England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		3 July 2009

The Honourable Mr Justice Silber:

I Introduction

1. This is an unusual case concerning the right of a coroner to express opinions on matters not relating to the circumstances in which the deceased person died. There are many cases in which the courts have had to decide if a coroner has said enough about the causes of death to comply with his or her statutory duties. In contrast in this case, the issues are first whether the coroner exceeded his powers in giving not only a verdict but also a judgment with some comments alleged to be improper and second (if the coroner exceeded his powers) what should now be done about it. There are statutory provisions which specify what coroners can and cannot do while conducting inquests and they form the important background to this novel and interesting application relating to what coroners are permitted to say when giving their verdicts.
2. In the early hours of 12 September 2006, Mr Ali Bullaleh died having been struck shortly before by a taxi and having in consequence suffered fatal chest injuries. An inquest into the death of Mr Bullaleh was held by Mr Keith Wiseman HM Coroner for the Southampton & New Forest District of Hampshire ("the defendant coroner") sitting without a jury.
3. On 22 January 2008, the defendant coroner recorded his verdict in narrative form explaining how Mr Bullaleh had died as a result of an accident. There is no criticism of his verdict or the short narrative, which formed part of the verdict. Indeed, Mr. Richard Hermer QC, who is counsel for Mr Farah ("the claimant"), who is the daughter of Mr Bullaleh, accepts correctly in my view that if that was all that the defendant coroner had said, there would have been no cause for complaint.
4. The claimant's complaint is that in addition to the narrative the defendant coroner delivered a judgment ("the judgment") which occupied forty-three pages of which the verdict only occupied two pages. Apart from dealing with matters relating to how Mr Bullaleh died, the judgment first contained numerous findings on matters that were not directly causally related to Mr. Bullaleh's death, second it included a number of allegedly derogatory comments about Mr Bullaleh that were not causally related to death and third it contained allegedly critical comments about the legal team acting for the family describing their conduct as unprofessional.
5. The claimant seeks an order quashing the judgment but no challenge is made to the verdict. Cranston J gave permission to pursue the claim.
6. The issues that are raised are:-

(a) Whether the defendant coroner had jurisdiction to deliver a judgment additional to the verdict and, if so, what it could or could not contain;

(b) Whether the court can strike out on a judicial review application comments made by a coroner in a judgment accompanying the verdict ; and

(c) Whether any of the judgment can be declared unlawful.

7. Mr Hermer contends first that the defendant had no statutory or common law power under the relevant legislation to give a judgment or what is described in the Acknowledgement of Service as a "pre-verdict comment" in addition to the verdict and second that, in any event, the matters explored and adjudicated upon in this judgment went far beyond the issues which a coroner had jurisdiction to either investigate or to comment on. He contends that the powers of the defendant coroner was limited to providing a verdict which made findings on central issues causally relevant to the death of Mr Bullaleh while the other further comments were beyond the defendant's jurisdiction.
8. Ms Cathryn McGahey counsel for the defendant coroner disagrees and she contends first that the coroner was entitled to deliver the judgment and second that his comments cannot be objected to.
9. There is also a dispute as to whether the defendant coroner's comments can be the subject of the present or any application for judicial review. The claimant contends that they can be judicially reviewed but the defendant coroner disagrees.

II The facts

10. To understand the submissions, it is necessary to explain a little about the circumstances leading to the death of Mr Bullaleh. In the early hours of 12 November 2006, Mr Bullaleh, who had been out for the evening, encountered Steven Bodley at the doors of a club in Southampton. Mr Bodley assaulted Mr Bullaleh, who subsequently made a number of 999 calls asking for both police and ambulance assistance. Mr Bullaleh stated correctly that he had been the victim of an assault. A paramedic attended on him at 2.49am on 12 November 2006 and an ambulance crew arrived at 3.03am. In addition at 3.06 am, two passing police officers by chance came across the scene where Mr Bullaleh was.
11. The paramedic and ambulance officers left the scene as did the police officers at 3.15am having searched Mr Bullaleh for drugs. He made one final 999 call very shortly thereafter. While Mr Bullaleh was making his way home, he fell over into the road where he was run over by a passing vehicle and he sadly died at 4.31am.
12. As I have explained, there is no criticism of the verdict of the defendant coroner, which was that:-

