at issue. It is unnecessary to recite the criticisms which he advanced, but they were all directed to questions of procedure. Neither individually or cumulatively are they sufficient to make the scheme unworkable.

Ground 2

The decision to refer the complaints to a disciplinary tribunal was made without jurisdiction because the scheme required 28 days' notice to have been given to the claimant and no such notice had been given.

The claimant's argument in this regard starts with the two letters dated 29^th July 2002 and 3^rd February 2003 which, it is submitted, have to be regarded as "complaints" within the meaning of paragraph 1.1. From that it followed, it is said, notice had to be given of the complaints to the claimant within 28 days of receipt by the QASSC. It will be obvious that, even if due notice had been given in the first instance, the abandonment of the referrals and the fresh consideration which the Board adopted, inevitably meant no fresh notice could be given within the strict terms of paragraph 1.2.

By a letter dated 11^th June 2004 from the Board to the claimant, Dr Rothwell stated:

"I attach copies of two letters received by the Policy Advisory Board for Forensic Pathology. The first is from Professors Crane, Milroy and Whitwell, and refers to your work in relation to the case of R v Fraser. The second is a letter from Professor Crane and Drs Cary and White, and refers to your work in relation to the case of R v Puaca.

The Board considers these to be complaints against the actions of a Home Office registered forensic pathologist and accordingly they will be dealt with through the Complaints and Disciplinary procedures, a copy of which is attached. Under para 1.3 of these Procedures, you have 28 days in which to respond, in writing, to this complaint. Your response, together with the letters from Professor Crane and the other pathologists, will then be considered by the Board's Scientific Standards Committee which is empowered to take action as outlined in para 1.4.

The attached Heads of Charge provide details of the complaints, and makes reference to relevant reports and statements, copies of which will be provided to you under separate cover.

You are invited to respond to these complaints, and your response should be provided within 28 days of the receipt of this letter.

I should also tell you that the Crown Prosecution Service will be informed that a complaint against your work has been filed with the Board."

The claimant's response, by his solicitors, characteristically joined issue on a number of points, which included the contention that this, being an attempt to proceed under the 1997 Rules, based upon what was alleged to be "the purported letter of complaint dated 29^th July 2002 and the purported letter of complaint dated 3^rd February 2003, was in breach of the requirement of rule 1.2 that written particulars of the complaint be given within 28 days of the Board receiving the complaints". The essence of the submission made by Mr Turner is that, since the passage of time and the abandonment of the earlier referral, it was now impossible for these complaints to be dealt with under the rules since it was now impossible to give notice within the 28 days provided for in rule 1.2. Further, objection was taken because the matter could advance to consideration by the QASSC in the absence of representations from the claimant.

For convenience, I should refer to other complaints in the letter for they are repeated subsequently as continuing grounds to prevent the implementation of the procedures. Complaint was also made that in previous correspondence, in particular a letter dated 9^th June 2004, it had been stated:

"The Board remains entirely convinced that the case against Dr Heath cannot simply be dropped".

Inquiry was raised as to who was being referred to by the word "the Board" and it was suggested that the matter had been pre-determined. Next, complaint was made about the fact that letters had been written to HM Coroners and Chief Officers of Police in England and Wales in the terms of the letter dated 9^th June 2004 and it should have been made plain that the claimant denied the allegations. It was suggested that the claimant could not get a fair and objective hearing from the Board.

The Treasury Solicitor, in a letter dated 9^th August 2004, replied and, in response to the complaint about the failure to give 28 days' notice, stated as follows:

"We take the view that, bearing in mind the fact that your client was already aware of the nature of the complaints, the delay resulting from the abandonment is not substantive and cannot have significantly prejudiced your client."

It rejected the suggestion that the QASSC had already considered the complaints emphasising that the two complaints had been issued afresh and thus opportunity was being given to the claimant to respond to them both so that they could be considered. The letter concluded:

"Any concerns that your client has in relation to the referral process may, of course, be raised by him in his response to the complaints, and will be considered by the SSC. Should your client elect not to make representations, then that is a matter for him. We confirm however that the complaints against your client will be considered by the SSC at its meeting on 8 September 2004. We look forward to receiving your client's response by 20 August 2004".

