No fiat, no inquest - what next?

Providers involved in healthcare inquests will be familiar with cases involving applications to the Attorney General – a fiat – to quash an inquest decision and order a fresh investigation and inquest under section 13 of the Coroner’s Act 1988. What happens then if the Attorney General refuses your application – can you judicially review the decision?

This was the issue that the court in R (Campbell) v HM Attorney General had to consider finding that the Attorney General’s decision cannot be challenged in judicial review proceedings.

Briefly, Geoffrey Campbell was unlawfully killed in the World Trade Centre on 11 September 2001. In January 2013, the Senior Coroner for West London held an inquest and found that he was killed when “an airplane was deliberately flown into the building, causing its collapse…The event was part of a coordinated attack by the Islamist militant militia group al Qaeda”.

The claimant, who is Mr Campbell’s brother, disputes that the building collapsed as a result of the aircraft’s impact. Instead, he proposes an alternative hypothesis, suggesting that pre-planted explosives or incendiaries were responsible for the collapse. He relies on fresh evidence that wasn’t previously available to the Senior Coroner at the first inquest.

The claimant’s request for a fiat was refused by the Attorney General in 2024 on the basis that the cause of the collapse of the buildings had already been adequately investigated in the US. The consensus view was that there was no realistic possibility of any cause other than the impact of the aircraft. The claimant’s hypothesis was therefore “fanciful” and “simply not credible”. Reference was also made to the “long-standing principle outlined in Gouriet v Union of Post Office Workers 1978 that the exercise of the Law Officers’ discretion in public interest functions is absolute, and non-reviewable”.

Grounds of challenge

Five grounds of challenge were raised against the Attorney General:

• Erred in law as to the test to be applied to the question whether a new investigation was in the interests of justice
• The decision was irrational in light of the fresh evidence
• There was a failure to give adequate reasons
• That the finding of a “clear consensus view” about what happened on 11 September 2001 was unreasonable
• That it was unreasonable to categorise the claimant’s hypothesis as “fanciful”

Given the volume of evidence and the judicial resources required to consider whether any of the grounds were arguable, the court ordered that a prior determination of permission to apply for judicial review take place to consider whether the Attorney General’s decision was capable of further legal challenge. 

The decision

The court concluded that the challenged decision was not justiciable – and not open to challenge on any of the pleaded grounds -  and so it refused permission to apply for judicial review.

In order to avoid the potential for yet further appeals, the Divisional Court covered off the circumstances in which any review might be permissible:

“If, contrary to our view, decisions of the Attorney General to refuse consent under s.13(1) of the 1988 Act are justiciable at all… we would hold that the grounds on which they are subject to review are limited to “dishonesty or mala fides or an exceptional circumstance”: …Although in this case we have not reached the stage of considering the merits of the claim for judicial review they do not involve any allegation of dishonesty or mala fides. Nor, in our judgment, do the grounds allege anything that could be described as an “exceptional circumstance. Accordingly, even if we had reached a different view about the justiciability in principle of decisions of this kind, the decision is not open to challenge on any of the pleaded grounds.”

Do contact Neil Ward if you’d like support with an inquest – we have an expert and friendly team ready to help.