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
		23/02/2010

The Hon Mr. Justice Burnett:

Introduction

1. This is an application for judicial review of the Coroner's refusal to recuse himself from the second inquest into the death of Adam Rickwood. He died on 8^th August 2004 when he took his own life in his bedroom cell at Hassockfield Secure Training Centre. He was only 14. An inquest was heard before HM Coroner for the North and South Districts of Durham and Darlington sitting with a jury over a 5 week period from 30^th April 2007. Some hours before his death, Adam Rickwood had been physically restrained. The question arose at the inquest whether that restraint was lawful. The Coroner was faced with conflicting submissions on that issue. He also faced conflicting submissions about whether it was necessary or appropriate for him to rule on the issue. In the event he declined to rule.
2. At the conclusion of the evidence, the jury was provided with 11 questions to answer in connection with Adam Rickwood's death.
3. An application for Judicial Review seeking to challenge the Coroner's decision not to rule on the legality of the restraint came before Blake J: [2009] EWHC 76 (Admin). He delivered judgment on 22^nd January 2009 and summarised the evidence that was given at the inquest concerning the restraint:

"[10] In broad terms the evidence adduced at the inquest reveals the following picture. In the early evening in question, Adam and another inmate were in their free association period outside their bedroom cells. A third inmate who had been deprived of association and sent to his cell for disciplinary reasons passed a note under his cell door to Adam in which abusive remarks were made about the female training officer (Ms Murray) who was supervising the trainees. As a result of disobeying an order to hand over the note, Adam was himself ordered to go to his cell by way of sanction. He refused to go to his cell protesting that he had done nothing wrong. He sat down and resisted requests to move without offering any violence to himself, other inmates or staff or inciting other inmates to violence or disorder. Ms Murray called a more senior officer (Mr Gardiner), whose attempts to persuade Adam to go to his cell were also unsuccessful and who in turn called for emergency assistance from other members of staff by way of a call known as first response. The evidence before the inquest suggested that calling for first response tended to result in the use of physical restraint. Officers Hamilton, Lowerson, Clark and Hodgson attended the scene in response to the call. As Adam still refused to leave the association area voluntarily two male officers (Hamilton and Lowerson) physically took hold of each of his arms. He struggled in resistance to this and so a third officer (Hodgson) controlled his head with both hands. There was further resistance and a fourth training officer (Clark) came from behind Adam and took hold of both his legs. He was lifted off the ground and moved face downwards to his cell where he was placed face down on the floor before the officers left the cell. Officer Horseman attended to make a video recording of the restraint. During the manoeuvre, Mr Hodgson, the officer who held Adam's head feared that Adam was trying to bite the officer's fingers and so applied what is known as a nose distraction technique. This is a short sharp movement applying force by fingers under the nostril against the counter-force of the other hand holding the back of the head. It is a pain-compliant technique. It made Adam very upset and angry during the rest of the manoeuvre and immediately thereafter. It caused his nose to bleed. This was not an unusual outcome of the application of this technique in Hassockfield. When he was locked into his cell and left alone for some 30 minutes he was bleeding from his nose and shouting that he would use violence on the officer who had applied the force. He smeared blood over the walls to his cell, smeared toothpaste over the spy-hole to his cell door and flooded his cell with water. Later he appeared to have calmed down, was allowed out on association, cleaned up his cell and spoke to his solicitor. He made it plain that he wanted to complain about the force used on him. Around 8.00pm he was seen by a nurse who noted a small amount of swelling over the bridge of the nose, and dried blood around the nose and mouth. She did not consider any hospital treatment was needed that evening. He went to bed and was last checked inside his cell around 9.30pm when he seemed to be calm and focused on the day ahead. He was observed to be moving around his cell through the hatch over the next two hours. At one point he was required to remove a piece of card blocking the hatch. He was found in his bedroom cell fatally asphyxiated shortly before midnight. The injuries he received in the restraint were minor and not the direct cause of death."

Blake J concluded that it was impossible for an enquiry to be made into whether the force used on Adam Rickwood was appropriate or proportionate without the Coroner ruling or giving clear guidance to the jury on whether the force was lawful. As he put it, "a restraint can hardly be appropriate if it is unlawful." [62]. He also concluded that the force used on Adam Rickwood was clearly unlawful having regard to the Secure Training Centre Rules 1998 (SI 1998/472) ["the Rules"], in particular Rules 36 to 38. In the period between the inquest and the hearing of the Judicial Review, the Court of Appeal had delivered judgment in R (C) v. Secretary of State for Justice [2008] EWCA (Civ) 882. That case concerned revisions to the Rules which the Court of Appeal considered were unlawful because, in particular, "pain compliance" techniques when applied to children would violate Article 3 of the European Convention on Human Rights ["ECHR"]. The nature of the restraint imposed on Adam Rickwood involved pain compliance. Additionally, the Court of Appeal had cause to consider the very question of the legality of the restraint of Adam Rickwood. It had been the submission of Serco, through its leading counsel at the inquest, that the restraint was lawful. Serco's witnesses (in circumstances to which I shall return) stated their belief that the restraint was lawful. The Court of Appeal noted that the view of the law so expressed was wrong (see paragraph [15] of the judgment of Buxton LJ).

4. Blake J. also considered the distinct question whether the restraint of Adam Rickwood some hours before his death was or may have been causative of the death. The Coroner and interested parties before him had argued that there was no causation. Blake J. disagreed. He considered that the question was open and that as a matter of inference a jury might conclude that the events so shortly before Adam Rickwood took his own life may have been a factor in his doing so, despite there being cogent evidence of an accumulation of factors that are likely to have led to his despair. Blake J. also considered whether, despite the failure of the Coroner to rule on the legality of the restraint, there should be a fresh inquest. That question was not clear cut. However, he concluded there should be a fresh inquest. In paragraph [80] of his judgment he said this:

"I therefore allow this application for judicial review. I will quash the inquisition reached by the jury and remit the matter to the Coroner to conduct a fresh inquiry in accordance with this judgment. The remit and scope of that inquiry will be for the Coroner having heard the submissions. I merely express the hope that the parties may be able to agree that certain matters are now not so controversial or unclear as to require extensive live evidence and cross-examination, and that there may be scope for an agreed statement of facts to be read or put to the jury. I am grateful to all counsel for their considerable assistance in this sad and challenging case."