Solicitors for the claimant replied to this letter not earlier than the day before the deadline of 20^th August 2004, by a letter dated 19^th August 2004. The letter stated (among other things):

"We note that despite the fact that it took you approximately four weeks to respond to our letter dated 12 July 2004, you are now requesting our substantive response within 11 days. This is unreasonable. Without prejudice to our client's position, until we receive clarification from you as to precisely what documentation you propose to place before the Scientific Standards Committee ("SSC") for the purposes of their meeting on 8 September 2004, we are not in a position to respond further on Dr Heath's behalf".

By letter dated 20^th August 2004 the Treasury Solicitor replied:

"The documents that will be placed before the SSC for the purposes of their meeting on 8 September 2004 are all those referred to in the Heads of Charge. We understand that you already have copies of these documents, however we will furnish you with further copies if you wish".

The letter went on to point out:

"We confirm that the members of the SSC will not be informed by us or by the Board of the procedural history of the complaints or previous action taken in relation to your client".

As to who had taken the earlier decisions, it stated it was Dr Rothwell, acting in his capacity as Secretary to the Board, who considered that the letters were complaints pursuant to the Board's Complaints and Disciplinary Procedures.

Despite the passing of the deadline and a failure to respond to a reminder, representations were sent by a letter dated 6^th September 2004 for consideration by the committee at its meeting on 8^th September 2004. The letter repeated the failure to comply with the provision requiring the complaints to be notified within 28 days of their receipt which, it was submitted, led to the conclusion that, since there was no provision in the rules enabling an extension of time, "it would seem that the proposed consideration of the complaints on 8 September 2004 would be ultra vires".

The letter also went on to state that there were other reasons why the proposed consideration cannot properly and fairly go ahead. The first involved a repetition of the content of the letter of 9^th August which was to the effect that:

"Upon consideration, our client, took the view that the complaints were of such a serious nature that public interest required that the two complaints be issued afresh, and put before a differently constituted SSC".

The letter pointed out that the Treasury Solicitor had stated that the client was the Board. Inquiry was therefore made as to who had authorised that decision and then the letter went on to say:

"As to the members of the SSC who it is proposed should consider the matter on 8 September 2004 (and who are identified in your letter of 9 August 2004), we have taken our client's instructions (as we indicated in our letter of 19 August 2004 that we would) and we are concerned to learn from our client that Dr Basil Purdue has been a close personal friend of Dr Heath for twenty years, each of them having stayed at the home of each other. Further, Dr Purdue has previously discussed aspects of the R v Puaca case with Dr Heath and works closely with Dr Anscombe and Dr White. The problem of finding truly independent members of a body having a disciplinary function within the small community of forensic pathologists is, as has been pointed out previously, a very serious concern."

The significance of the reference to Dr Anscombe and Dr White is that they were involved in the Puaca case.

The letter then went on to foreshadow what was to become an application for an adjournment and has now been made a ground of complaint in this court that it was not until the letter of 20^th August 2004 that it was known what documentation it was proposed should be put before the committee on 8^th September 2004 and it was asserted that:

"You will no doubt appreciate that we need to have this information in order to structure properly and appropriately any comments that may be submitted on behalf of Dr Heath".

Next it was foreshadowed that a complaint would be made on the grounds of a lack of impartiality and fairness in the preparation of the Heads of Charge prior to the receipt of comments by the pathologist.

The Treasury Solicitor responded immediately by letter dated 7 September 2004 pointing out:

(1) It was simplistic to suggest that non-compliance of the procedural rules necessarily results in subsequent regulatory actions being ultra vires. It pointed out that, in this instance, there was no grounds for concluding that the requirement was mandatory or, one might add, jurisdictional, as opposed to procedural and directory. It could be a matter for the tribunal to make due allowance for any lack of opportunity which had arisen from any failure to comply with the rules.

(2) The letter then responded to the continuing complaint about the question of authority on the part of Dr Rothwell in these terms:

"My client has endeavoured to ensure that no members of the SSC have associations with any of the complainants, and does not consider it appropriate to give the other assurances that you request. A determination by the SSC under rule 1.4 of the Constitution (Complaints) is not a hearing. It is an internal determination by a Committee of the Board, albeit that the rules provide that the pathologist shall be provided with particulars of the complaint and shall be invited to submit written representations. The Constitution provides for a fair hearing before an independent tribunal in the event that a Disciplinary Tribunal is convened. That stage has not yet been reached and it is not appropriate to apply such guarantees to a preliminary procedural stage, more analogous to a decision to prosecute. It is not the intention of my client to acquaint the members of the SSC with the previous history of the complaints unless the issue becomes relevant to the SSC's determination. However, as a matter of common sense, the history may become relevant…. I am grateful for the information you have provided concerning Dr Basil Purdue. This does not, in my client's view, affect his ability to sit on the SSC."