"On the night of the 11^th November 2006 Mr Ali Bullaleh visited a number of premises in the Bevois Valley area of Southampton. During the course of the night he became involved in an altercation with a doorman to one of those premises and was assaulted. Some fifteen minutes after this event Mr Bullaleh made contact with the emergency services and the police and ambulance services were asked to attend Mount Pleasant Road in Southampton.

The emergency services attended but were unable to provide care as Mr Bullaleh was resistant to help either at the scene or by being taken to hospital. He acted in an aggressive and threatening manner and was abusive.

Two police officers arrived and the ambulance staff then departed after a brief further conversation between them. Mr Bullaleh was then left in Mount Pleasant Road to continue on his way home as the officers did not consider that his behaviour merited either arrest or his being taken to a place of safety and the senior ambulance man present had satisfied them that he did not require further medical treatment.

From CCTV evidence Mr Bullaleh walked away from Mount Pleasant Road and proceeded to Bevois Valley Road were he had an eighteen minute conversation with two men; he then proceeded further up the road and fell or laid down on the road surface. Some minutes later he was struck by a taxi driving along Bevois Valley Road and as a result suffered fatal chest injuries. (By cross-reference to the entirety of the judgment)".

13. The criticism of Mr Hermer was directed as it had been in the written application for judicial review to various aspects of the judgment and, in particular, to the passages in which the defendant coroner said that:-

(a) Mr Bullaleh's "over familiarity with other customers particularly young women seemed to be a recurrent theme" and that "it may well have been the kind of behaviour potentially leading to a breach of the peace";

(b) the "only person obsessed with the race issue was Mr Bullaleh himself". The Coroner added that "I am afraid this is far from uncommon";

(c) "a false allegation of racist behaviour can be offensive and matter just as much to the person against whom misconduct is alleged as a genuine case of racial discrimination matters to the victim";

(d) Mr Bullaleh "was perfectly capable of going into any conversation or confrontation with a white person on the basis that he was being discriminated against" and that to "imagine" that the ambulance had been sent more slowly because of his race was "little short of paranoia";

(e) there "is not a shred of evidence that Mr Bullaleh was treated in any way differently because of his race and colour"; and that

(f) In relation to the conduct of the family's solicitors "To have alleged specifically that treatment had been unprofessional and inappropriate and that this had been actually motivated by racial prejudice was entirely wrong and in so far as it was endorsed by the family professional advisers was in itself entirely unprofessional. It had been known all along that there was not a single witness available to support what was being asserted and wild and unsubstantiated allegations have the potential to cause entirely inappropriate worry and concern to those against whom they are made".

III Did the defendant coroner have jurisdiction to deliver a "judgment" additional to this verdict and, if so, what could it contain?

14. The office of coroner is an ancient office and it is a creation of statute. Mr Hermer submitted that coroners do not have any inherent jurisdiction and nothing has been suggested on behalf of the defendant to show otherwise. He points out that sections 1 to 3 of the 1988 Act explain how coroners are appointed, what their qualifications are and the terms under which they hold office. The jurisdiction of coroners then is set out in section 5 of the 1988 Act and their duty to hold an inquest is set out in section 8 of the 1988 Act while the qualification of jurors is set out in section 9 of the 1988 Act.
15. In the present case as there was no jury and in those circumstances, the duty of the coroner was, as set out in section 11(4) of the 1988 Act, that:-

"In the case of an inquest held without a jury, the Coroner shall, after hearing the evidence –

(a) give his verdict and certify it by an inquisition; and

(b) inquire of and find the particulars from the time being required by the 1953 Act to be registered recording the death".