It is clear that the Judge expected that the matter would be remitted to the Coroner to conduct a fresh inquest having taken care with the interested persons to define its parameters. He anticipated that the Coroner, with the assistance of the interested persons, would devise mechanisms to avoid the unnecessary repetition of oral evidence which, following the earlier inquest, might be admitted in writing. No suggestion was made to Blake J. that the Coroner should not conduct the fresh inquest: it was not a matter upon which he was asked to rule.

This Application

5. The Claimant in these proceedings (as in the proceedings before Blake J.) is Adam Rickwood's mother. She seeks an order that the Coroner recuse himself from the second inquest. The Youth Justice Board ["YJB"], a body with statutory responsibilities for children in custody, is an interested party in these proceedings and was an 'interested person' at the inquest. Hassockfield STC is run by Serco Home Affairs Limited. They are an interested party in these proceedings and were an 'interested person' at the inquest.
6. Following the successful application for judicial review, on 29^th February 2009 the Claimant's solicitors wrote to the Coroner inviting him to seek the appointment of an ad hoc Deputy Coroner to conduct the fresh inquest. In broad terms, two reasons were advanced. First, that the nature of the inquest, involving as it did the suicide of a 14 year old boy shortly after he was unlawfully restrained in circumstances where the integrity of those caring for him was being impugned, called for an experienced judicial figure to conduct the inquest. A number of examples of that having been done were given, including the inquest into the death of Gareth Myatt at Rainsbrook Secure Training Centre, conducted by His Honour Richard Pollard. The second reason, stated with some diffidence, was that the way in which the Coroner had conducted the Judicial Review proceedings before Blake J. coupled with criticisms made in the judgment, made it inappropriate for the Coroner himself to conduct the second inquest.
7. These matters were developed by Mr. Hermer QC, acting for the Claimant, at a pre-inquest hearing on 14^th April 2009. In those submissions, he was supported by counsel for the YJB and for Lancashire County Council. Whilst no actual bias was or is alleged against the Coroner, nor is his good faith impugned in any way, it was submitted that there is apparent bias which should lead him to recuse himself. The Coroner considered the matter. In his ruling he concluded that it was appropriate for him to continue to preside over the inquest. He also said:

"Mr Hermer QC proceeded to suggest in the second part of his application that were I to agree to recuse myself who should be appointed to hear the inquest. I agreed with his suggestion that it would be improper for either my deputy or assistant deputy to hear the inquest were I not to hear it myself. He suggested that it would be appropriate for a serving or recently retired High Court Judge to be appointed as an assistant deputy coroner to hear the inquest, bearing in mind the nature of the case and that I should contact the Ministry of Justice in that regard. As previously mentioned, I have made enquiries with the Ministry of Justice and it would not automatically follow that even if I were so to approach the MOJ to seek the appointment of a judge that this request would be acceded to. It is my understanding that the MOJ take the view that except in the most exceptional circumstances inquests should be heard by Coroners and not judges, a view which was recently endorsed by Lord Bingham speaking extra-judicially. It may be that another coroner, deputy or assistant deputy coroner would be an appropriate person to hear the inquest if I were not to do so. My observations in this regard do not form part of my decision- making process in this case but are included herein in fairness to the proposition put by Mr Hermer QC."

8. The Coroner did not consider the subsidiary matter, namely whether in any event it would be appropriate to seek the appointment of an ad hoc Deputy or Assistant Deputy Coroner given the nature of the inquest. His indication was that, were he to recuse himself, he would not invite his current Deputy or Assistant Deputy Coroners to deal with this inquest. He considered it would be appropriate to find somebody suitably qualified whatever their formal judicial or other status.
9. As I have indicated earlier, this application for judicial review challenges the decision of the Coroner not to recuse himself. The Claimant's grounds also sought a mandatory order requiring the Coroner to 'appoint a deputy coroner' irrespective of her success on the first ground. The basis of the argument was that the nature of the inquest is such that only a senior judicial figure should conduct it.
10. Mr. Hermer QC did not pursue the second ground. However, he invited the Court to express a view about the type of person who should conduct this particular inquest.

Bias

11. The bias argument could have been taken before Blake J. Had it been, these proceedings would have been unnecessary. If satisfied of the merits of the argument, the Judge would have directed that the fresh inquest take place before a different Coroner. Mr Hough, for the Coroner, agreed that there was no jurisdictional bar to the point being taken separately and late. If the argument is well made, it would not be lawful for the Coroner to preside over the fresh inquest.
12. There was no disagreement between the parties as to the appropriate test to apply in cases such as this. Where an allegation of apparent bias is made, the test to be applied is "whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased". That is the test approved by the House of Lords in Porter v. Magill [2002] 2AC 357, per Lord Hope of Craighead at [103] adopting the approach of Lord Phillips of Worth Matravers MR in In re Medicaments and Related Classes of Goods (2) [2001] WLR 700. The fair-minded and informed observer is neither unduly sensitive nor suspicious yet he is not complacent. He is assumed to have taken the trouble to acquire knowledge of all relevant information before coming to a conclusion: see Helow v. Secretary of State for the Home Department [2008] 1 WLR 2416, per Lord Hope of Craighead between paragraphs [1] and [3]. The fair-minded and informed observer is also expected to be aware of the law and the functions of those who play a part in its administration: see Lawal v. Northern Spirit [2003] UKHL 35 at paragraphs [21] and [22]. When applying the test, any Court will take account of an explanation given by the tribunal and assume that the hypothetical observer is also aware of that explanation: see In re Medicaments [67]. In AWG Group v. Morrison [2006] EWCA (Civ) 6, [2006] 1 WLR 1163, the Court of Appeal summarised a number of the principles in play. In paragraph [8] of his judgment, Mummery LJ cited a passage from Locabail (UK) Limited v. Bayfield Properties Limited [2000] QB 451 at 480, in which it had been observed that in most cases the answer regarding apparent bias would be obvious. However, the Court on that occasion went on to indicate that if there were real ground for doubt, the doubt should be resolved in favour of recusal. Mummery LJ added:

"Most of the leading authorities were appeals arising from hearings that had already taken place or were under way and an objection to the judge was based on facts discovered during the course of, or only after the end of, the hearing. Although this is a different case, as the hearing has not yet started, the same principle applies. Where the hearing has not yet begun, there is also scope for the sensible application of the precautionary principle. If, as here, the court has to predict what might happen if the hearing goes ahead before the judge to whom objection is taken and to assess the real possibility of apparent bias arising, prudence naturally leans on the side of being safe rather than sorry."

