BEIS White Paper on Audit Reform: Will Kwarteng's reforms really unchain entrepreneurs?
The decision of Mr Justice Holroyde in R oao Donald Maguire and ors v The Assistant Coroner for West Yorkshire (Eastern Area)  EWHC 2039 provides a salutary reminder of just how difficult it is successfully to judicially review the ‘case management’ decisions of a coroner – in this case a decision as to which witnesses to call at an inquest – and of the costs risks of bringing such a challenge.
The case arose in relation to the inquest into the death of Mrs Ann Maguire, a school teacher who in 2014 was brutally murdered in a classroom at her school by one of her pupils, William Cornick. The inquest into Mrs Maguire’s death was opened and then suspended pending the prosecution of William Cornick (who pleaded guilty to murder). The inquest was then resumed and there were a series of pre inquest hearings leading up to a hearing on 13 January 2017 at which the Assistant District Coroner decided that there would be no oral evidence at the inquest from former pupils at the school who had had contact with William Cornick in the period leading up to the murder of Mrs Maguire. It was this decision that was challenged in the judicial review proceedings.
The background to the Assistant District Coroner’s decision was that, during the police investigation into the murder, nine pupils who knew William Cornick, and could speak of what he said and did before the murder, were carefully interviewed using the Achieving Best Evidence procedures best suited to interviewing young witnesses. The general tenor of their evidence in those interviews seems to have been that at times Cornick behaved strangely, including making sick jokes and expressing a wish to kill Mrs Maguire and other teachers; that on the Friday before the murder, Cornick had spoken several times of killing Mrs Maguire during a lesson that was to take place on the following Monday; and, on that Monday, Cornick had repeated the threats and spoken of having knives or sharp implements in his bag. Most of the pupils explained that they had not taken Cornick’s remarks seriously but one who did and who confronted Cornick was intimidated by him and so did not report him to a teacher. One pupil did report Cornick’s behaviour to a teacher but this was just after Mrs Maguire had been killed. The Assistant District Coroner’s decision was that, rather than calling these pupils (or others who had not been interviewed by the police), it would be sufficient of the purposes of the inquest to use relevant extracts from the transcripts of these interviews.
In the judicial review, it was accepted that the Assistant District Coroner’s decision not to call the former pupils as witnesses could only be challenged on grounds of Wednesbury unreasonableness, a notoriously high threshold for claimants to meet. Mr Justice Holroyde expressed it in this way: “The test may be summed up by saying a party who seeks to challenge a decision by a coroner must show that the coroner acted in a way which was not reasonably open to him or her, and made a decision which could not reasonably be reached”.
In deciding not to call any of the former pupils to give evidence, the Assistant District Coroner had, in essence, had to balance two things: the risk of harm to the former pupils (the concern being that in answering questions at the inquest the former pupils, despite this being nobody’s intention, would feel that they had been at fault in not “whistleblowing”, which ran the risk of exacerbating the trauma that they had already experienced); and, as against this, the potential value of their evidence to the matters to be considered at the inquest. In respect of the matters to be considered at the inquest, one issue that was of particular – and understandable – importance to those members of Mrs Maguire’s family who brought the claim was to ensure that lessons could be learned so as to minimise the risk of any similar event happening in the future. As part of that they considered that it would be important for the Assistant District Coroner to know what the pupils understood to be the school’s rules relating to weapons in school and whistleblowing. The Assistant District Coroner did consider this and determined that the benefit of the evidence of the former pupils on this would be “small”.
Applying the Wednesbury test, Mr Justice Holroyde upheld the Assistant District Coroner’s decision –
“There were arguments both for and against calling the interviewed pupils as witnesses, and there was room for different views as to how the balance should be struck; but the Assistant District Coroner took the relevant matters into account, and it is in my judgment impossible to say that his conclusion was not one which was properly open to him.”
As a result, the judicial review claim was dismissed and the judge went on to order the claimants to pay the Assistant District Coroner’s costs, notwithstanding that he expressly accepted and understood the claimants’ reasons for wanting the former pupils to give evidence. In making his decision on costs, Mr Justice Holroyde accepted the submission that the claimants “are in no different position from any others who bring unsuccessful claims arising out of tragic circumstances”.
The decision serves as a good illustration of an orthodox application of judicial review principles in the context of an inquest and also, as a consequence, of the obstacle standing in the way of claimants – even in a case like this where the judge clearly sympathised with their position - of successfully bringing a challenge.
The Administrative Court of England & Wales has recently considered a challenge to its jurisdiction to hear a judicial review claim on the basis (asserted by the defendant) that the claim should be heard at the Court of Session in Scotland. As explained below, the challenge was unsuccessful, but the case is interesting not just because of the Court’s conclusion on the substantive issue but also because of His Honour Judge Simon’s approach to the “technical” (procedural) issues the case gave rise to.
Earlier this year, changes to Practice Direction 54A (covering judicial review) and 54B (covering urgent applications) came into effect. This blog will consider the impact that the changes have had on the procedure for judicial review, before turning to a recent example of the perils of failing to follow the rules.
