Forrest v Lord Chancellor & Anor [2011] EWHC 142 (Admin)

[2011] EWHC 142 (Admin)

Case No CO/5855/2009

IN THE HIGH COURT OF JUSTICE

ON APPEAL FROM QUEEN’S BENCH DIVISION

(ADMINISTRATIVE COURT)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 3/02/2011

Before

LORD JUSTICE LAWS

- and –

MR JUSTICE BURNETT

Between

ForrestClaimant

(1) The Lord ChancellorDefendants

(2) The Lord Chief JusticeDefendant

Mr Guy Adams (instructed by Gregg Latchams Llp) for Claimant

Ms Marina Wheeler (instructed by The Treasury Solicitor ) for Defendants

Hearing Hearing dates: 14 December 2010

Judgment

[1]This is an adjourned application for permission to seek judicial review of a decision of the defendants, the Lord Chancellor and the Lord Chief Justice, to remove the claimant from his office as Her Majesty’s Coroner for the District of Avon. There is a considerable procedural history, which I shall describe below in outline. The challenge was first directed to earlier decisions. The final decision now sought to be assaulted was communicated to the claimant by a letter from the Lord Chancellor dated 22 November 2010. By that letter the defendants accepted the recommendations of an Independent Review Body earlier established by them, and the principal focus of the judicial review has been upon the reasoning in the Review Body’s report. As I shall show, Mr Adams’ central argument on the claimant’s behalf was that the Review Body proceeded on a mistaken view of the law as to the legal relationships between the Coroner, his staff, and the Bristol City Council (“BCC”) who were – the claimant would say merely nominally – his staff’s employers.

[2]The claimant also held, indeed still holds, office as an Immigration Judge. The Review Body had recommended that he also be removed from that office. The decision letter indicated that the defendants would re-visit that question after the claimant had had an opportunity to make representations in relation to it.

FACTS AND PROCEDURE

[3]I shall have to consider some further factual detail when I address Mr Adams’ submissions. What follows will suffice to introduce the case.

[4]The claimant, who is a member of the Bar, was appointed HM Coroner for the County of Avon on 1 July 1992. He had been a deputy coroner since 1981. From 1 April 1996, following the abolition of the County of Avon, he continued in office as Coroner for the District of Avon. His responsibilities covered the same geographical area, which was however now split between four local authorities: BCC, South Gloucestershire Council, Somerset and Bath Council and North East Somerset Council. For the purposes of the Coroners Act 1988 the rights and liabilities of the former Avon County Council were transferred to BCC, which acts (as regards the coronial service) as lead council on behalf of all four authorities pursuant to arrangements made under the Avon (Coroners) Order 1996.

[5]Difficulties arose between the claimant and BCC. Mr Stephen McNamara, Head of Legal Services at BCC, became troubled by what he saw as the claimant’s refusal to respond to questions put to him about concerns relating to expenditure, annual leave entitlement, and his sittings as a fee-paid Immigration Judge. On 28 November 2005 Mr McNamara consulted the Coroners Division of the Department of Constitutional Affairs. An exchange of correspondence between the Lord Chancellor and the claimant followed, in which the latter advanced a justification of his position. Mr McNamara was not satisfied. He expressed further concerns to the Office for Judicial Complaints in the autumn of 2006. At length, on 26 January 2007, he made a formal complaint about an email sent by the claimant on 12 December 2006 to Mrs Geraldine Gee, who was Principal Solicitor (Litigation) at BCC. Mr McNamara took the view that the email, which had been copied to external addressees, was defamatory of Ms Gee.