13. Mr. Hermer QC identified a large number of issues that the Claimant considered would fall for investigation at the renewed inquest. The Coroner and the interested parties in these proceedings (the interested persons at the inquest, as they are called) were understandably anxious to avoid the possibility that this Court might endorse the breadth of those issues. That is because the interested persons have not yet had the opportunity to make submissions to the Coroner about the scope of the inquest. I have quoted paragraph [80] of the judgment of Blake J. which recognises that the scope of the inquest is yet to be determined.
14. There are three particular issues within the galaxy of those identified by Mr. Hermer QC upon which he submits that the Coroner has publicly committed himself to a particular factual outcome. It is those that found the arguments of apparent bias. The issues are:

a) The causal significance in Adam Rickwood's death of the earlier removal and restraint;

b) Whether those employed by Serco at Hassockfield STC honestly believed that it was lawful for them to remove and restrain Adam Rickwood in the way they did;

c) Whether the YJB and its staff honestly believed that the Serco employees had power to do as they did.

15. The factual context of the first issue needs no great elaboration. The position is now clear that the way in which Adam Rickwood was treated was unlawful. Whether that unlawful treatment was causative of his death is plainly a matter that calls for investigation. The Coroner, YJB and Serco had submitted to Blake J that there was no causation. That formed part of the factual basis for suggesting that there was no need for a fresh inquest. Blake J concluded that it might be inferred that there was a causal link. He also thought that the question might be further illuminated by expert evidence.
16. The circumstances in which the second issue arises are as follows. Serco's position at the inquest was that the power to restrain did not spring exclusively from the Rules but was located in Section 9 of the Criminal Justice and Public Order Act 1994 ["the 1994 Act"]. It was that contention which was roundly rejected by the Court of Appeal in C, and by Blake J. A series of documents dating from before and around the time of Adam Rickwood's death to which Serco was privy, or of which they were at least aware, provides no support for their contention. For example, the contract between the Home Office and Serco contains a section in Schedule D concerning the use of physical restraint and separation which mirrors and refers to the Rules. The Policies and Operational Procedures issued by the Director of Hassockfield STC in April 2002 likewise contain guidance on the use of physical restraint which is consistent with the terms of the Rules. On 31^st August 2004 the Chief Executive of the YJB wrote to the directors of all secure training centres about "physical control in care". That letter too referred to the Rules rather than any broader power. In November 2005, in the course of a Parliamentary debate about STCs, the Parliamentary Under Secretary of State at the Home Office emphasised that the use of restraint must be lawful and could be authorised only for the strict purposes identified in the Rules. With that by way of background Mr. Hermer QC points out that in statements made in the course of the immediate investigation after the death, Serco staff did not suggest that any power existed outside the Rules to render lawful what otherwise would have been an assault. Yet at the inquest, the Serco staff (from the Director downwards) relied upon the 1994 Act as the source of the power they were using to restrain Adam Rickwood. As we have seen, the question whether their actions were in fact lawful was not before the jury. However, questions were asked directed to whether the staff genuinely and honestly believed that they had power to do what they did and if so where that power came from. The Claimant would wish to explore that matter afresh at the inquest.
17. There was evidence before the inquest that the use of restraint at Hassockfield regularly occurred outside the boundaries of what the Rules permit and further that techniques involving pain compliance were in regular use.
18. The third of the issues is allied to the second. Mr. Bowers, a senior witness from the YJB, suggested that in 2004 the YJB had considered that the power to restrain was wider than that found within the four corners of the rules. He supported the view of the Serco witnesses. As Blake J. observed (see paragraphs [25] to [28]), there was no contemporary evidence that the YJB thought that the 1994 Act gave authority to use force to maintain order and discipline. Nonetheless, that is what Mr. Bowers said in evidence at the inquest. The Claimant was anxious to explore through Mr. Bowers the foundation for the evidence he was giving. The purpose of such exploration would be to establish whether what Mr. Bowers was saying was in fact correct. Beyond that, the Claimant wished to explore whether Mr. Bowers genuinely believed the evidence he was giving.
19. Mr. Hermer QC on behalf of the Claimant makes no bones about the fact that the Claimant questions the integrity and honesty of the Serco and YJB witnesses. She wishes to explore those matters further at the fresh inquest.
20. In respect of each of these three issues, the Claimant submits that the Coroner has expressed concluded views on the factual issues which, taken individually or collectively, would lead the fair-minded and informed observer to believe that there was a real possibility of bias if the Coroner were to preside over the second inquest.
21. Mr. Hermer identifies a number of passages in the detailed grounds of resistance and the skeleton argument lodged by the Coroner in the Judicial Review proceedings before Blake J as demonstrating that he has predetermined the question whether the separation and restraint were causative of Adam Rickwood's death. There are five passages in the detailed grounds which bear on this question. They are as follows:

a. "10. There was no evidence that the restraint generally, or the technique applied, had directly caused the death or that it had had any physical effect on AR other than noted above. There was no evidence that it had had any particular effect on AR mentally, save that he expressed an intention to make a complaint. There appeared to be no evidence, nor any suggestion of, any causal connection between it and the death. It was not submitted by the family that there was any such direct link of the sort which might have justified a consideration of an unlawful killing verdict. The jury in their answers found no causal connection."

b. "12. A note left by AR is found at volume 2 page 695. It is notable for how well written and how lucid it appears AR then was. It does not suggest he regarded the restraint as an element of his decision, as it is not mentioned in this note. He begins by saying, "Lately over the past few months or so things have been very hard for me …". While he did write the other note mentioned at paragraph 9 above, it does not suggest that the restraint caused him to act as he did."

c. "18.4 There was no evidence that the restraint was a circumstance which directly caused the death. When considering whether it might have been a matter preying on AR's mind the jury would not have been assisted by knowing whether the restraint was lawful. It was fanciful to suggest that, even though he resented the application of the technique, that emotion flowed from a concern that the technique, in common use at Hassockfield, was unlawful."

d. "18.5 Once it is recognised that the restraint, 6 hours before his death, played no known or identifiable part in AR's decision, and that he could not have been concerned about its lawfulness or otherwise, and the staff believed they were exercising a lawful power, it can be seen that the issue is irrelevant. The issue is then not whether the restraint was lawful, but whether AR exhibited any signs after the restraint which made it necessary for any of the interested persons to act in any particular way. It is in those circumstances that the risk presented by the matters identified in paragraph 18.1 and 18.2 made it imperative that the issue was not made the subject of a direction."

e. "22. … It is submitted that if the contention that the restraint played no part in the death is correct, there is not even evidence of negligence by the staff at Hassockfield."