16. The 1988 Act then provides the form which the inquisition must take and what particulars shall be provided. It is common ground that the verdict in this case complies with those provisions. There can be no doubt that the judgment is not certified by an inquisition and so it is not part of the "verdict". Indeed the coroner defendant went to lengths to state precisely when his lengthy judgment ended and when his verdict started.
17. The Rules are also very specific and they set out what can be done at an inquest. Rule 36 which is entitled "Matters to be ascertained at Inquest" states (with my emphasis added) that:-

"(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely:

(a) who the deceased was;

(b) how, when and where the deceased came by his death;

(c) the particulars for the time being required by the Registration Acts to be registered concerning the death.

(2) Neither the Coroner nor the jury shall express an opinion on any other matters."

18. Rule 42 states that:-

"No verdict shall be framed in such a way as to appear to determine any question of –

(a) criminal liability on the part of a named person, or

(b) civil liability"

".

19. Before considering the significance of these provisions, I should add for the purpose of completeness that in R v HM Coroner for the Western District of Somerset, ex parte Middleton and Another [2004] 2 AC 182, the House of Lords considered that the effect of article 2 of the European Convention on Human Rights was that the investigative obligations on coroners contained in section 11(5)(b) of the 1988 Act and Rule 36(1)(b) of the Rules have to be construed "as meaning not simply 'by what means' but "by what means and in what circumstances'" ([35]). In that case, the inquest was held with a jury while in the present case, there was no jury but it was correctly accepted that the obligation of the coroner when sitting without a jury has to be construed in the same way.
20. A number of conclusions can be drawn from the wording of section 11(5)(b) of the 1988 Act and Rule 36(1)(b) of the Rules and they are that:-

(a) The use of the word "solely" in Rule 36(1) (b) of the Rules indicates the only matters to which the proceedings and the evidence at inquest must be directed. This conclusion is reinforced by the prohibition in Rule 36(2) which prevents the corner expressing an opinion on any other matter. Thus the only matters to which proceedings and evidence can be directed are (i) who the deceased was; (ii) how, when, by what means, in what circumstances and where the deceased came by his death; and (iii) the particulars for the time being required by the Registration Acts to be registered concerning the death. I will refer to these important matters as "the stipulated issues".

(b) In consequence, those words in Rule 36(1)(b) of the Rules mean that none of the proceedings nor any of the evidence at the inquest can be directed to any matter other than the stipulated issues;

(c) If the proceedings and evidence can only be directed to the stipulated issues, it must logically follow that any statement from a coroner can only relate to those matters as anything else falls outside the scope of his inquiry especially as Rule 36 (2) precludes a coroner giving an opinion on any other matter. Lord Bingham in Middleton (supra) referred to a statement by a coroner being acceptable if it "embodied a conclusion of a factual nature, directly related to the circumstances of the death" [37]);

(d) There is no provision preventing a coroner from giving a judgment which refers to matters falling within his jurisdiction by which I mean "the stipulated issues". Neither the Act (whether in its long title or otherwise) nor the Rules purport to constitute an entire code setting out all the functions of a coroner. Indeed there are some restrictions on what a coroner can do in Rules 36 and 42 as I have explained in paragraphs 17 and 18 above but they do not preclude a coroner giving a judgment on many other matters;

(e) Indeed there are matters on which a coroner may well be obliged to give a short judgment and they are closely connected with decisions on the stipulated issues such as why a line of questioning is objectionable and why a particular verdict cannot be left to the jury. If a coroner was not entitled to give those judgments on such issues, the unsuccessful party would not know why he or she had failed to persuade the coroner. In addition, this court would have difficulties in determining a subsequent application for judicial review. Furthermore, the coroner might be justified in explaining in a judgment the procedure he adopted in providing the verdict on the specified issues, such as how he had dealt with a claim by a witness that he need not answer a question because of his privilege against self-incrimination; and

(f) The right of the coroner to give a judgment on the stipulated issues must of course not infringe rule 36 or rule 42. It follows that as some of the judgment deals with the stipulated issues in describing how Mr Bullaleh was knocked down in his fatal accident, it cannot be quashed but I will return in Section V below to consider if any parts of it are objectionable.