[6]In May 2007 the defendants decided that a judicial investigation into the claimant’s conduct was called for, and a letter from the Lord Chief Justice of 3 May 2007 so informed him. He submitted representations as to why such an investigation should not take place. They were duly considered but by letter dated 18 October 2007 the claimant was informed that the investigation would go ahead. Pursuant to Regulation 19(1) of the Judicial Discipline (Prescribed Procedures) Regulations 2006 (“the 2006 Regulations”) HHJ Risius CB was appointed to conduct it. Judge Risius’ Report

[7]Judge Risius’ terms of reference were sent to him on 21 January 2008. He was required to consider four matters:

“(a) Coroner Forrest’s conduct in relation to his refusal to engage with Mr McNamara/the Local Authority on matters of joint interest; (b) Coroner Forrest’s conduct in relation to Mr McNamara’s complaint of defamation in relation to a member of his staff, Geraldine Gee; (c) Coroner Forrest’s apparent disregard of the need for accountability of public monies and his discourtesy in relation to the views he holds of the Local Authority and in correspondence with Mr McNamara and others; (d) Coroner Forrest’s authorisation for payment of his own legal costs to be paid by the Local Authority despite having been informed by the Chief Executive of the Council that they would not indemnify the Coroner for these costs.”

[8]At paragraph 24 of his report dated 31 August 2008 Judge Risius stated that “[a]t the heart of the dispute between Mr Forrest and the BCC is the nature of their relationship, as to which they are in fundamental disagreement”. This is clearly right. The disagreement fuelled all the events which led to Mr McNamara’s complaints. An important part of the background was that until July 2004 the claimant was the employer of his staff (though not of his officers). However, as the Review Body was to put it in their report of 9 June 2010 (paragraph 13) “[a]s from July 2004 those staff were purportedly transferred to the employment of BCC pursuant to the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE). That is what all concerned thought at the time. There was, however, a dispute as to the effect of the transfer on the power or right of BCC to manage or control its staff”.

[9]Judge Risius articulated the essential nature of the dispute of principle between the claimant and BCC as follows:

“25 Mr Forrest takes the view that coroners are in a unique position, in that unlike other judicial office-holders, coroners are responsible solely to the Crown, and cannot be bound by any other authority or subjected to any budget, and that the only duty of the local authority in relation to the coroner is to ‘render support when and if required, for example, when a coroner’s decision becomes the subject of judicial review. Nothing less nothing more.’ He relies on Coroners’ Courts – A Guide to Law and Practice, by Christopher Dorries, 2nd edition, 2004, OUP, which asserts that ‘local authority executives look to coroners to cut the “budget” in the same way as any other area. Such demands have to be met with a reminder from the coroner that as an independent judicial officer, responsible only to the Crown, he is not bound by the local authority or subject to any budget, reducing or otherwise’. 26 Mr McNamara, on the other hand, on behalf of the BCC, draws a clear distinction between on the one hand a coroner’s judicial decisions, for example concerning post-mortems and inquests, which are for the coroner alone to make and are not properly subject to either budgetary or any other form of control, direct or indirect, by the local authority, and, on the other, the local authority’s legitimate interest in ensuring that public money spent in supporting the coroner in the discharge of his duties is properly accounted for, and moreover that his staff, when employed as well as funded by the local authority, are given the same support as any other local authority employee.”

[10]Judge Risius stated (paragraph 27) that he did not consider it necessary for the purposes of his investigation to resolve this quarrel, and gave reasons. In fact, however, he made it clear that he preferred Mr McNamara’s approach, stating at paragraph 30 his view that “the relationship between a coroner and his local authority employee staff is no different in principle from that which exists between judges in mainstream courts and the HM Courts Service employees who support them”. At paragraph 33 he indicated that he would proceed on the basis that Mr McNamara’s approach to the relationship between the coroner and his staff was to be preferred. It seems to me that the claimant’s contention before the Review Body (paragraph 12 of the latter’s report) that “whilst purporting not to resolve the disagreement, Judge Risius ha[d], in effect, done so” was well justified.