22. The passages from the Coroner's earlier skeleton argument to which the Claimant points to suggest that he has decided the causation point are as follows:

a. "2.2 There was no evidence that the restraint, the lawfulness of which is the subject of this claim, had any physical effect on Adam save that it caused some pain and a nosebleed. There was no evidence, and the jury did not find, that it caused him to resolve to take his life. While it was accepted that the restraint was a proper subject of consideration in the inquest, it was never accepted by the Defendant or any of the interested parties, nor was it even suggested by the Claimant, that it may have been a cause of death, contrary to what is now suggested by the Claimant at paragraph 15 of her skeleton argument."

b. "2.3 Whatever the effect the restraint may have had upon him psychologically, it is now accepted at paragraph 20 of the Claimant's skeleton argument that this would not have been affected by the lawfulness or otherwise of the restraint. At the time of the death Adam had numerous other issues, itemised at paragraph 11 of the Defendant's Detail Grounds, on his mind, and a note he left, remarkable for its clarity of thought and expression, suggested that his decision had been formed over a period of months."

c. "5.2 While it was the Defendant's conclusion that there was no evidence that the restraint led to the death, and while that was the decision of the jury in the answers to the questions asked of them, it was a proper course for the Defendant to take, acting within his discretion, to examine the restraint in the course of the search for and the recording of the facts."

d. "6.2 The example advanced by the Claimant at paragraph 20 of her skeleton argument, concerning the administration of drugs, makes the point against her. If a drug were administrated unlawfully, and it caused death, that would be a relevant issue for an inquest, because the drug led to the death. If a drug were administered which did not cause death, there would be no inquest, only perhaps some criminal or disciplinary proceedings; here the restraint did not cause the death."

e. "12.3 The jury did investigate all relevant facts. They did not regard the restraint as a fact which caused or contributed to Adam's decision to take his life. There is no reason to suppose any other jury would reach a different conclusion."

23. There are three passages touching on the integrity of the Serco witnesses upon which the Claimant relies, the first two from the detailed grounds and the third from the Coroner's skeleton argument:

a. "18.2 It was relevant to establish whether the staff members regarded themselves as acting lawfully, or whether they believed they had a power to do what they had done; each said they did. Had they not believed they had such a power, they would have acted in the knowledge that they used force upon AR in the absence of power, and that they knew they were assaulting him. Once it was established that each genuinely believed that they had a power, whether they, or those who had trained them, were correct in law was irrelevant."

b. "18.5" Already quoted above in connection with causation.

c. "26. What might be achieved by directing the jury as to lawfulness? … 26.2 To permit the jury to assess credibility? As noted above, in circumstances where an institution may have made an honest mistake about the lawfulness of an act, and staff members have been trained that an act is lawful, a direction that the act was unlawful may confuse a jury."

And from the skeleton argument:

d. "9. Once it was established that the staff were not knowingly assaulting Adam, and that the restraint did not lead to the death, its lawfulness or otherwise lost any significance. In that context, it was right for the Defendant to weigh the matters which argued against ruling."

24. There are two extracts from the transcript of the inquest upon which the Claimant relies in connection with the question of the integrity of the YJB and its witness. The first is an exchange which occurred during Mr. Hermer's cross examination of Mr. Bowers on 17^th May 2007. The exchange was as follows:

"Counsel: Well, we are going to look at two more things before we come to whether or not you are telling the truth, Mr Bowers.

Coroner: Are you seriously suggesting that one of the directors of the Youth Justice Board…

Counsel: Yes

Coroner: Is lying to my inquest?

Counsel: Yes, yes I am and I'm going to develop that if I may.

Coroner: Well it's a very serious

Counsel: Yes, I understand that"

On the same day, but in the absence of the jury, the Coroner considered an argument over written evidence that was available from Ellie Roy, the Chief Executive of the YJB. That evidence supported the evidence given by Mr. Bowers concerning their understanding in 2004 of the legality of the restraint. In the course of exchanges with counsel for the YJB, the Coroner said this:

"… so if Mr Bowers is right in what he says, that he is representing the official line of the Youth Justice Board then that should preclude him being here on a frolic of his own, if that is the line he says the Youth Justice Board have, then I would be inclined to accept that, it's a matter for the Jury whether the Jury think there's, using one of Mr Hermer's words from yesterday, duplicity on the part of the YJB is another issue, but I would find it difficult to accept personally that the YJB would deliberately come to tell lies to me, which is what Mr. Hermer, in effect, is suggesting. It's a matter for the Jury to establish where they think the right facts lie, but I find it very difficult to go behind what the Youth Justice Board's official line today is as to what their view was then. Now, if that conflicts with anybody and everybody else, as Mr Hermer has, with great clarity, illustrated, then that is a factual matter which the Jury, I would have thought, are going to have to come to some conclusion about."