The claimant's solicitors responded in a letter dated 8^th September 2004 to the Treasury Solicitor and also, by a letter dated 8^th September 2004, addressed directly to the QASSC, marked for the urgent attention of Rachel Webb. The letter to the Treasury Solicitor joined issue with the points which had already been made and responded to by the Treasury Solicitor. No benefit will be gained from reciting the contents of that letter. The letter dated 8^th September 2004 addressed to the Committee ran to no less than five and a bit pages concluding:

"There is a very great deal more that could and should be said by way of comment on behalf of Dr Heath and we earnestly request the SSC to defer its consideration of the matter so that such comment can be provided and so that other relevant material, including important transcripts, can also be considered, thus giving the SSC a fuller and fairer view of the relevant matters".

The reference to the transcripts is a reference to the transcripts of the criminal hearing in the two cases forming the source of complaint.

The letter itself went over the ground which had already been travelled in correspondence with the Treasury Solicitor, as well as making other representations generally about Dr Heath's position and reference to the criminal trials. The specific question of Dr Purdue and the apparent bias which could arise from his participation was also raised. The letter stated:

"We understand that Dr Purdue and Dr Heath have a long standing personal friendship and, further, that aspects of one of the cases that gives rise to the complaints against Dr Heath (R v Puaca) has been discussed between Dr Purdue and Dr Heath. We have therefore suggested to the Treasury Solicitor that a differently constituted SSC should consider the matter, if it is to be considered. Of course we do not suggest that Dr Purdue would consciously deal with the matter in an improper way, but the concept of "apparent bias" is well known. Further, subconscious influences are difficult to detect or appreciate and there is the risk that friendship can result in what we would describe as "over-compensation" by a decision maker who is dealing with a complaint made against a friend and who is trying to act fairly. For Dr Purdue to be involved in this matter is unfair to him and to Dr Heath."

I have now said enough and set out the course of events in correspondence to enable consideration to be given to Grounds 2 to 6 as set out above. Ground 4 of the complaint in relation to the failure of the QASSC to take into account the letters of 12^th July and 8^th September has proved factually incorrect and has been abandoned. The minutes of the committee meeting have been made available and it is plain that they were both received and that they were considered.

General observation

This application for permission to apply for judicial review has reached the court before any substantive disciplinary hearing has commenced. In exceptional cases, a need may arise for action to be taken to avoid an obvious miscarriage of justice. In the normal course, its supervisory jurisdiction is concerned with the legality of a decision made by a disciplinary tribunal not to monitor the procedural processes governed by a wide discretion which is exercised by disciplinary tribunals to rule their own affairs. In the usual course, the roles and duties of a screening committee are not appropriately made the subject of applications for judicial review. The stage of the process under the Constitution of this Board, which is determinative of rights or obligations or which affects a substantive interest, is the decision of the tribunal. That is not to say that prejudice will not arise from the giving of notice that a referral to a tribunal has been made, but it is inescapable and lasts only so long as the tribunal decision is delayed.

The way to avoid such prejudice being allowed to continue is for the hearing before the tribunal to take place promptly. The timetable in the Constitution reflects a recognition of the need for promptitude and the pathologist has a duty under the procedures to co-operate. The events I have considered give the strong impression that, from the outset, the claimant set out to block the process as best he could. It is true that the issue of possible bias led to the first referrals being abandoned, but he raised many other points having little merit as well. Since notice was given of a fresh referral, he has perpetuated delay by raising as many points as he possibly could which might serve to avoid or delay a decision to refer to a tribunal. His demand, for example, for the supply of the transcripts of the criminal proceedings before matters proceeded, was misguided and excessive. The transcripts may or may not be necessary at the substantive hearing, if there is to be one. His failure to respond by his solicitors until 6^th September and then again on 8^th September was, in the light of the previous history, inexplicable. He had had months, indeed nearly two years, to respond to the complaints. The documentation which had been served upon him enabled him to make all necessary representations for the purposes of the consideration by the QASSC which had a limited remit of decision. His solicitors have written voluminously over the whole period making countless representations. However firmly it might have been believed he was entitled to more time, he should have responded to the best of his ability on the basis of the information which he obviously had in his possession.