[11]There were a number of individual factual issues addressed by Judge Risius. They arose in several contexts, and all concerned the claimant’s conduct. The flavour can best be obtained by citing some of Judge Risius’ findings. The citations are selective: Judge Risius’ report is detailed and comprehensive (as is that of the Review Body). What follows will reveal the essential theme. “43 I find that the transfer of Mr Forrest’s staff to the BCC was by general agreement, that it would have succeeded in its aims had Mr Forrest not thwarted the BCC’s right to manage the staff appropriately so as to support him efficiently and effectively, and that the virtual breakdown in the relationship between Flax Bourton [where the Coroner’s Court was located] and the BCC officials concerned was the direct result of Mr Forrest’s unreasonable and unjustifiable stance on the issue of responsibility for staff management.” “50 [Concerning a planning meeting on 18 July 2005 in relation to the improvement of court facilities at Flax Bourton and funding from the Home Office and local authority for the construction of a new forensic and public mortuary] I find that whilst Mr Forrest was perfectly entitled to express his views on the working party and the way it was being conducted, there was no justification for the intemperate and humiliating manner in which he expressed himself on this occasion.” “56 I find that while Mr Forrest’s dismay at the failure of the initial bid for Home Office funding was understandable given the inadequacy of the existing mortuary facilities, the intemperate manner in which he voiced his understandable frustrations was unjustified.” “62 [In the summer of 2006 correspondence followed an audit review of the Coroner Service which suggested that the overall level of internal financial control was poor.] I find that this correspondence demonstrates a clear unwillingness on the part of Mr Forrest to engage with the BCC in a matter of legitimate interest to both of them, and that he used intemperate and offensive language to BCC officials, all of whom invariably couched their letters to him in courteous terms.”

[12]There were other matters upon which the claimant came in for criticism. They included his giving instructions to a consultant in mortuary design, Mr Venners, and his passing solicitors’ bills to BCC when he knew or allegedly knew that BCC had indicated it would not pay them (this point engaged the fourth item in Judge Risius’ terms of reference). I will not go into these beyond noting, below, Judge Risius’ summary conclusions in relation to the terms of reference. I may turn next to the email to Ms Gee.

[13]The email was as I have said dated 12 December 2006. After first referring to an earlier email from Mrs Edwards (the claimant’s Head of Directorate) to Ms Gee, in Judge Risius’ words (paragraph 77) it “launched into a tirade complaining that the BCC and Ms Gee were continuing to seek to interfere with a wholly separate public service”. Here are some extracts. “This gross interference will not be tolerated any longer. I remind you, and your seemingly ignorant fellow officers, that such inquiries are absolutely unlawful... Furthermore, this constant interference I judge to be bullying tactics, coupled with extreme harassment of my staff... You are not their line manager, I am... Now I anticipate a reply that will have no bearing on the position at law with regard to a Crown service. Please do not bother. What I do require is your absolute confirmation that these spurious exercises will cease now. Nothing less will do.” The email was copied to the Liverpool Coroner and the Lord Mayor of Bristol (and Mrs Edwards). Mr McNamara responded the next day. His tone was conciliatory but he recorded his firm objection to the claimant’s allegations of bullying tactics and harassment. There followed some exchanges between Mr McNamara and the claimant’s solicitors. Judge Risius considered various pieces of evidence relating to the email. At paragraph 96 he proceeded to state the conclusions he had reached on the four heads of his terms of reference. They included his views about the email:

“Joint interest While Mr Forrest has undoubtedly engaged with the BCC on a number of matters of joint interest, he has refused to engage on others. His refusal has been unjustified and unreasonable, and has been the cause of the partial, but nevertheless serious, continuing breakdown in his relationship and that of his staff with the BCC. Email to Ms Gee There was no justification for Mr Forrest’s allegations against Ms Gee or the intemperate terms in which they were expressed. His subsequent conduct has made matters worse. Accountability and discourtesy Mr Forrest has unreasonably refused to acknowledge that the BCC has a legitimate interest in some of the financial aspects of his service, and has repeatedly expressed himself in discourteous terms unbecoming of a member of the legal profession holding an important public and judicial appointment. Legal costs Mr Forrest acted improperly in passing, or allowing his staff to pass, his own solicitors’ invoices to the BCC for payment as routine expenditure, when he knew that the BCC was not prepared to accept them for payment.”