25. Mr Hermer characterised the observations made by the Coroner in respect of each of the topics identified as suggesting that he had predetermined an important issue in a way adverse to the Claimant's interests.
26. In his ruling, the Coroner emphasised that the detailed grounds were drafted on his behalf by counsel and it was counsel who had the task of placing appropriate argument before the Court. He would not necessarily have chosen the same words himself.
27. This particular point was not pressed by Mr Hough on behalf of the Coroner and, as it seems to me, with good reason. There are occasions in the course of court hearings when counsel are gripped with oratorical flights of fancy or use an unfortunate turn of phrase in developing an oral argument. A fair-minded observer would understand how that can occur and sympathise with the client who may be uncomfortable with the way his case is being presented. The same cannot be said of formal written documents placed before the court. The detailed grounds constitute the defendant's pleadings in a claim for judicial review. A defendant cannot dissociate himself from their content. In the ordinary course, they will be supported by a statement of truth from the defendant himself or someone acting on his behalf. Similarly, a skeleton argument lodged in judicial review proceedings, whilst not a pleading or statement of evidence, is a document presented on behalf of a party. In the ordinary course, one would expect a skeleton argument to be reviewed by or on behalf of a client. To the extent that such a document makes statements of fact or expresses opinions on behalf of a client, he will be associated with them in the mind of the fair observer at least to the extent that they are not publicly qualified in oral argument.
28. The Coroner made a statement in these proceedings. Mr Hough lodged a written submission, which he amplified in oral argument. Each emphasise the neutral role the Coroner intended to play. The overarching point made by the Coroner is that he would conduct the inquest in a way which would allow exploration of the points he is said to have expressed views upon (subject to further argument from the interested persons as to the scope of the inquest) and formulate questions for the jury which would allow appropriate findings of fact to be made. Additionally, discrete points are raised on each of the three aspects identified by the Claimant:

(i) It is submitted that on the question of causation the jury did not express the view, as they might have done, that the restraint had a causative effect on what followed. There was considerable textual analysis in argument of the questions left to the jury. It was Mr Hermer's submission that such analysis suggested that the questions positively discouraged the jury from expressing a view on the causation of the restraint. It is unnecessary to set out the questions or answers because Mr Hough accepted that on one reading of the questions that was so. Furthermore, the jury did not receive any direction on this aspect of causation. That is hardly surprising because the Coroner's view was that there was no evidence to support such a finding. That view was repeated in the detailed grounds and emphasised in the skeleton argument by the clear statement of the Coroner's conclusion that there was no causation. Furthermore, the assertion in the detailed grounds that the Claimant had not suggested that there was causation was not accurate.

(ii) The Coroner submits that a fair reading of the detailed grounds relating to the honesty of the Serco witnesses shows that the point being made was simply that the lawfulness of the restraint was not relevant to the factual issues at the inquest. The real issue was whether or not the staff had honestly believed that they were acting lawfully. No concluded view was being advanced on that question. In my view, that argument is difficult to sustain in the light of the language used in the extracts set out above. Whilst correct to say that the relevance of the lawfulness of the restraint was being questioned in these passages, the argument could be made only if the premise of honest belief was established. A fair-minded reader would, I conclude, believe that the Coroner has expressed a concluded view on this matter.

(iii) The Coroner does not dispute that the passages quoted concerning the YJB demonstrate his own scepticism of the suggestion that Mr Bowers was lying. Blake J was careful to say that he had no reason to doubt the honesty of Mr Bowers. In considering any piece of evidence, it is necessary to decide whether what is being said is accurate and reliable. If the conclusion is that a piece of evidence is unreliable, it may then become necessary to consider whether the witness is honest but mistaken or is deliberately misleading the Court. It is one thing to suggest to a witness that he is wrong, quite another to say that he is lying. The distinction is unlikely to be lost on experienced advocates, yet it is not inappropriate for a judge to clarify the position, given the seriousness of making such an allegation. In the extract quoted from the cross-examination of Mr Bowers, the Coroner was doing no more than that. Having established that Mr Hermer was indeed questioning the integrity of the witness, the cross-examination continued. The passage from the transcript dealing with exchanges in the absence of the jury indicates the Coroner's view that he had difficulty in accepting that the witness was lying. However, he was careful to express himself in terms that reflected his own scepticism but recognised that it was a matter for the jury. I see nothing objectionable in these extracts.

29. The fair-minded and informed observer, having considered the facts, in determining whether there was a real possibility that the tribunal was biased in the light of these features would have in mind two aspects of the coronial process. The first is that the Coroner sets the scope of the inquest. It is the Coroner who decides the issues that are to be explored at the inquest and the extent of their exploration. Secondly, it is the Coroner who decides which witnesses to call. He then calls all the witnesses and examines them. Both these features are inherent in the inquisitorial process and provide the Coroner with control of the proceedings beyond that of a judge in adversarial proceedings.
30. Mr Hough drew to my attention two decisions of Weatherup J in Northern Ireland as illustrating the application of the apparent bias test to the coronial jurisdiction in circumstances where it was suggested that there had been a pre-judgment of important issues. In the first, Hemsworth's Application [2009] NIQB 33, the Coroner had committed himself to the view that the police had played no part in the material death. Weatherup J determined that the question called for investigation. However, because the Coroner had stated his conclusions on the matter, recusal was appropriate. Conversely, in Ramsbottom's Application [2009] NIQB 55, the Judge declined to agree that the Coroner should recuse himself in circumstances where he had wrongly refused to call a particular witness on the ground that he considered the evidence irrelevant to the issues. The Judge concluded that there was no predetermination and that in the light of the court's judgment the Coroner would call the witness and examine him with an open mind. These decisions demonstrate that the question in any given case is very fact sensitive.
31. I have not found that the answer to the recusal question is 'obvious' (see AWG Group v Morrison cited above) but I am troubled by the first aspect of the suggested predetermination, and to a lesser extent by the second. The unlawful restraint of Adam Rickwood is an especially significant element in the factual circumstances surrounding his death. Whether it played a part in causing him to take his own life is of real importance. The Coroner has committed himself to a conclusion on that issue in firm terms. The question of the honestly of the Serco witnesses who asserted at the first inquest their belief in the legality of their actions (in contradiction of what had said before) is also, in the context of an Article 2 investigation into the death in custody of a child, a matter of importance. On that question too, albeit in less emphatic terms, the Coroner was committed in his detailed grounds in the earlier judicial review. The question relating to the YJB does not, for the reasons I have given, add anything.
32. The integrity of the Coroner is not in doubt for a moment. The issue is one of perception and risk viewed from the outside. I bear in mind the observations of Mummery LJ in AWG Group v Morrison about cases when the court has to predict what might happen at a hearing before the judge to whom objection is taken and to assess the real possibility of apparent bias arising. Prudence naturally leans on the side of being safe rather than sorry. In the light of my conclusions that the Coroner has expressed his decided views on causation of the restraint and the honesty of the Serco witnesses together the importance of those issues in the fresh inquest, I consider that he must recuse himself from the further investigation of Adam Rickwood's death.