Alleged failure to comply with paragraph 1.2 of the Constitution

The purpose of paragraph 1.2 is to afford the pathologist early notice of the complaint and so minimise the potential prejudice to him in the preparation of his defence. It is absurd to suggest that failure to comply with it will make it impossible for a hearing to take place or for a complaint to be considered any further. That is to elevate a purely procedural provision to enable representations to be made as a condition precedent to jurisdiction arising. It is obvious that the inability of the Board to comply with the strict terms of paragraph 1.2 in the light of the fresh referral simply required the Board to provide the pathologist, the claimant, with 28 days' notice to respond, which it did. It is not a matter of time being extended or for a specific provision to be available for the extension of time. Having abandoned the previous referrals, it was plainly within the powers of the Board to institute a fresh process.

The position of Dr Rothwell (Ground 3 and generally)

I am entirely satisfied that it is within the powers of the Board to delegate many of its administrative functions to officers such as the Secretary. The Board itself meets relatively infrequently. The desirability of a speedy and effective process in order to minimise prejudice to pathologists justifies the delegation in respect of the processes which can lead up to consideration by the QASSC whether or not to refer.

Counsel helpfully referred me to the cases of Carltona Ltd v Works Commissioner [1943] 2 All ER 560 and R v Secretary of State for the Home Department ex parte Oladehinde [1991] 1 AC 254 in connection with the delegation of statutory powers. Had I harboured any doubt about the delegation to the Secretary of the Board of the administrative functions and procedural decisions to be taken by the Board or the QASSC, I would have applied the "Carltona" principle to the actions put in issue by the claimant. But it should be noted that in the complaints procedure, the screening process, whilst beneficial, is not a substantive determination. The claimant has had the protection of the consideration by the QASSC and, as to that, it has to be said that, where the issues are as significant as those raised by these complaints, the outcome of referral is highly likely.

As to the position before the tribunal, I should like to endorse what the chairman of the tribunal convened in the claimant's case for the Directions Hearing of 30^th April 2004, Mr Andrew Pugh QC, stated:

"… the Tribunal does have intrinsic powers, simply by virtue of being a tribunal. It has the obligation to observe the rules of natural justice and to conduct its proceedings fairly and to decide procedural matters which are not expressly dealt with in the rules".

And that:

"It may well be that a tribunal acting fairly can fill in the procedural gaps….".

In my judgment, the points raised in connection with Dr Rothwell are unmeritorious and seek to import into the commonsense of the arrangements under a scheme such as this an unduly legalistic and technical approach.

Bias and Dr Purdue

The minutes of the hearing make it clear that the question of whether Dr Purdue should recuse himself on the ground of bias by reason of his relationship with the claimant was considered by the committee, both before the committee's receipt of and consideration of the solicitors' letter dated 8^th September 2004 and also afterwards. There is no basis for concluding that the committee, having been informed of the correct principles, did not apply them correctly. Further, Dr Purdue was one of four members of the committee at the meeting attended by Dr Jeff Adams, Mr Andrew Dodsworth and a legal adviser. Dr Purdue would have been made aware of the contention on behalf of the claimant. He may well have felt somewhat differently. He would have been entitled to do so since the contention was not so much one of fact, but comment about the claimant's perception or opinion of the relationship. But more than that, having regard to all the circumstances and, in particular, the matters with which the committee were then concerned, no fair minded observer would be led to conclude that there was a real possibility that the committee on this occasion was biased.

The argument is advanced upon the basis that a sufficient degree of friendship existed which would give rise to a favourable pre-disposition towards the claimant on the part of Dr Purdue. As it appears to me, there is simply insufficient material to give rise to an inference that he regarded his relationship with the claimant as placing him in that situation. Had he done so, he would have recused himself. The way in which the matter has been phrased by the claimant has a self-serving ring about it which has led the court to proceed with some caution in this regard. For completeness, I should add that since the threshold of consideration for referral is low, the character of the decision-making is less apt to be caught by an allegation of bias of this sort.