IV. Can the court strike out on a judicial review application comments made by a coroner in a judgment accompanying the verdict?

21. Before considering if there are any other limitations on the power of a coroner to give a judgment, it is appropriate to consider Ms McGahey's contention that the present application for judicial review must be dismissed for what she describes as two "sound policy reasons". The first is that there is an alternative remedy available as "if a coroner makes inappropriate remarks in the course of an inquest…a complaint can be made to the Office for Judicial Complaints". In my view, this submission fails to appreciate the rationale of this judicial review application which is not to punish the defendant coroner but to remove unjustified criticisms from the record of Mr Bullaleh, his family and his legal advisers. A finding of the Office for Judicial Complaints would not achieve that aim as it would leave the judgment intact and it would probably not deal with individual passages in the judgment. So it is not an effective alternative remedy for the claimant.
22. The second policy reason relied on by the defendant for not entertaining the present judicial review application is the "floodgates" argument, which is that there would be many claims if statements made by a Coroner are open to challenge when the verdict is unobjectionable. I accept that there must be proper limits on the right of parties to challenge remarks of a coroner made in a judgment but these constraints should not preclude judicial review applications in appropriate cases although the threshold for intervening must not be low as I will explain. Otherwise, for example, there would be no right to challenge statements by a coroner that there was criminal or civil liability on a party contrary to rule 42 of the Rules. The issue in this case relates to a wider issue which concerns the right to obtain a declaration that remarks are unlawful even though they do not infringe rule 42 of the Rules. A court would be reluctant to refuse to interfere if a coroner dealing with an inquest concerning a death arising from an ambulance running over and killing a man who was on a zebra crossing wrongly described the deceased as an escaped murderer and a paedophile. It would surely declare such comments to be unlawful.
23. The only case discovered by counsel in which a court had declared that a coroner had made unlawful comments was R (Mowlem plc) v Assistant Deputy Coroner for Avon [2005] EWHC 1359 (Admin) in which Wilson J (as he then was) granted a declaration that comments made by the coroner were unlawful as they fell outside Rule 36 in that case. As no point on the jurisdiction to make the declaration or on the judge's right to make the declaration was argued in that case, its decision is of limited value on the issues now under consideration although it does show that an experienced judge considered that he had that jurisdiction even though it was not disputed.
24. After I had reached a provisional view on the way a court should decide if it would declare a part of a judgment unlawful, I was comforted that my provisional conclusion was in accordance with the well-known test in Nichol v Gateshead Metropolitan Borough Council (1988) 87 LGR 435, 460, which was that:-

"The court has an overall discretion as to whether to grant [a remedy] or not. In considering how that discretion should be exercised the court is entitled to have regard to such matters as the following: (1) The nature and importance of the flaw in the challenged decision (2) The conduct of the [claimant]. (3) The effect on administration of granting [the remedy]".

25. The discretionary nature of the remedy of judicial review and the significance of "the nature and importance of the flaw in the challenged decision" means that the mere fact that comments by a defendant coroner fell outside the stipulated issues does not automatically entitle the relatives of the deceased to any relief. If this were not so and the coroner defendant had accurately described the height or religious affiliation of Mr Bullaleh, it would fall outside the stipulated issues but it could not be the subject of a successful judicial review application. The need to consider "the conduct of the claimant" means that a justified critical comment on the deceased could not be impugned. By the same token, an unjustified, but not significant, criticism of the deceased could not be successfully challenged.
26. It should not be forgotten that the judgment of a coroner is not only the last word on the deceased but that it significantly also has the important status of having been delivered by a judicial officer after carrying out an inquiry into how the deceased died.
27. Such a declaration may be made if the comments (i) do not relate to any of the stipulated issues in any way; (ii) are matters of opinion; and (iii) are sufficiently unfairly critical and offensive of any party as to justify the intervention of the courts. It is not possible to give a comprehensive list of cases which would fall in these categories but an allegation of criminal conduct or professional misconduct would probably fall into that category especially as rule 42 precludes a finding by a coroner of criminal liability although that relates to the cause of death. So would behaviour which would be regarded as repugnant by right-thinking members of the community. This approach would be consistent with what was said in the Gateshead case and it would ensure that coroners focus their attention solely on the stipulated issues and so it would have a beneficial effect on the administration of justice.

