R (Campbell) v HM Attorney General of England and Wales [2025] EWHC 1653 (Admin) 1 July 2025 (judgment here)
Anyone wanting the High Court to quash a finding made at an inquest and order a fresh investigation and inquest under s.13 of the Coroners Act 1988 will need the approval (a fiat) of the Attorney General to proceed with their claim. What then is the position if the Attorney General refuses to give that approval? is that the end of the road? or can the Attorney General’s refusal be challenged by judicial review?
This was the question a Divisional Court bench[1] grappled with in this factually rather remarkable case. The judgment deals only with the preliminary issue of the justiciability of a decision of the Attorney General to refuse his authority to bring an application under s.13(1)(b) of the Coroners Act 1988 (it only lightly touches on the merits of the application itself). The court’s judgment takes us on an interesting historical journey through the Attorney General’s gatekeeping function in a variety of settings. At the end you will hear that gate clang shut on the Claimant: the refusal of a fiat is not judicially reviewable [2]. However, your blogger suspects there may be another instalment to come, and so that clanging gate may not yet be firmly locked and bolted.
Background
The Claimant’s brother had died when the World Trade Centre North Tower collapsed in New York in 2001. At an inquest held in 2013 the Senior Coroner found that Mr Campbell had been unlawfully 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 did not accept that the Tower had collapsed because of the impact of an aircraft. Relying on fresh evidence not made available to the Senior Coroner at the first inquest his alternative position was that the collapse was caused by the detonation of pre-planted explosives or incendiaries.
The Claimant’s request for a fiat to bring his claim for a new inquest to be held was refused by the Attorney General in 2024. The Attorney General considered that the cause of the collapse of the Twin Towers had already been adequately investigated in the United States. The clear consensus view was that there was no realistic possibility of any cause being established other than the impact of the aircraft. The Claimant’s hypothesis was, said the Attorney General, “fanciful” and “simply not credible”. As a primary line of defence of the claim the Attorney General relied upon the long-standing principle outlined in Gouriet v Union of Post Office Workers[3] that “the exercise of the Law Officers’ discretion in public interest functions is absolute, and non-reviewable.”
The Attorney General’s role
The role of the Attorney General, can be traced back to the thirteenth century with the title in use since at least 1461. In modern times, the Attorney General has executive functions superintending the Government Legal Department, the Crown Prosecution Service and the Serious Fraud Office. He shares with the Ministry of Justice and Home Office ministerial responsibility for criminal justice. Separately, he is the principal legal advisor to the Crown and in this capacity, he advises the Sovereign, the Cabinet, Government departments, individual ministers and Parliament, and may act in legal proceedings on their behalf. In addition, he has what are termed “public interest functions”, in relation to both criminal and civil law some arising under the Royal prerogative, others conferred by statute.
The power conferred by s.13(1) of the 1988 Coroners Act in relation to gatekeeping all applications for a fresh inquest (or for an inquest to be held), is one of the Attorney General’s civil law public interest functions. A s.13 claim cannot be brought without the agreement of the Attorney General. The reason for having such a filter is that the public interest might be damaged if the proceedings in question could be brought by private individuals without any filter. In a case where an inquest has already been conducted, the filter promotes the public interest in legal certainty.
Justiciability
In the earlier case of Gouriet a private citizen had sought to bring proceedings against a union for an injunction to restrain a threatened breach of the criminal law. The consent of the Attorney General to bring these relator proceedings was required and was refused. Mr Gouriet sought a declaration against the Attorney General that he had acted improperly in refusing his consent. The question whether the Attorney General’s refusal was judicially reviewable came before the Court of Appeal[4] where the majority said it was not:
“The Attorney-General’s discretion is not subject to review by the court, he is not answerable to the court in this respect, and like everyone else, he cannot be compelled to act as a plaintiff against his wish. There is, therefore, no clash or conflict in this respect between Parliament and the court or between the court and the Attorney-General.”