The opportunity to make representations and request for adjournment

There are no grounds for concluding that the committee did not consider the request for an adjournment. There were ample grounds for the committee concluding that sufficient time had been given to the claimant to make representations. Indeed there were representations which were before the committee. It was not a matter, as I foreshadowed above, of the committee determining the outcome on matters of conflict; it was a matter for the committee to determine whether concerns were raised as to the complaints which had been made.

Conclusion

In my judgment, it is in the interests of the claimant and in the public interest that the issues raised by these complaints should be dealt with by a tribunal without any further delay. So far as the procedure to be adopted at the hearing, that is a matter for the tribunal in so far as it is required to make specific directions. Any issues in connection with the applicability of rules other than the 1997 Rules can be raised with the tribunal. The overriding consideration is that, at that hearing, the claimant should be accorded a fair, impartial and just hearing.

This application for judicial review is dismissed.

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MR JUSTICE NEWMAN: Mr Turner, we communicated through my clerk yesterday.

MR TURNER: Yes, my Lord.

MR JUSTICE NEWMAN: Do you want to say anything more about that?

MR TURNER: I understand your Lordship would welcome me just to explain briefly the two points I raised under substantive points. Your Lordship can see why I raised them, because I experienced trouble in the Court of Appeal before when I said something was not dealt with.

MR JUSTICE NEWMAN: That reason did not cause me any mystery at all. Really what you were getting at was not clear to me.

MR TURNER: Can I explain those two points; the first of them is the question about the extant proceedings in the Court of Appeal on the Puaca case. Your Lordship will recall that Dr Heath sought an adjournment of the hearing before the QASSC on four bases.

MR JUSTICE NEWMAN: Try and keep this short. Is it in the letter of 8th September?

MR TURNER: My Lord, it is but I can take it very shortly. There were four bases on which an adjournment was sought: one was that more time was required for a response, and your Lordship dealt with that at paragraph 50 if no where else in the judgment. Secondly, the need for transcripts of the criminal proceedings, and your Lordship has dealt with that at paragraph 43 of the draft judgment. Thirdly, the need to recuse Dr Purdue, your Lordship has dealt with that at paragraphs 48 and 49 of the judgment. The fourth of the bases on which an adjournment was sought is ground 6(iii) in the actual grounds and was the fact that the Puaca case was extant before the Court of Appeal, where the grounds of appeal are precisely the same as the matters raised before the Board by way of criticism of Dr Heath.

MR JUSTICE NEWMAN: Pause there and now remind me of the terms of the letter in which it was put to the committee.

MR TURNER: I am sorry, my Lord, I have not actually brought the letter here.

MR JUSTICE NEWMAN: Is it the 8th September letter?

MR TURNER: The letter that went before the committee that morning, the one directly to the committee itself.

MR JUSTICE NEWMAN: Then I have that to hand at the moment, just give me a moment (pause).

MR TURNER: Thank you.

MR JUSTICE NEWMAN: I think if you go to page 46, do you have that?

MR TURNER: Yes, thank you.

MR JUSTICE NEWMAN: I think in the middle of the page, you just read that to yourself.

MR TURNER: Yes.

MR JUSTICE NEWMAN: I will read the passage to myself and see whether we are --

MR TURNER: That is the passage I have in mind and effectively ground 6(iii).

MR JUSTICE NEWMAN: It is the last sentence of that paragraph in the middle:

"We understand that an appeal against conviction is currently pending before the Court of Appeal and we suggest that, in the first instance at least, it is the proper tribunal in which any complaint against Dr Heath's conduct in this case should be pursued".

MR TURNER: Yes, so implicitly what is being said is that you should adjourn pending the outcome of that determination from the Court of Appeal.

MR JUSTICE NEWMAN: I am afraid the reason why I have been puzzled by all this is that you say the request in your point to me, the request for an adjournment of the matter before the committee, had been based also on the fact that the very issues in the complaint concerning the Puaca case were extant before the Court of Appeal. But here there is no examination of the issues being raised in the Court of Appeal so that it was any assertion that the very same facts were ...

MR TURNER: That is not spelt out in terms in that letter, and I am afraid I cannot recall whether it was in one of the earlier letters. It is a matter of fact that it was and it is clearly a ground of our application before your Lordship.

MR JUSTICE NEWMAN: Thank you very much.

MR TURNER: The second point, the irrationality point.

MR JUSTICE NEWMAN: That is a follow-on, is it not? You say that I did not deal with this particular point.