[14]Judge Risius then considered what action, if any, he should recommend to the defendants. He acknowledged (paragraph 97) that the matters he had investigated did not “touch on the way [the claimant had] discharged his judicial duties”, and he had regard (paragraphs 101 and 102) to the claimant’s bad health. However (paragraph 103), “[s]ubject to any medical evidence, I have come with regret to the conclusion that because of the seriousness of Mr Forrest’s behaviour, the effect it has had on the BCC and members of its staff for a period of three years, Mr Forrest should be removed from his office. If I thought that a formal warning or a reprimand would result in an instant change of heart on Mr Forrest’s part and a willingness to engage with the BCC and its staff in the future without resorting to intemperate actions and language, I would have recommended such a sanction despite my view that what has happened to date justifies removal from office. But I detect no signs of any softening of Mr Forrest’s stance.”

[15]The claimant made detailed representations in response to Judge Risius’ report, but on 11 March 2009 the Lord Chancellor informed him that he and the Lord Chief Justice had arrived at the preliminary view that his conduct justified his removal from office. He was suspended from his offices as Coroner and Immigration Judge.

The Report of the Review Body

[16]On 17 March 2009 the claimant wrote a long letter to the Lord Chancellor. That was followed on 8 May 2009 by a letter from his solicitors threatening judicial review proceedings if the defendants’ decision to suspend him was not reconsidered, and asking that the case be referred to a review body. On 10 June 2009 an application for permission to seek judicial review was lodged on the claimant’s behalf. Amongst other things it was contended that the procedure adopted by Judge Risius had been unfair, not least because the evidence of the witnesses was not disclosed to the claimant until after he had given evidence himself. The defendants decided to establish a review body to review Judge Risius’ recommendation, and in August 2009 Mr Justice Christopher Clarke (chairman), Mr John Pollard (HM Coroner for Greater Manchester South), and Messrs Moi Ali and Simon Gadd were appointed to the task pursuant to Regulation 29 of the 2006 Regulations.

[17]The Review Body held a preliminary meeting, corresponded with the claimant and/or his advisers and with BCC, invited comment on a raft of issues which appeared to arise, and in January 2010 concluded that (in light of the criticisms of Judge Risius’ conduct of his investigation) it would be appropriate to hear the witnesses again, together with certain further witnesses. They heard live evidence between 22 and 26 March 2010.

[18]Almost at the outset of their report the Review Body referred to what I have described as the dispute of principle, articulated by Judge Risius at paragraphs 25 and 26 (see paragraph 9 above), as to the relationship between the claimant, his staff and BCC. At paragraph 14 of their Report they refer to a written submission from Mr Adams on the claimant’s behalf to the effect that the purported transfer of the staff from the claimant to BCC was legally ineffective. Then at paragraph 15:

“The Review Body is not a court. Nevertheless it seems to us that we should express our view as to the legal position of the Coroner and as to the consequences (if any) of the purported transfer because a conclusion on those topics bears upon the reasonableness or otherwise of the Coroner’s conduct.”

And they proceeded to consider those matters. They looked first at the “real issue between the Coroner and BCC” which (paragraph 22) “was and is as to the extent (if any) to which BCC was entitled to manage or control his staff; or to lay down any budget. In his view BCC was a funder, not a service provider: its duty was to pay for the coronial service – a Crown service for which he was responsible. It was no business of the local authority to interfere with (or play any part in) the administration of that service; and it had no entitlement to audit or monitor the carrying out of the service or of the expenditure made in respect of it (save by way of an historical audit of past expenditure), and no power to direct or control his staff.”