The Judicial Review and Courts Bill contains a new ‘ouster clause’ designed to prevent judicial review of the Upper Tribunal’s decisions on certain applications for permission to appeal against decisions of the First-Tier Tribunal. This blog explores why drafting legislation to restrict judicial review is so difficult.
R (A) v Secretary of State for the Home Department  UKSC 37 and R (BF (Eritrea) v Secretary of State for the Home Department  UKSC 38
Two linked Supreme Court judgments provide a reminder to claimants that challenges to policies should focus on whether the policies authorise or approve violations of the law. The court acknowledges that policies are issued to promote practical objectives and the standards set for reviewing them must not be unduly demanding.
Long awaited reforms to judicial review were revealed yesterday by Robert Buckland in his Judicial Review and Courts Bill. Thankfully the proposals to suspend quashing orders and limit their retrospective effect retain all-important judicial discretion and, at face value, are milder than feared. However, the decision to exclude the review of Upper Tribunal permission-to-appeal decisions (so called “Cart JRs”) is more troubling, marking the return of ouster clauses and possibly setting the groundwork for the removal of the jurisdiction of the Administrative Court in future legislation.
On 18 March 2021 the government published the Independent Review of Administrative Law (IRAL) and began a public consultation on reforms to judicial review. This blog provides some initial thoughts on these important developments. For background on the IRAL see our introductory blog here.
This morning (12 February 2021) the UK Supreme Court handed down judgment in Okpabi & others v Royal Dutch Shell (“Okpabi”), a case concerning mass oil pollution in the Niger Delta. Judgment is in favour of the claimants, communities representing over 40,000 affected citizens of Nigeria, whose claim against oil conglomerate Shell and its Nigerian subsidiary can now be heard in the English courts.
On 31 July 2020 the Government launched an Independent Review of Administrative Law (‘the Review’). The panel of lawyers and academics, chaired by former Minister of State for Civil Justice Lord Edward Faulks QC (‘the Panel’), has been tasked with examining the potential need for reform of Judicial Review and to ‘consider whether the right balance is being struck between the rights of citizens to challenge executive decisions and the need for effective and efficient government.’
The Bloomsbury Institute was fighting to survive financially after the Office for Students refused its application for registration. It brought a judicial review challenge which revealed that an unpublished policy had been followed. The policy had been formulated by an official who did not have the power to make the relevant decisions.
In a February 2019 Advisory Opinion, the International Court of Justice stated that, under international law, the decolonisation of Mauritius by the UK has never been lawfully completed and the UK must therefore “end its administration” of the Chagos islands.
Interpreting legislation is both an art and a science. This recent Court of Appeal case illustrates how judges do it in the context of the statutory scheme used to introduce controversial voter ID pilot schemes.
Inquest proceedings, like other legal proceedings in the UK, have been significantly affected by social distancing restrictions and advice arising from the COVID-19 crisis. This blog looks briefly at the impact of the Coronavirus Act 2020 on proceedings, and examines the Chief Coroner’s guidance notes to coroners working during the crisis.
Even if it is generally more straightforward for the claimant to be a legal person, this judgment may give confidence to the likes of amateur sports clubs and campaigning pressure groups considering challenging the exercise of public power.
Friday 13 December 2019 will be remembered as the day the Conservatives won their biggest majority since the 1980s and finally obtained the dominance required to complete the Article 50 process and take the UK out of the EU.
Everyone has an opinion on yesterday’s decision of the UK Supreme Court. Boris Johnson said on television that he profoundly disagreed with it. Jacob Rees-Mogg reportedly called it a ‘constitutional coup’ on a cabinet conference call. Former Lord Chancellor Michael Gove was distinctly equivocal about it when interviewed on the Today programme. Laura Kuenssberg reported on Twitter that a No 10 source said ‘the Supreme Court is wrong and has made a serious mistake in extending its reach into these political matters’. The fact these people all claim they will still ‘respect’ the decision does not detract from the corrosiveness of their sentiments.
The prorogation judicial reviews concerned the constitutional equilibrium between government, parliament and the courts. Today, an 11 member UK Supreme Court panel affirmed its centuries-old supervisory jurisdiction over acts of government and ruled unanimously that Boris Johnson’s government failed to advance any reasonable justification for proroguing parliament. The prorogation was therefore unlawful and ‘never happened’ so parliament is back in the game.
Scotland’s highest court and a senior divisional court of the High Court in England and Wales have reached opposite conclusions about whether the recent decision to prorogue parliament was lawful.
Monday night’s marathon session in Parliament saw a number of issues debated into the small hours and further defeats for the government. While many raised important political and legal issues, one of particular interest to information lawyers, followers of Parliamentary procedure and journalists alike was the endorsement of a “Humble Address” motion brought by former Attorney General, Dominic Grieve.
Inquests are always very sad affairs, and when the court is considering a suicide, it is particularly difficult for the loved ones of the person who has died.
On 24 July 2019, the High Court handed down judgment in R (on the application of Independent Workers Union Of Great Britain and others) v Mayor Of London  EWHC 1997 (Admin). This case related to the decision in December 2018 by the Mayor of London to remove an exemption and require private hire vehicles (“PHV”) to pay the Congestion Charge from 8 April 2019
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