MR TURNER: Yes, your Lordship at paragraph 15(6) of your judgment clearly highlights and then goes on to deal with the question of the failure to consider but our attack went further than a failure to consider. So for example in respect of the request based on the need for more time for Dr Heath to compile his reasons, your Lordship may recall that Dr Adams, in his witness statement, set out various reasons why the committee was not prepared to give more time. We have addressed each of those reasons in our skeleton argument in paragraph 74 saying why they were irrational, misconceived and failed to take account of points or were wrong in taking account of points. That is what I meant by that second point.

MR JUSTICE NEWMAN: Thank you very much.

For the reasons in a judgment which is now handed down, this application for judicial review is dismissed. I merely wish to add, so that the matter is clarified, a point which Mr Turner has raised with the court which he has sought to clarify this morning, which is to the effect that among the various grounds for requesting an adjournment of the committee's deliberations on 8th September, solicitors for the claimant had included, in the letter dated 8th September, reference to proceedings then in the Court of Appeal Criminal Division in connection with the case of Puaca but which had not yet been determined by that court. The representation was to this effect:

"We understand that an appeal against conviction is currently pending before the Court of Appeal and we suggest that, in the first instance at least, that is the proper tribunal in which any complaint against Dr Heath's conduct in the case should be pursued."

In the way in which it is put by Mr Turner, it is said that those proceedings in the Court of Appeal Criminal Division were said to be relevant to the QASCC's consideration, because the very issues in the complaint were raised in the proceedings. His purpose in reminding the court of this aspect of the request for an adjournment was to question whether the court's judgment had addressed the issue.

For clarification, let me state that paragraph 39 of the judgment refers to the letter dated 8th September in which the point was made. Paragraph 41 of the judgment records the abandonment of the submission that the letter was not taken into account by the QASCC. As the judgment makes clear, QASCC's remit was limited to deciding whether the complaints raised concerns which, in the judgment of the QASCC, was sufficient to call for a referral to the tribunal; see paragraph 43 of the judgment where the reference is made to the limited remit of the committee, and the fact that it was a preliminary procedural stage. Paragraph 49 of the judgment refers to the threshold of consideration for referral by the committee. Paragraph 50 also makes it clear that it was not a matter of the QASCC determining matters of conflict.

As to the criminal proceedings, of which the criminal appeal forms part, paragraph 43 states that the claimant's demands for the transcripts of the trial were excessive. Paragraph 50 states that the committee had ample grounds for refusing an adjournment. The contention as it was advanced in advance of today by Mr Turner that the very issue in the complaint was raised in the criminal appeal, and that that made it imperative that the committee await the outcome of the appeal, in itself can only be regarded as uncertain if not speculative. Firstly without an exhaustive examination of the transcripts of the trial and the grounds of appeal, neither the committee nor this court could know whether the same issues were raised. As it now appears, the committee were never invited to consider whether or not the same issues were raised but were invited to accept a submission that the disciplinary considerations should be regarded as being decided in the Court of Appeal Criminal Division in a case involving an appeal of a defendant to which the claimant was not a party.

It was not a task for the committee, as the judgment already makes clear, for it to decide what the proper resolution of the various conflicting issues was. That was for the tribunal. What the Court of Appeal judgment would regard as a relevant issue and might rule upon, could not possibly have been known and is not actually known to this court, although I believe that after hearing argument in this court the Court of Appeal heard the appeal but whether or not it has resulted in a judgment this court knows not. When the Court of Appeal would rule, of course, could not have been to the committee at the time that this ground was put forward. I hope that clarifies all the matters which have caused anxiety to Mr Turner.

Mr Miskin, do you have any applications?

MR MISKIN: An Application for costs, my Lord. There is a schedule which has been served upon my learned friend and a copy of which has been provided to the court, I hope. I am going to ask for a summary assessment of the figure of £41,303.45. May I make just one or two remarks in favour of the application. There is no dispute, as I understand it, as to the principle of costs but there is an issue as to whether or not the assessment should be by a summary process or not.

MR JUSTICE NEWMAN: How long did the case take?

MR MISKIN: It took one day but was listed for two; we went fairly speedily on the first day, if you recall. Although it was listed for more than one day, it only lasted one. Accordingly, I would submit that there is a presumption of favour for summary assessment. There are sought on both sides -- it seems that Mr Turner's brief is virtually identical, the Treasury Solicitor rates are well known and we would submit that to put the matter off for a detailed assessment would be a disproportionate expenditure on what is a comparatively simple matter where your Lordship is in the best possible position to make a summary assessment.