[19]The Review Body’s observations upon these contentions are at the centre of the case. “24 In our view the position taken by the Coroner was far too absolute in its terms. As coroner he held an important judicial office independent of any local authority and subject, in relation to his judicial decisions, only to the decisions of superior courts; and in respect of discipline, to the LC/LCJ. It was not for the local authority to tell him how he should carry out his judicial functions or to seek to exercise any control over him in respect of them. Nor was it open to them by budgetary prescription to limit the number of inquests to be carried out, who should be called to give evidence at them, or where they should be held... 25 At the same time BCC not only paid (but did not employ) the Coroner; it provided and paid for his office and staff, whom it employed..., and it paid all his expenses out of public monies raised by taxation. In those circumstances it had a legitimate interest in seeing that the expenditure of public monies was properly accounted for and the monies properly used. Although it was not entitled to seek to influence the coroner in the fulfilment of his judicial duties, it was entitled to be apprised of his likely requirements; and it could, without impropriety, at least question their extent. 26 In relation to the administration of his office by its employees BCC was entitled to take steps to satisfy itself that the office was, so far as administration was concerned, being properly and efficiently run in accordance... with BCC’s financial regulations, systems and procedures, and that the Coroner and his staff were being properly and adequately supported. It was also, as employer, responsible for the payment, safety, welfare, training, performance monitoring and development of the Coroner’s staff; for the terms on which they were employed and the operation of those terms...; for compliance with employment and anti-discrimination legislation; and for questions of dismissal and discipline.” “29 The Coroner took the view that the judicial independence of the coroner would or might be usurped if BCC’s role was anything other than as funder of the service or if his staff were under the control of anyone other than himself. He looked on the setting of a budget, even in relation to administration as a fetter upon his jurisdiction... We regard that view, which relegates the council to the position of payer and nothing more, as erroneous. We also regard it as unreasonable.”

[20]The Review Body proceeded to analyse for themselves the contractual position relating to the claimant’s staff, principally by reference to Mrs Edwards’ position. They held (paragraph 40) that in July 2004 there had been a transfer of the Coroner’s staff from the claimant to BCC under the Transfer of Undertakings (Protection of Employment) Regulations 1981. Then this:

“44 The fact that BCC became the employer of Mrs Edwards as the Coroner’s Head of Directorate raises the question as to the extent to which, after the transfer, it was open to BCC to exercise any control or direction over her...”

Mr Adams submitted that the claimant alone was entitled to manage and control Mrs Edwards. “46 We do not accept this analysis. The effect of the transfer was that the Coroner ceased to be, and BCC became, Mrs Edwards’ employer. She remained subject to day to day control by the Coroner, whose Head of Directorate she was, to whom she reported, and from whom she took instructions. But that did not mean that BCC had no power of direction over her, or that it became subject to all the duties of an employer but without any of its powers. As between BCC and the Coroner BCC had the ultimate power of control. In managerial terms BCC was at a level higher than the Coroner. If BCC exercised control in a way that prevented the due administration of the coronial service... it would be failing to supply (in full) and pay for the administrative services the provision of which constituted the undertaking transferred. In ordinary circumstances such a situation should never arise. If it did that might, if the facts were sufficiently egregious, expose BCC to a claim for prohibitive or mandatory relief upon the footing that it could not lawfully exercise its powers so as to prevent the proper administration of the coronial service. That does not, however, mean that it had no powers of direction in respect of its employees.”

[21]There follows discussion of a subsidiary issue raised by Mr Adams, namely whether after the transfer the claimant remained Mrs Edwards’ line manager. I need not enter into the details. The Review Body then embarked upon a lengthy excursus into the factual history. They dealt with such matters as the relations between Mrs Edwards and the official to whom she reported (Ms Dawes – Mrs Edwards regarded her as a bully: paragraphs 57, 59); the prospects of Home Office funding for a new mortuary (paragraphs 62 ff); the meeting of 18 July 2005 (referred to at paragraph 50 of Judge Risius’ report – see paragraph 11 above). After this meeting “[t]he working relationship between Ms Dawes and Mrs Edwards never recovered; and no working relationship between Ms Dawes and the Coroner ever developed”: paragraph 114); correspondence following that meeting, leading to the Review Body’s conclusion (paragraph 124) that “the Coroner’s attitude went beyond a robust defence of his judicial independence and constituted high handedness, which precluded a satisfactory working relationship with BCC...”. Further matters included the claimant’s instructions to Mr Venners, as regards which the Review Body (paragraph 142) took a somewhat more nuanced view than had Judge Risius. They also dealt with the email to Mrs Gee of 12 December 2006, as regards which they agreed (paragraph 225) with Judge Risius’ conclusions.