V Can any of the judgment of the Defendant Coroner be declared unlawful?

28. I have already explained why some parts of the judgment cannot be struck out insofar as they deal with the stipulated issues but I must now turn to consider the passages in the judgment about which Mr Hermer complains. They have to be considered against the background that the relevant stipulated issue which had to be considered was "how, when, by what means and in what circumstances and where" Mr Bullaleh came by his death. The earliest relevant circumstance occurring on the night when he died must have been when he encountered Steven Bodley at the doors of a club and was assaulted by him as nothing that occurred earlier could have been causally connected to Mr Bullaleh's death or would have been relevant to the stipulated issues at the inquest.
29. Against that background, I agree with Mr Hermer that the defendant made comments which were well outside the stipulated issues when he referred to Mr Bullaleh's "over familiarity with other customers particularly young women seemed to be a recurrent theme" and that "it may well have been the kind of behaviour potentially leading to a breach of the peace".
30. Having read the transcripts, these comments do not appear to have any relevance whatsoever to the circumstances in which Mr Bullaleh died which was by being knocked down. Further they constitute opinion evidence of the kind which a coroner is precluded from giving by Rule 36(2) which is set out in paragraph 17 above. Those comments constitute gratuitous and seriously offensive comments concerning Mr Bullaleh because very significantly it suggests that this "recurrent theme" had the potential to lead to a breach of the peace. In those circumstances, I consider it appropriate to grant a declaration that those comments were unlawful.
31. The next series of comments to which Mr Hermer objects relate to the defendant coroner's comments on the contention that Mr Bullaleh was discriminated against on grounds of race. As I have explained in paragraph 11, Mr Hermer objects to many of the comments made by the coroner defendant in relation to the allegations that Mr Bullaleh had been discriminated against on grounds of race.
32. The first issue to be considered was whether the coroner defendant had to deal with allegations of racial discrimination. In my view for reasons which I will explain, there was much evidence that Mr Bullaleh believed that he had not been properly treated by the emergency services because of his race and in particular that he had not been properly cared for by the police and the ambulance men after he had been attacked by Mr Bodley very shortly before he was knocked over and died. Clearly, an allegation that Mr Bullaleh received medical treatment from agents of the State which was inadequate for racial reasons shortly before his death required proper investigation by the defendant coroner.
33. As I have explained, when Mr Bullaleh informed both the 999 operator and members of the emergency services who attended him that he had been assaulted, he had mentioned that the perpetrator was a white man but that is not a significant factor as the only relevance of race to the stipulated issues is that Mr Bullaleh's treatment by the emergency services was inadequate for racial reasons. What was important and required investigation by the defendant coroner was that in the course of the 999 calls that Mr Bullaleh made and in his dealings with the ambulance men and the police officers who attended him Mr Bullaleh alleged that he had been treated unfairly because he was black.
34. During the course of the preparation for the inquest, his family representatives contended that Mr Bullaleh had been inappropriately dealt with both by the police officers and by the ambulance service, who had neglected him and that this neglect occurred because of Mr Bullaleh's race and colour. Of course, that neglect could have been causative of his death within about 90 minutes of being treated by the emergency services. This matter required investigation by the defendant coroner especially as the allegation had not been abandoned. Indeed if he had not considered these allegations of racial discrimination, he could have been criticised for failing to do so as part of his investigative powers.
35. These matters were pursued by the family's legal representatives in a letter to the defendant coroner of 19 July 2007 in which it was contended that if both the police and ambulance services had treated Mr Bullaleh appropriately and according to their guidelines, he would not have collapsed and then would not have been run over with the result that their treatment more than minimally contributed to his death and significantly that "these concerns overlay the fact that [Mr Bullaleh] before he died believed his treatment was due to his race".