If I fail in this application, may I put the alternative that your Lordship should order an interim payment of 75 per cent.

MR JUSTICE NEWMAN: Yes, let me see what I have here; I have a summary assessment of your costs, your junior's costs and those of the Treasury Solicitors that is the total of £41,303.

MR MISKIN: That is correct.

MR JUSTICE NEWMAN: As to that, counsel's fees take up -- where are Mr Ozin's costs?

MR MISKIN: It is the last fee note, the last few pages of the document £14,357-odd.

MR JUSTICE NEWMAN: I see. Your fees?

MR MISKIN: About 18.

MR JUSTICE NEWMAN: Right. How do we get to the figure of £25,204 on the second page of the bill?

MR MISKIN: It is the VAT element, as I understand it.

MR JUSTICE NEWMAN: I see. Leading and junior counsel total fees were, putting aside VAT, £25,200.

MR MISKIN: Yes.

MR JUSTICE NEWMAN: The balance of £15,000-odd were those of the Treasury Solicitor, made up in a number of hours by various computations and personnel according to their hourly rates.

MR MISKIN: Exactly.

MR JUSTICE NEWMAN: I have not seen anything from Mr Turner, should I have done?

MR TURNER: I am not going to be applying for costs. I am resisting my friend's application.

MR JUSTICE NEWMAN: I thought you made an observation that your brief has been about the same though.

MR TURNER: I have shown my friend this morning, I am going to show your Lordship my fee note.

MR JUSTICE NEWMAN: All right, thank you very much.

MR TURNER: Perhaps I could hand that up before I start (handed) so I do not have to interrupt myself.

Mr Miskin rightly apprehends that there is nothing I can say about the principle of costs, I accept that costs should follow the event. I do oppose the application for a summary assessment and I submit that there should be a detailed assessment on a summary basis, if and so far as the costs can be agreed in the meantime between the solicitors. A summary assessment, we submit, is a procedure that is intended to be adopted in short straightforward cases with limited cost implications and modest bills where no detailed analysis of how the costs have been built up is required. Bearing in mind of course that counsel, myself and Mr Miskin and perhaps your Lordship as well do not have any experience in the question of assessment of the detailed consideration of the question of costs. One knows anecdotally that it is very seldom a bill of costs remains unscathed on a detailed assessment.

For that reason, the general principle is that summary assessment is only applicable in a case which lasts no more than a day. The argument in this case lasted no more than a day, but that is not a true reflection of the complexity of the case. Technically, the case has lasted more than a day because today's judgment takes it over the day, to start with. The case only took a day because of the very detailed and lengthy written presentations that were before the court and your Lordship's willingness to engage in out of court consideration of the documentation in the case. Had it not been for that, even the substantive argument would have taken considerably more than a day and the matter was listed for two days.

The bill is not a bill for a relatively small sum, we submit that we are entitled to a more detailed breakdown analysis that would be required on a detailed assessment. The fact that leading counsel is involved at all takes it out of the straightforward category of cases and, in that regard, can I take your Lordship to the guidance given in the procedure rules first of all at part 48.36.

MR JUSTICE NEWMAN: I think you have a benefit over me.

MR TURNER: Does your Lordship not have a White Book?

MR JUSTICE NEWMAN: 2003 I have, I am nearly there. What page?

MR TURNER: 48.36 which is on page 1354 of the 2005 edition.

MR MISKIN: My Lord, another one has been handed up.

MR JUSTICE NEWMAN: Thank you very much.

MR TURNER: 48.36, page 1354 refers to Appendix 2 which contains, this is all in the context of summary assessments, a table of counsel's fees relating to proceedings in run of the mill cases in the Queen's Bench division, Chancery and Administrative Court. These figures are not recommended rates, but it is hoped that judges may find the figures of some help when they are called upon to assess counsel's fees.

If one then turns to those details which are at 48.50 at page 1360. We find, in relation to counsel's fees, a table set out on page 1361 that the last paragraph of the narrative before that table says:

"The table does not include any figures in respect of leading counsel's fees since such cases would self evidently be exceptional."

There is no guidance in the notes for guidance in the sort of case which is exceptional, and the mere fact that leading counsel is engaged, we submit.