Additional Factors in the bias argument

33. Mr Hermer additionally submits that the extracts from the detailed grounds and skeleton argument are indicative of the Coroner taking a full adversarial role in the judicial review proceedings before Blake J which could itself give rise to concern in the fair-minded and informed observer.
34. I am unable to accept that the fact that the Coroner took a full part in the judicial review proceedings in this case adds to the predetermination arguments. A coroner is in a difficult position when faced with a judicial review challenge. He might leave the arguments to other parties who had an interest in the inquest. It is commonplace for coroners to do just that. It is also possible for a coroner to do no more than place before the High Court any additional material relevant to the claimant's arguments which, for one reason or another, has not been included within the claim bundle. On other occasions, a ruling may be left to speak for itself. There may then be degrees of involvement in the judicial review proceedings ranging from making a statement to assist the court to full adversarial engagement.
35. In this a coroner is in a different position from a judge whose decision is under appeal. In ordinary appeals the judge takes no part in the appeal process. The structure of the Coroners Act 1988 ["the 1988 Act"] and the Coroners Rules 1984 does not provide a right of appeal from decisions of coroners. That position will change with respect to many decisions when the new system established by the Coroners and Justice Act 2009, in due course, comes into being. In the meantime, coroners will continue to face applications for judicial review in which they are the defendants. There is undoubtedly a danger that a coroner's involvement in resisting a judicial review challenge might give rise to concern in the fair-minded observer that an interested person and the coroner are no longer in the relationship of 'litigant' and 'judge' but have become genuine protagonists, or that animosity has developed. As Sir Anthony Clarke MR observed in Howell v Millais [2007] EWCA Civ 720 at paragraph [9], whilst the mere fact that a judge has decided a case adversely to a party or criticised the conduct of the party or his lawyers will rarely if ever be a ground for recusal, a real danger of bias might be thought to arise if there were evidence of animosity. In the coronial context the position is analogous with cases where a coroner has said something seriously derogatory of an interested person (eg R v Inner West London Coroner ex parte Dallaglio [1994] 4 All ER 139) or whose correspondence had become inappropriately combative (eg R (Butler) v HM Coroner for the Black Country District [2010] EWHC 43 (Admin)). However, the judgment of Blake J does not suggest that the involvement of the Coroner in the judicial review proceedings was inappropriately combative. The judge had considerable sympathy with the position in which the Coroner found himself when dealing with conflicting submissions on both the question of the legality of the restraint and then whether he should rule on the position. He did not voice criticism of the way in which the Coroner conducted the judicial review proceedings.
36. Although not pressed in oral argument, the grounds contained a number of additional points which deserve mention. The Coroner, a solicitor, instructed counsel in the judicial review proceedings through his own firm. He was client and instructing solicitor. He attended the hearing before Blake J in both capacities and was seen by the Claimant actively to be giving his counsel instructions. It was suggested that these aspects of his involvement in the judicial review proceedings (quite apart from his opposition to the claim) gave rise to an appearance of bias. It was also suggested that the fact that the Coroner was ordered to pay 40% of the Claimant's costs of those proceedings was indicative of a measure of judicial disapproval of his conduct which provided added support for the bias argument.
37. There is no substance in these additional points. The fair-minded and informed observer would appreciate that in a large number of cases involving coroners they either instruct counsel through their own firms of solicitors or do so directly. It is often the most convenient and cost-effective way of instructing counsel and is unremarkable. The fair-minded and informed observer would also appreciate that, whether as lay or professional client, it is normal to give counsel instructions, including providing information in the course of a hearing. Similarly, the fact that the Coroner was ordered to make a contribution towards the Claimant's costs says nothing about his conduct beyond the fact that he took an adversarial role in the proceedings. There was a time when it was widely thought that a Coroner would not be vulnerable to an adverse costs order in judicial review proceedings unless his conduct called for critical comment. However, the question of costs in such proceedings was reviewed by Brooke LJ in R (Davies) v Birmingham Deputy Coroner (CA) [2004] 1 WLR 2739. The result was that where a coroner appeared neutrally to assist the court, he would not be ordered to pay the costs if the challenge was successful. However, if a coroner actively sought to resist the judicial review application and lost, he was likely to be ordered to pay the costs of the successful party in the same way as other litigants. The fact that there was an order for costs does not, without more, say anything about potential bias. Mr Hermer did not contend that the fact that the Coroner had lost the judicial review claim was itself a factor tending to suggest potential bias for the future. He did not seek to dispute the conclusions of Hart J in Re Jordan's Application [2009] NIQB 76 at paragraph [56]:

"An error of law or a wrong decision on the facts without more is not indicative of either apparent bias or substantive bias. The law presumes that coroners, like other judicial officers, will apply the law in a fair and even-handed way. However, the law does not presume that every judicial officer of whatever rank is incapable of falling into error, and appellate courts frequently make orders reversing procedural or substantive decisions made by lower courts and tribunals, and then remitting the case to that court or tribunal to proceed with the matter in accordance with the ruling of the appellate court. In doing so, the law presumes that the judge or judicial officer concerned can be relied upon to proceed in accordance with the direction of the superior court."

I would respectfully endorse those observations.