[22]After he had been suspended from office following Judge Risius’ report, the claimant made a formal complaint to the Avon and Somerset Police against Mr McNamara, Ms Dawes and Mrs Gee. He blamed them for his suspension. He accused Mr McNamara of misconduct in public office. He said there had been a conspiracy to remove him from office and that Judge Risius had been deliberately misled; and that all three BCC officials had perjured themselves (paragraphs 229, 230).

[23]The Review Body’s overall conclusions on the facts are set out under the heading “Summary” at paragraphs 238 ff. I need only give the following selective extracts. “238(a) The Coroner took an erroneous and far too dogmatic view about his position and his relationship with the BCC. His views were honestly but not, in our view, reasonably held. We agree with Judge Risius (paragraph 98) that he allowed his views to dominate his attitude and his actions towards BCC and in particular Ms Dawes and Mrs Gee in a way that caused the relationship to break down completely and prevented it from being restored... (b) We agree with Judge Risius that the Coroner’s behaviour at the 18th July meeting was intemperate and humiliating in effect and that his attitude to Ms Dawes was unacceptable and unjustified... (c) The Coroner’s reaction to the failure of the bid for Home Office funding was intemperate and uncalled for... ... (g) We regard the Coroner’s e-mail of 12th December to Mrs Gee as markedly intemperate and unjustified. His subsequent conduct in relation to it did not improve matters but made them worse.”

[24]The Review Body did not agree with Judge Risius in every particular as to the claimant’s conduct, but there was no substantial departure from his findings. They proceeded to consider (paragraph 239 ff) what disciplinary action should be taken. They acknowledged (paragraph 239) various matters which favoured his case or mitigated his fault – there was no criticism of his discharge of judicial duty; his principal motives had been to promote the coronial service and to care for his staff; he had suffered constant pain, not always alleviated by painkillers. However (paragraph 240) they concluded, like Judge Risius, that he should be removed from his office as Coroner for Avon District. They said:

“241 We have reached this conclusion having regard to the totality of what has occurred. It is the combination of (i) his general approach to his position and that of BCC, (ii) his refusal and failure to engage with BCC on what should have been matters of mutual interest; (iii) the events of 18th July and their aftermath; (iv) the total breakdown and failure to repair the relationship with first Ms Dawes and then Mrs Gee; (v) the intemperance shown in his response to the failure of the bid; (vi) his cavalier attitude in relation to Henriques Griffiths’ bill; (vii) his attitude to the audit; (viii) his e-mail of 12th December, its circulation and aftermath; and (ix) his complaint to the police, that causes us to conclude that he has shown himself unable to have an effective liaison and a satisfactory working relationship with BCC.”

There is some expansion of this reasoning in paragraphs 242 – 244 which I need not set out. At paragraph 245 the Review Body conclude that the claimant should also be removed from his post as Immigration Judge. They stated:

“[T]he Coroner has, in our view, shown himself to be lacking in good judgment, dogmatic, wanting insight as to the effect of what he is doing and saying, and unable or unwilling to see alternative points of view. He has behaved in a bullying manner. He has used his position to make and publish unfounded allegations, including serious criminal charges. His conduct over an extended period, including after his suspension, has fallen markedly below the standard to be expected of a judge...”