36. On 12 September 2007 the claimant's solicitors sent a fax to the defendant coroner indicating that "our client's concern that neither the ambulance service nor the police service treated her father as they should have done and that race may well be relevant stems from a number of sources". The concern of the claimant was due to the important facts first that Mr Bullaleh had raised the issue of his race with the 999 service, second that he had complained to them that the initial assault was race-biased and third that his treatment from Mr Robbie Brown (the emergency care technician who was the first ambulance man to attend) was race-biased as was the treatment from the police officers attending.
37. At a pre-inquest hearing on 13 September 2007, all the parties were represented and on that occasion it was decided that the defendant coroner would hear the matter without a jury and that a Middleton-type inquest would be held. The defendant coroner delivered a pre-inquest judgment (which is not the subject of any complaint) in which he noted that in relation to the ambulance services, Mr Bullaleh's family alleged that "there was a failure to assess [Mr. Bullaleh's] situation properly and that this was partially at least through racial prejudice against Mr Bullaleh, who is a Somali by original nationality". This was disputed by the emergency services.
38. The defendant coroner in his pre-inquest judgment explained that he passed no comment on this allegation but he stated that "it will be precisely what I am investigating in due course at the inquest and my findings on the evidence I hear will of course be made at its conclusion". He has recorded that no party objected to that statement of his intention. The defendant coroner also noted that in the three-month period between the pre-inquest decision and the inquest, the claimant did not suggest that they were withdrawing the allegations of racial discrimination. There is nothing in the correspondence which indicates that the allegation of racial bias in the treatment of Mr Bullaleh was not to be pursued or that it had been abandoned.
39. During the inquest, no specific allegations of racial discrimination were made but the previous allegations were not withdrawn. There was an exchange between counsel for the claimant (who was not Mr Hermer) and Mr Robbie Brown, who was the emergency care technician, during which Mr Brown was asked how he had responded to Mr Bullaleh's accusation of racism and whether those accusations had affected his perception of Mr Bullaleh.
40. The inquest also heard from the recordings of Mr Bullaleh's call to the emergency service where he emphasised his Somali origin and how he thought the delay in help coming to him was because of his race. There was also evidence from Mr Peter Orr of the IPCC, who had investigated Mr Bullaleh's death and who was asked whether he had investigated allegations of racially discriminatory behaviour on the part of the police. He replied that he had done so and that he had found no evidence of such conduct. It appears that none of the representatives at the inquest objected to the conclusions to the report. The defendant coroner had previously explained to the parties that he would treat the report and its conclusions as speaking for themselves until challenged.
41. There was evidence to suggest that first Mr Bullaleh up to the time of his death and second his family at some stage of the inquest proceedings (if not right up to the end of it) believed that he had been the subject of discrimination on grounds of race by the emergency services shortly before his death. That was an important allegation which the defendant coroner was entitled, if not obliged, to deal with especially as if correct it would show wrongful conduct by agents of the state and which might have contributed to Mr Bullaleh's death. The role of the coroner was inquisitorial and in my view there can be no criticism whatsoever of the coroner for his statement which Mr Hermer criticises that there "is not a shred of evidence that Mr Bullaleh was treated in any way differently because of his race and colour". As the designated fact-finder, the defendant coroner was entitled to reach this conclusion and I stress that he cannot be criticised for it especially as no evidence has been put forward to show that this allegation was wrong.
42. The defendant coroner also made comments to which the claimant objects :-