The New Coroner

38. The Claimant has retreated from the bold argument that, irrespective of the question of apparent bias, it would be unlawful for the Coroner to conduct the fresh inquest himself. The foundation for that submission had been that the nature of the inquest, its potential difficulty and controversial nature dictated as a matter of law that the Coroner should divest himself of his statutory duty and delegate his authority to an ad hoc appointee. That delegate might be a serving or retired 'senior judge'. The argument was bolstered by the proposition that because the Coroner made the errors of law identified by Blake J, it was at least preferable that another should conduct the inquest and that other should be a 'senior judge'.
39. The Claimant now seeks an indication from the Court that a person of particular standing should be invited to assume the conduct of the fresh inquest. That is in the hope that it will encourage those who are concerned in identifying and funding an assistant deputy coroner to conduct the fresh inquest to seek out such a person.
40. The burdens on coroners have increased substantially in recent years. In particular, inquests have become more complicated and lengthy. That is especially so when the coroner is discharging the State's obligation under Article 2 ECHR to conduct a full and independent inquiry into deaths in custody, or for which the State may bear some responsibility. For some time it has been suggested that the burdens of a small number of exceptional inquests should result in the use of other judges to conduct them. In Death Certification and Investigation in England, Wales and Northern Ireland, The Report of a Fundamental Review 2003 (Cm 5831) (Chairman: Tom Luce), the question of using judicial manpower to conduct a small number of difficult inquests was considered. Chapter 9, paragraph 8(c) recommended as follows:

'[A] small number of exceptionally complex or contentious inquests should be taken by suitably trained Circuit Judges, and a yet smaller number of still more complex inquests should be heard by suitably prepared High Court Judges, each sitting as Coroner. This provision, too, should be sparingly used.

Allocation of inquests at Circuit Judge level would be arranged by the Presiding Judge of the relevant Circuit on application from the Regional Co-ordinating Coroner. Inquests at the High Court level might largely be confined to those following disasters with multiple deaths, though we do not exclude other cases where appropriate. They would be arranged by the Chief Coroner in liaison with the Presiding Judges of the Circuits on application from the Regional Co-ordinating Coroner.'

41. In Sharman v HM Coroner for Inner London North [2005] EWCA Civ 967, a case concerned with a police shooting, Buxton LJ quoted these observations made by Leveson J at first instance:

"Counsel all complimented the coroner on the fair and considerate way in which he conducted this inquest but it is a matter of the greatest concern that four months short of five years following this tragic incident, I have now felt driven to quash the verdict in a second inquest. Mr Stanley's family have had to live through two such inquests and two applications for judicial review (the first brought by them, the second by one of the police officers); the uncertainty itself must have seriously aggravated their difficulties. The same point can be made in respect of the officers.

This was always going to be a highly sensitive and difficult inquest to conduct. All deserved better from the system and it is sufficient if I add my weight to the call to implement the change recommended by the Fundamental Review. Without any disrespect to the coroner, this extremely difficult case would have benefited from judicial oversight at a higher level.

Buxton LJ then added:

The task that the coroner faced in this case, dealing with a technical point of English criminal law that has exercised the leading authorities in that subject, underlines that he should not have been asked to deal with this difficult case. It merited the attention of somebody more regularly familiar with the issues in hand."

42. The recommendations of the Fundamental Review were not implemented directly. However, the Coroners and Justice Act 2009, which makes profound changes to the coronial jurisdiction, deals with the issue. A Chief Coroner, who will be a High Court Judge, will head the Coroners Service. He will have a Deputy. There will be Senior Coroners and Area Coroners. The Chief Coroner may himself conduct an investigation. The Chief Coroner will be able to invite the Lord Chief Justice to nominate a High Court Judge, a Circuit Judge or certain retired judges to conduct specific investigations. The Chief Coroner will also have power to request retired Senior Coroners to conduct investigations. These powers are contained within Schedule 10 to that Act. The current expectation is that the new system will become operational in 2012. No doubt, in due time, parameters for the exercise of these powers will be established by practice. Nonetheless, it is clear that the normal expectation will be that a coroner will conduct an inquest, even those which may be difficult or noteworthy for some reason.
43. The position for now continues to be governed by the 1988 Act.
44. Section 5(1) of the 1988 Act confers jurisdiction upon the coroner for a district to conduct inquests into deaths of individuals whose bodies lie within his district. That exclusive jurisdiction of the coroner is subject only to a number of statutory exceptions set out in the 1988 Act. Those statutory exceptions include the circumstances in which a deputy or assistant deputy coroner may be appointed and exercise the functions of the coroner (see sections 6 and 7). Those circumstances include a coroner's absence for a 'lawful or reasonable' cause. There was an historical concern that the word 'absence' connoted a physical absence from the jurisdiction. If the statutory provisions were so limited it would be very difficult indeed to use an ad hoc for a particular inquest. However, in Commissioner of Police for the Metropolis v HM Coroner for Inner London South [2003] 1 WLR 371 the Divisional Court (Kennedy LJ and Pitchers J) confirmed that the term 'absence' was not to be construed narrowly but rather meant absence from the particular inquest, for reasonable cause. That case concerned the application for a fresh inquest into the New Cross Fire which had occurred in January 1981 which was subsequently conducted by His Honour Gerald Butler QC.
45. Ad hoc deputy or assistant deputy coroners have been appointed to conduct a number of exceptional and high profile inquests. The appointment of serving and retired judges to conduct inquests, whilst uncommon, now has a clear track record. For example, the inquests into the deaths which occurred in the terrorist bombings on 7 July 2005 are to be conducted by Hallett LJ. The Potters Bar railway accident inquests are to be heard before Judge Michael Findlay Baker QC. The inquests into the deaths of Dodi Al Fayed and Diana, Princess of Wales were conducted by Scott Baker LJ. The de Menezez inquest was conducted by Sir Michael Wright. The late Sir Richard Rougier and Sir Christopher Pitchers, both retired High Court Judges, have conducted inquests. As already noted, His Honour Richard Pollard, a retired Circuit Judge, conducted the inquest into the death of Gareth Myatt, who died at Rainsbrook STC.
46. In each of these cases the coroner concerned sought to appoint an ad hoc deputy or assistant deputy. It is a statutory requirement for the appointment of a deputy or assistant deputy coroner that the chairman of the relevant local authority approve the appointment (see section 6 of the 1988 Act). Such appointments bring financial consequences with them. Ad hoc appointees who are retired or in private practice must be paid. The release of a serving judge may be agreed only if the local authority pay the Ministry of Justice the costs involved. Only very rarely has the cost of an ad hoc appointment been met from central government, as opposed to local authority, funds. Financial considerations will inevitably play a part in deciding whether to make such appointments and who to appoint. Furthermore, serving judges are released in these circumstances only very rarely because the pressure of judicial business is such that there is no spare capacity.
47. By contrast, there are countless long and difficult inquests that are conducted by the coroner for the district concerned. Deaths in custody form a significant proportion of such cases. The tables below set out the latest figures available from the Ministry of Justice for deaths in custody:

