Within the recent case of ‘An application by Patricia Downey for Judicial Review’ [2022] NICA 67, the Court of Appeal in Northern Ireland determined that a Coroner had demonstrated bias and prematurely predetermined the engagement of Article 2 before the commencement of an inquest.
Background
By way of background, Ms Downey’s daughter died in 2017 and a decision was made not to hold an inquest into the death. Ms Downey challenged the decision and the Attorney General reopened the matter citing obligations under Article 2 (Right to Life) of the European Convention on Human Rights.
Within the pre-inquest reviews, the Coroner indicated that Article 2 was not engaged despite the Attorney General having provided written submissions to the contrary. The Coroner agreed to receive written submissions on the applicability of Article 2 from the parties and Ms Downey notified the Coroner that funding for such submissions was pending a decision from the Legal Services Agency Northern Ireland (‘LSA’). When the LSA submitted a questionnaire to the Coroner querying whether it would assist him for the family to be represented, the Coroner responded directly stating “This is not an Article 2 ECHR inquest…” and the “family would be able to effectively participate without legal representation”.
Decision
An application was made for the Coroner to recuse himself on the grounds of bias but he refused, and the High Court of Justice in Northern Ireland agreed. On appeal to the Court of Appeal in Northern Ireland, the Court expressed their concern regarding the Coroner’s attitude and determined that he should have recused himself on the grounds of bias. In particular, the Court opined that “the Coroner took the uninvited and unnecessary step of expressing in absolute and unqualified terms that “this is not an Article 2 ECHR inquest” even though he knew that this was a critical matter in dispute, upon which he had yet to receive submissions from the next of kin and in respect of which there had yet to be a hearing to determine the point”. The Court went on to determine that “the fair-minded and informed observer, appraised of all the relevant facts and circumstances, would conclude that there was a real possibility that the decision-maker had predetermined the Article 2 issue”.
Commentary
This decision clearly acts as a warning to Coroners, and decision-makers in general not to predetermine a matter, whether publicly or privately, before proceedings have started. This case also highlights the requirement for decision makers to possess the necessary insight into their conduct and to recuse themselves at the earliest available opportunity where required.
