Fiat accompli? R (Campbell) v HM Attorney General for England and Wales [2025] EWHC 1653 (Admin)

There are two ways of reading the judgment in R (Campbell) v HM Attorney General for England and Wales [2025] EWHC 1653 (Admin).

For those who are fans of legal theory, there is a meticulous examination of the role and functions of the Attorney General. The Divisional Court considered his functions (for it is currently a “he”) relating to criminal law (such as consenting to certain prosecutions, dealing with contempt of court, and appeals against unduly lenient sentences) and civil law (for example, in relation to vexatious litigants and special advocates). It conducted a detailed examination of the limitations on the justiciability of his decisions. It concluded with a carefully reasoned decision, ultimately refusing permission to apply for judicial review.

For everyone else, there’s paragraph 56.

The question

Mr Campbell’s brother, Geoffrey, was killed when the North Tower of the World Trade Centre collapsed on 11^th September 2001. HM Senior Coroner for West London held an inquest in January 2013, in which she recorded that an aircraft was flown into the building as part of Al-Qaeda’s co-ordinated attack, thereby causing its collapse.

Mr Campbell does not accept that the building collapsed due to the impact of the aircraft. He believes it was caused by the detonation of pre-planted explosives or incendiaries.

Section 13(1)(b) of the Coroners Act 1988 permits the High court to quash an inquisition and direct a fresh investigation (or a first investigation, where none has been held). Before doing so, the High Court must be satisfied either that the coroner has refused or neglected to hold an inquest or an investigation which ought to be held, or that it is necessary or desirable in the interests of justice to hold another investigation where the first was tainted by fraud, rejection of evidence, irregularity of proceedings, insufficiency of inquiry, the discovery of new facts or evidence or otherwise. The application to the High Court must be made by or under the authority or “fiat” of the Attorney General.

Mr Campbell accordingly applied to the Attorney General for authority to apply to the High Court. It was refused.

Mr Campbell sought judicial review of that refusal. It was said that the Attorney General (in fact, the Solicitor General who made the decision on his behalf) had erred in law, made a decision which was irrational and unreasonable, and had failed to give adequate reasons. The Summary Grounds of Defence asserted that the challenged decision was not justiciable at all (or alternatively was challengeable only on exceptional grounds, such as fraud, corruption or bad faith).

The answer

The short answer is that the Attorney General’s decision was not justiciable. Permission to apply for judicial review was refused.

The slightly longer answer involves consideration of authorities stretching back to 1855. The courts developed the clear position that decisions taken by the Attorney General in the exercise of his “public interest” functions were not justiciable in proceedings seeking the prerogative writ of mandamus (the forerunner to modern judicial review). If the Attorney General was answerable to anyone, it was to Parliament.

A key case was Gouriet v Union of Post Office Workers[1978] AC 435. Broad observations were made in that case by the House of Lords as to the courts’ lack of jurisdiction to review the Attorney General’s decisions. Gouriet concerned the Attorney General’s refusal of consent to bring relator proceedings (actions brought by private individuals in the Attorney General’s name, in order to enforce a public right), but the principle is not confined to such proceedings. In R v Attorney General ex p. Ferrante (unreported, 1^st July 1994) it was said that Gouriet is of general application, and that whether or not a decision is amendable to judicial review depends on its nature and subject matter.

The Divisional Court concluded that the authorities demonstrated that there is a class of discretionary functions of the Attorney General “whose exercise [are] categorically immune from review”. That class includes the Attorney General’s powers to enforce the law by bringing criminal or civil proceedings in the public interest, and powers to authorise or terminate such proceedings by others. The function in section 13(1)(b) of the 1988 Act is one such power.

Accordingly, the refusal of consent was not justiciable, and it was not open to Mr Campbell to seek judicial review of it.

In the alternative, the Divisional Court said that if the decision had been justiciable, then the only grounds for review would have been dishonesty, bad faith or an exceptional circumstance (none of which applied in this case).

The future?

This is not a decision which appears to have been reached with any degree of enthusiasm.

The Divisional Court noted that the identification of a category of decisions as immune from review on any grounds appears “anomalous”. The fact that the Attorney General is accountable to Parliament, said the Court, “hardly distinguishes those decisions from many others which today would certainly be justiciable” (paragraph 47). In paragraph 54, the Court noted that it must be for a higher court to say if the principle in Gouriet is no longer good law in relation to the Attorney General’s powers. The combined effect of existing authority “is that it is not now open to any court below the Supreme Court to decide otherwise, however anomalous this may seem in the light of the rest of the modern law of judicial review”.

One to watch.

Peter Yates is part of the Inquests Team at Parklane Plowden. Peter’s profile can be accessed here.