When the case proceeded to the House of Lords they were of the same view. Their Lordships considered that for the courts to judicially review the Attorney General’s decisions would amount to the courts wrongly stepping into a political arena:
“the courts have no jurisdiction to review the Attorney General’s decision in either a civil or criminal case… If the Attorney-General were to commit a serious error of judgment by withholding consent to relator proceedings in a case where he ought to have given it, the remedy must in my opinion lie in the political field by enforcing his responsibility to Parliament and not in the legal field through the courts.
That is appropriate because his error would not be an error of law but would be one of political judgment, using the expression of course not in a party sense but in the sense of weighing the relative importance of different aspects of the public interest. Such matters are not appropriate for decision in the courts.”
This principle was subsequently followed in respect of a refusal of authority to seek a new inquest under s.13(1) of the 1988 Act in R v Attorney General ex p. Ferrante[5] . In that case Popplewell J had considered himself bound by Gouriet saying that “if the principle in Gouriet is now to be treated as no longer good law in relation to the Attorney General’s powers it must be for a higher court than me so to say so”. And of course a higher court was never asked …
Similarly, in R (Halpin) v Attorney General[6] when Nicol J refused permission to apply for judicial review of a decision to refuse consent under s.13 of the 1988 Act for a new inquest into the death of Dr David Kelly, the Judge remarked upon the “unattractive position” of the AG being non-reviewable when he said this (before going on to refuse permission on other grounds):
“If, hypothetically, there were substantial grounds for considering that the Attorney had acted unlawfully in refusing his consent, it would be an unattractive position, to put it neutrally, if that illegality was beyond the power of the courts to judicially review. I was grateful therefore for [counsel for the Attorney General] turning to the merits of the case.”
Ex p. Taylor was another application for judicial review of the Attorney General which challenged a refusal of consent for proceedings under a statutory power with strong similarities to that conferred by s. 13(1) of the 1988 Act.[7] Both statutory provisions were enacted after Gouriet (which had been decided in 1978). The court noting that the Attorney General’s immunity arose because of the unique constitutional position of the Attorney General, that the immunity extends to functions conferred by statute as well as ones arising under the prerogative and the re-enactment of the power after Gouriet was significant, because Parliament could be assumed to have legislated on the basis of the principles set out there.
Ex p. Taylor was a judgment of the Divisional Court and so although the court in this present case was not bound by it, it was obliged by judicial comity to follow it unless “convinced” that it was wrong. It will only be in rare cases that a Divisional Court will depart from a previous judgment of another Divisional Court,[8] and here the court was not convinced that the earlier court had been wrong. On the contrary, ex p. Taylor confirmed the view that under the law as it presently stands, Gouriet should be followed and the decision of the Attorney General was immune from review on any ground.
Against that background it can be no surprise that the Claimant’s application failed on this preliminary point, the combined effect of the earlier authorities was that it was not open to any court below the Supreme Court to decide otherwise.
Is the gateway truly locked and bolted?
Importantly however Mr Justice Chamberlain and Lord Justice Stuart-Smith observed that they were stuck with this conclusion “however anomalous this may seem in the light of the rest of the modern law of judicial review.”
Such comment might be seen as an open invitation to head straight off with a leapfrog appeal to the Supreme Court were it not that in the next paragraph the court also covered off the circumstance 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 the court had reached a different view about the justiciability in principle of decisions of this kind, this particular decision was not open to challenge on any of the pleaded grounds.
Footnotes
[1] Mr Justice Chamberlain and Lord Justice Stuart-Smith
[2] and, even if it was reviewable, it was not reviewable on these facts.
[3] [1978] AC 435
[4] [1977] QB 729.
[5] unreported, 1 July 1994
[6] [2011] EWHC 3759 (Admin).
[7] In ex p. Taylor the proceedings were for contempt of court.
[8] R v Greater Manchester Coroner ex p. Tal [1985] 1 QB 67, 81C