(a) that the "only person obsessed with the race issue was Mr Bullaleh himself". It is significant that Mr. Bullaleh did say to Mr. Brown that he would "not do this if I was a white man" and he later repeated allegations that he was being treated in a particular way because of his colour. Mr. Bullaleh had made similar comments that he was being treated unfavourably when he made 999 calls. It does seem that Mr. Bullaleh was preoccupied with unfair treatment on grounds of race and although the defendant coroner expressed himself very strongly when he used the word "obsessed", I do not consider it so objectionable as to reach the threshold for obtaining a declaration that it was unlawful;

(b) The defendant coroner then added after the comment set out in (a) above, that "I am afraid this is far from uncommon" but I do not believe that this should be declared unlawful either;

(c) That "a false allegation of racist behaviour can be offensive and matter just as much to the person against whom misconduct is alleged as a genuine case of racial discrimination matters to the victim". This statement is true and I do not understand how it can be objected to especially as the defendant coroner rejected the allegation of racial discrimination and by itself this comment did not amount to criticism of Mr. Bullaleh; and

(d) That Mr Bullaleh "was perfectly capable of going into any conversation or confrontation with a white person on the basis that he was being discriminated against" and that to "imagine" that the ambulance had been sent more slowly because of his race was "little short of paranoia". This was opinion evidence not connected in any way with the stipulated issues but what is of crucial importance is that the opening words suggest that Mr. Bullaleh was prepared to make offensive allegations of racial discrimination on a regular basis and as the defendant coroner himself explained making false allegations is a serious matter. There is no evidence that Mr. Bullaleh had prior to this incident or had habitually made wrongful allegations of racial discrimination although he did allege that that the arrival of the ambulance was delayed because of his race. Therefore there should be a declaration that it was unlawful.

43. I must now deal with the criticism that the defendant coroner felt necessary to make about the claimant's solicitors when he said that

"To have alleged specifically that treatment had been unprofessional and inappropriate and that this had been actually motivated by racial prejudice was entirely wrong and in so far as it was endorsed by the family professional advisers was in itself entirely unprofessional. It had been known all along that there was not a single witness available to support what was being asserted and wild and unsubstantiated allegations have the potential to cause entirely inappropriate worry and concern to those against whom they are made".

44. I am told that the defendant coroner had not given the solicitors any opportunity to comment on that. In any event his comment is totally outside the stipulated issues and it constitutes an allegation of professional impropriety as he described their behaviour as "entirely unprofessional". That criticism in my view was totally unjustified because the solicitors were entitled to put forward what their client believed to be the position and above all what Mr Bullaleh had been recorded as saying shortly before his death.
45. It must not be forgotten that solicitors act as mouthpieces for their clients and they should not be criticised for communicating their instructions which they had no reason to believe to be inaccurate even though those instructions were later found to be incorrect. As Sir Thomas Bingham M.R. (as he then was) explained in Ridehalgh v Horsfield [1994] Ch 205 at 233H, "a legal representative is not to be held to have acted improperly, unreasonably or negligently simply because he acts for a party who unreasonably pursues a claim or a defence which is doomed to fail". Therefore the defendant coroner should not have made the comments which he did about the claimant's solicitor and I consider that it is appropriate to grant a declaration to the effect that this passage was unlawful.
46. I should emphasise that coroners should be extremely careful about criticising professional advisers especially when they have not given the professional advisers an opportunity to comment on the criticisms that they propose to make. The right to give judgments is a privilege and it should not be abused. The comments set out in paragraph 43 above were in my view not only not relevant to the stipulated issues but it was wrong for the defendant coroner to criticise the claimant's solicitors in this way especially without hearing what they had to say in response to these allegations. Hopefully no coroner will do this again.

VI. Conclusions

47. For the reasons which I have given I have concluded that:-

(a) A coroner sitting without a jury is entitled to give a verdict and a judgment dealing with the stipulated issues which are (i) who the deceased was; (ii) how, when, by what means and in what circumstances and where the deceased came by is death; and (iii) the particulars for the time being required by the Registration Act to be registered concerning the death;

(b) A coroner is entitled to give a judgment on matters which arise during the inquest and which are relevant to the determination of the stipulated issues;

(c) The Court has jurisdiction which should be sparingly exercised to declare comments made by a coroner as being unlawful. Such a declaration may be made if the comments (i) do not relate to any of the stipulated issues in any way; (ii) are matters of opinion; and (iii) are sufficiently unfairly critical and offensive of any party; and that

(d) Declarations should be made that comments made by the defendant coroner in his judgment in respect of the matters referred to in paragraphs 30, 42(d) and 45 above are unlawful.