[25]By letter dated 23 June 2010 the Lord Chancellor indicated the defendants’ acceptance of the Review Body’s recommendations. However after further correspondence (and the initiation of judicial review proceedings) the defendants accepted that the claimant should be allowed an opportunity to make representations against removal from office pursuant to Regulation 27(1)(c) of the 2006 Regulations. The claimant availed himself of that opportunity and there was further correspondence. However the defendants’ position remained unchanged, and their final decision was as I have said communicated to the claimant by the Lord Chancellor’s letter of 22 November 2010.

THE CLAIMANT’S SUBMISSIONS

[26]It is a signal feature of the case that Mr Adams for the claimant in the end mounted no substantive challenge to the factual conclusions either of Judge Risius or of the Review Body. (Grounds 1 – 3 assaulted certain aspects of Judge Risius’ decision but have been overtaken by the findings of the Review Body.) His submissions as finally advanced in Grounds 4 and 5 of the claim were directed entirely at the Review Body’s views of the legal relationship between the claimant, his staff and BCC, including the scope of the claimant’s rights to recover expenses from BCC. The connection between such points and the final judgment of the defendants that the claimant should be removed from office has throughout the case seemed to me to be tenuous. Mr Adams’s principal submission (Ground 4) was that the claimant’s view of the relevant legal relationships was correct or at least reasonable, and it was a premise of the Review Body’s condemnation of the claimant’s conduct that that view was unreasonable. I think that may put the matter too high; but the Review Body certainly stated (paragraph 15 – I have already set out the passage) that “a conclusion on those topics bears upon the reasonableness or otherwise of the Coroner’s conduct”. That being so Mr Adams submits that if his client’s view of the legal relationships was indeed reasonable, the Review Body’s condemnation of his conduct cannot stand and ought to be revisited. Despite my reservations as to this chain of reasoning, I consider that in the circumstances the court ought to confront Mr Adams’ substantive case on the law.

The Law Relating to the Coroner and his Staff – Ground 4

[27]Certain things are beyond contention. The Coroner is a judge; and neither BCC nor anyone else, save a properly constituted court of appeal or review, has the least business interfering with his judgments or how he arrives at them. His independence as a judge is a matter of constitutional guarantee. Nothing could be more elementary. Accordingly, as the Review Body observed at paragraph 46 (cited above at paragraph 20), BCC “could not lawfully exercise its powers so as to prevent the proper administration of the coronial service”.

[28]Despite Mr Adams’ energetic assertions to the contrary (In his submissions before us and at paragraphs 44(f), 45 and 46 of his skeleton), in my judgment the Review Body rightly held (paragraph 40) that in July 2004 the claimant’s administrative staff were transferred to BCC under TUPE. The evidence was all one way. Accordingly, as their employers, BCC enjoyed appropriate powers of control and direction over the staff, to be exercised consistently with the claimant’s judicial independence and proper freedom of action as a judge. The high constitutional importance of those values did not in principle or practice require that his authority over the staff should be all-embracing, leaving no employers’ role for BCC. On this aspect I would respectfully endorse the whole of the reasoning at paragraph 46 of the Review Body’s report.

[29]If the claimant’s judicial function cannot justify the exclusive powers over his staff which are asserted on his behalf, then Mr Adams must seek elsewhere to find them. He cited much historic legal material, beginning with the Act to Provide for Payment of the Expenses of Holding Coroners’ Inquests 1837 and including R v Carmarthenshire Justices

(1847) 10 QB 32

, which with respect I need not set out: they do not make Mr Adams’ case. The modern provisions contained in the Coroners Act 1988 (“the 1988 Act”) ss.24 – 28, to which Mr Adams referred, are entirely concerned with the payment of fees and expenses and related matters; and they import certain controls over the amounts.

[30]In short BCC is obliged to meet the expenses of the Coroner’s office, but the obligation is not open-ended and the sums involved are by no means at the Coroner’s entire discretion. As I understand it Mr Adams concedes as much. Paragraph 23 of his skeleton argument, from which I did not understand him to resile at the hearing before us, reads: “The role of the local authorities in relation to the coronial function is therefore to collect taxes to fund it... and to hold the coroner to account for his expenditure” (my emphasis). And Mr Adams accepts (paragraph 21) what is no doubt a corollary of this, namely that the Coroner’s expenditure must be reasonable.