1. Table 1: Self-inflicted deaths in prison custody (England and Wales) by gender

Gender	Male	Female	Total	Population	Rate/100k
1996	62	3	65	55256	118
1997	65	3	68	61467	111
1998	80	3	83	65727	126
1999	86	5	91	64529	141
2000	73	8	81	65194	124
2001	67	6	73	66403	110
2002	86	9	95	71218	133
2003	81	14	95	73657	128
2004	82	13	95	74488	128
2005	74	4	78	76190	102
2006	64	3	67	77962	86
2007	84	8	92	80689	114
2008	59	1	60	83240	73
2009	57	3	60	83611	72

2. Table 2: Self-inflicted deaths in prison custody (England and Wales) by age band

Age band	Under 18s	18-20	21+	Total
1996	1	11	53	65
1997	1	8	59	68
1998	3	11	69	83
1999	2	13	76	91
2000	3	13	65	81
2001	3	10	60	73
2002	2	12	81	95
2003	0	12	83	94
2004	0	6	89	95
2005	2	10	66	78
2006	0	2	65	67
2007	1	6	85	92
2008	0	5	55	60
2009	0	5	55	60

Self-inflicted deaths amongst those under 18 are mercifully rare, those of young adults relatively uncommon but of adults unfortunately frequent. Save in isolated cases, coroners have conducted the resulting inquests.

48. Inquests into the deaths of service personnel abroad have also given rise to long and difficult inquests which have attained a high profile. They have been conducted by coroners and their deputies without recourse to senior judicial figures. So too was the long and complex fresh inquest into the death of a serviceman at Porton Down in 1953.
49. The free-standing claim as originally formulated involved the proposition that it was irrational in a public law sense for the Coroner to refuse to absent himself for the purpose of this inquest and seek the appointment of a deputy. That was an impossible proposition. The coroner for a district carries the statutory duty to conduct inquests where the obligation to hold them arises under section 8 of the 1988 Act. He is appointed for that purpose. It cannot be Wednesbury unreasonable for an office holder to perform a duty imposed on him by statute, even if it is open to him to make arrangements for a deputy to do so, on the basis that the function is difficult, time consuming, high profile or controversial. There may be many reasons why a coroner would wish to engage a deputy of a particular sort, but he cannot be required to do so for these reasons. The Coroner, on his own behalf and speaking for other coroners and their local authorities, has noted that he and his colleagues face increasingly frequent requests for the appointment of ad hoc deputies to conduct specific inquests. There is concern that adverse decisions might be the subject of challenge by way of judicial review. Applications for judicial review of such an adverse decision would be inappropriate.
50. Turning to the instant case, the fresh inquest will now have to be conducted by a deputy or assistant deputy coroner. In the course of his ruling, the Coroner indicated that in the event that he were unable to conduct the second inquest, he would not ask his current Deputy or Assistant Deputy to do so in his place. It became apparent in the course of argument before me that there was no real issue of principle between the Coroner and the Claimant about the qualities required of an ad hoc deputy as will now be required. The person concerned must have the judicial qualities necessary to conduct a difficult inquest that will last a number of weeks culminating in a careful summing up and the formulation of appropriate questions for the jury. He will need to establish the scope of the inquest and rule on any matters of law as they arise. Mr Hermer QC suggests that such a person should be a serving or retired 'senior judge': by that I understand him to suggest the appointment of a judge from the circuit bench or High Court. Mr Hough contends that no such prescriptive indication should be given by this Court. An appropriate ad hoc deputy might well be found in such a cohort but there are many practitioners who might be suitable as might serving or retired coroners with relevant experience.
51. Mr Hermer QC points to the length, sensitivity and potential difficulty of the inquest as justifying senior judicial manpower.
52. In anticipation of the hearing, the Coroner wrote to the Head of Current Coroner Policy at the Ministry of Justice to sound out the possibility of securing a judge (or retired judge) as a deputy. In her reply, Judith Bernstein indicated that the case for such an appointment appeared to be reasonably strong but added that the appointee need not be a judge but might be an experienced coroner or recently retired coroner.
53. Blake J commented that Adam Rickwood was the youngest person in modern times to take his own life whilst in custody. It has now been established that he was unlawfully restrained about 6 hours before his death. There is evidence that the unlawful restraint was not an isolated incident but systemic. There are question marks over the extent to which statutory agencies were aware of what was going on. All of these factors lead me to observe that it would be asking a great deal of those who sit as part-time coroners for a few weeks a year, often undertaking the less difficult cases, to assume responsibility for this fresh inquest. An individual with significant experience of conducting long and difficult cases would undoubtedly be well suited for the role. Whilst such a person could be found from the ranks of the serving and retired senior judiciary, the pool is not so limited. There are likely to be practitioners and other coroners who are well able to conduct the inquest. It will be for the Coroner to seek to identify an appropriate candidate, secure his or her agreement and obtain the statutory approval of his chairman. To the extent that it is appropriate at all to comment upon a matter that is for the Coroner, in consultation with his local authority and perhaps the Ministry of Justice, it seems to me that the observations of Judith Bernstein that I have summarised encapsulate the position perfectly. In seeking a deputy or assistant deputy to take over the conduct of the investigation into the death of Adam Rickwood, an individual with sufficient relevant experience for the task in hand will be found. Such a person might be found within the ranks of the serving or retired judiciary but might also hail from the ranks of practitioners and serving or retired coroners.

Conclusion

54. I have concluded that the Coroner should recuse himself from the fresh inquest proceedings. It is regrettable that the arguments raised in these proceedings were not placed before Blake J where the issue could have been conveniently determined in the earlier judicial review proceedings, as is normally the practice. The Coroner has indicated that he will not invite his established Deputy or Assistant Deputy to conduct the fresh inquest but instead will seek an ad hoc appointee. The Coroner perhaps more than anybody is alive to the difficulties and sensitivities involved. He has indicated that he will take those factors into account in seeking to identify a suitably qualified person to conduct the fresh inquest. That is a sensible course which, to the extent that it is appropriate to do so at all, I endorse.