[31]There are no authoritative legal materials which demonstrate, or even suggest, that a Coroner possesses exclusive powers over his staff even though as a matter of contract their employer is a third party, the local authority. Mr Adams’ submission (skeleton paragraph 37) that local authority staff seconded to work for a Coroner “remain entirely under the Coroner’s control” has no foundation in law.

[32]It is true that the arrangements for funding the coronial service in England and Wales are to some extent wrapped in history. It is possible to envisage circumstances in which the responsible local authority and the Coroner may have different views, perhaps very different views, as to the propriety of this or that item of expenditure, or as regards an order or direction given to a member of staff. If such differences could not be settled – I apprehend that would only arise in an extreme case – their ultimate arbiter would no doubt be the High Court, presumably in judicial review proceedings. Plainly the High Court would be acutely alive to the high importance of the Coroner’s judicial independence. The possibility of such differences, however, cannot begin to justify the high-handedness and aggression exhibited by the claimant in this case, or the absolute view he takes as to his powers over the coronial staff.

[33]In these circumstances I would wholly endorse the Review Body’s conclusion (paragraph 29 cited above at paragraph 19) that the claimant’s view of the legal relations between himself, BCC and his staff was both erroneous and unreasonable. If my Lord agrees, that disposes of Ground 4 in the judicial review.

Recoverable Expenses – Ground 5

[34]Ground 5 is rather more specific. I may deal with it very shortly. It alleges that the Review Body erred in holding(a) that the cost of seeking planning permission for a new forensic mortuary was not a recoverable expense within the meaning of the 1988 Act, and

(b) that the cost of seeking advice concerning the Coroner’s staff could not likewise amount to a recoverable expense.

[35]The Review Body dealt with these points at paragraphs 147, 210 – 211, and 238(d) and (f). I did not understand Mr Adams to advance any sustained argument to show that on the true construction of the material sections of the 1988 Act the Review Body’s conclusions could not be sustained. Moreover I think it fanciful to suppose that if there were something in these points, that could begin to undermine the Review Body’s, and the defendants’, conclusions as to the proper outcome of this case given the unchallenged findings as to the claimant’s conduct.

Other Matters

[36]Mr Adams also drew our attention to certain aspects of the evidence in the case which he claimed, as I understood him, disclosed particular actions by BCC relating to the claimant’s staff which were offensive or inimical to the imperative of judicial independence. It is not entirely clear where these arise in the grounds of challenge. In any event the points are in my judgment marginal. They do however show some insensitivity by BCC to the claimant’s position. Examples relate to such matters as the use of the council’s headed notepaper and a requirement that in relation to the media Mrs Edwards (as I have said, the claimant’s Head of Directorate) “represents the Council/Coroner’s Service [and] has to represent the council in highly contentious, high profile cases” (my emphasis).

[37]Mr Adams referred to some other materials, including evidence touching the unhappy relationship between Mrs Edwards and Ms Dawes, but none of it bears on the right conclusion in this case, at any rate if my primary view of Ground 4 in the judicial review is correct. As regards the detailed points I am inclined to accept that in some instances BCC could and should have shown greater sensitivity to the claimant’s autonomy as Coroner. But I am clear that that conclusion cannot begin to shift the outcome of the case.

CONCLUSION

[38]This is an unhappy case. The claimant, who is not in good health, is without doubt wholly committed to the integrity of his judicial office. But he has harboured an idée fixe about the scope of his empire; and as the defendants have concluded, that has led him to behave in a manner that is not compatible with his continuing as Coroner.

[39]In my judgment the defendants’ decision is not marred by any legal flaw and this application for permission to seek judicial review must be dismissed. Mr

Justice Burnett:

[40]I agree.