Article 2 Inquests: An Overview and Update

In a recent Landmark Chambers Inquest Law webinar, Harriet Wakeman and Katharine Elliot reviewed the core principles of Article 2 of the European Convention on Human Rights (“the Convention”) and how it is applied in the area of inquest law, including reflecting on lessons to be learned from the latest case law. This blog builds on the content of that webinar with the aim of providing practitioners and members of the public with a more detailed overview of the topic.

Article 2 of the Convention provides:

“1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which the penalty is provided by law.

2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained, and

The European Court of Human Rights has held in several cases that Article 2 comprises three distinct obligations:

1) The general obligation to protect by law the right to life (referred to as the positive obligation);

2) The prohibition of intentional deprivation of life, delimited by a list of exceptions (the negative obligation); and

3) The procedural obligation to carry out an effective investigation into alleged breaches of either substantive limb (the procedural obligation).

In the UK, the procedural obligation is given domestic effect through coroners’ inquests, including via an enhanced investigative duty on coroners in circumstances where the person’s death may have resulted from a breach by the state of Article 2. In practice, this means that there are two types of inquest: a Jamieson[1] inquest, in which the coroner must consider by what means the deceased came to their death; or an Article 2 inquest, also known as a Middleton[2] inquest, where an issue of breach of Article 2 arises. The questions the coroner must determine in each type of inquest are prescribed by the Coroners and Justice Act 2009 (“CJA 2009”). Per section 5(1), in the context of a Jamieson inquest, the coroner must determine:

Who the deceased was;
How they came by their death;
When they came by their death; and
Where they came by their death.

In the context of a Middleton inquest, section 5(2) states that the coroner must also undertake a wider-reaching enquiry into the circumstances surrounding the deceased’s death (i.e., when determining how they died) “where necessary in order to avoid a breach of any Convention rights” – in other words, where Article 2 so requires.

This difference can be highly significant in practical terms:

Article 2 inquests may be wider in scope. This means that more evidence will need to be produced, in particular by public bodies involved, addressing the key issues connected with the person’s death, and more witnesses are likely to be required to attend in a Middleton inquest compared to a Jamieson inquest.
The wider scope of issues covered can be particularly meaningful to family members of the deceased in helping them to understand the full circumstances surrounding the death of a loved one.
Article 2 inquests often act as a catalyst for positive change. They can, for example, result in changed considerations in Reports to Prevent Future Deaths (often referred to as PFD reports), which, under Paragraph 7 of Sch 5 CJA 2009, must be prepared by coroners where they believe that action should be taken by public bodies to prevent future deaths. Family members may take comfort in the idea that lessons are learned as a result of their loved one’s inquest which may help reduce the risk of death for others in the future.
Legal aid exceptional case funding is highly likely to be available for family members if an inquest is determined to be an Article 2 inquest, meaning they will be able to access legal advice and representation during what is an often complex process.
On a less positive note, the wider the scope of an inquest, the longer and more complicated it is likely to become. It is therefore common for Article 2 inquests to last for several weeks.

The investigative duty

Turning to look in more detail at the procedural obligation or, as it is often called, the investigative duty under Article 2, this arises in the context of and is parasitic on an arguable breach of the positive or negative obligations in Article 2 (as set out above) (R (Gentle) v Prime Minister [2008] AC 1356). It is not a freestanding obligation and is also not to be interpreted in a way that imposes an unreasonable or disproportionate burden on public bodies. As confirmed by the Supreme Court in R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20, when Article 2 is engaged, it must always be applied with a reasonableness and proportionality of approach.

The investigative duty can arise in two ways. Firstly, it can arise automatically in a specific category of cases where the facts give rise to the possibility of a substantive breach of Article 2. The paradigm example is from Middleton itself, namely a violent death in custody, whether at the hands of another prisoner or by suicide. In the recent case of R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410, the Court of Appeal considered the specific category of cases in which the investigative duty automatically arises. It clarified that there is no closed category for such cases, but, typically, Article 2 inquests will include instances of suicide or unlawful killing during detention. This is because, in cases where the deceased died whilst under the control of the state, the state has assumed responsibility for their welfare and is therefore under a heightened duty to protect their Article 2 rights (Savage v South Essex NHS Trust [2008] UKHL 74). Such cases therefore give rise to a legitimate suspicion of state responsibility. However, as confirmed in Tyrell v HM Senior Coroner County Durham and Darlington & MoJ [2016] EWHC 1892 (Admin), Article 2 will not automatically apply when the deceased has died from natural causes, regardless of whether they died in circumstances where they were under the control of the state.

The second way the investigative duty can arise is by demonstrating that there has been an arguable breach of an Article 2 substantive duty by the state (R (Humberstone) v Legal Services Commission [2010] EWCA Civ 1479). ‘Arguable’ in this context means more than fanciful. This threshold may be met when there is an issue of potential breach which requires investigation as part of the inquest process, not just where existing evidence before the coroner already demonstrates that a breach occurred (Moss v HM Coroner for the North and South Districts of Durham and Darlington [2008] EWHC 2940 (Admin)). It should be noted that the threshold for triggering the investigative duty is low, but there must be a credible suggestion of breach which must be more than mere speculation and be advanced on a real evidential basis (per Maguire, as above).

As the Article 2 substantive duty most often argued to have been breached (and therefore to trigger the investigative duty) is the positive obligation, we will now consider the two aspects of that obligation – the operational duty and the systems duty – in more detail.

Operational duty

The operational duty is one aspect of the positive obligation under Article 2. The leading case considering the operational duty is the Strasbourg authority of Osman v UK (2009) 29 EHRR 245. This established that the relevant authority must have known, or ought reasonably to have known at the time, of the existence of a real and immediate risk to the life of an identified individual. ‘Real’ means that its existence must be objectively justified by evidence. ‘Immediate’ means present and continuing at the relevant time. The threat of which the authority had actual or constructive knowledge must have been to the life of the individual in question, not a generalised threat, and the risk must have been a significant or substantial risk to life, not merely a risk of harm (no matter how serious) (R (AP) v HM Coroner for Worcestershire [2011] EWHC 1453 (Admin); Morahan, as above). The authority must also have failed to take measures within the scope of its powers which it might reasonably be expected to have taken to avoid that risk (Rabone v Pennine Care NHS Trust [2012] UKSC 2).

The threshold to trigger the operational duty is high, going beyond “mere negligence” (Re Officer L [2007] 1 WLR 2135). As in relation to the investigative duty, it is not to be interpreted in a way that imposes an impossible or disproportionate burden on the relevant authority, taking into account the competing demands of state resources and the proportionality of any particular measure which might have been taken.

Systems duty

The second aspect of the positive obligation under Article 2 is the systems duty. To establish a breach of the systems duty, it must be shown that there was an arguable failure of a systemic nature, namely, a failure by the public body in question to provide an effective system of rules, guidance and control within which individuals are to operate, as opposed to an instance of negligence by an individual (R (on the application of Long) v SoS for Defence [2015] EWCA Civ 770). In the healthcare context, this includes having effective administrative and regulatory systems in place, such as a system of checks and balances which ensures that practitioners are delivering medical treatment in a way that promotes the best interest of patients. A breach of the systems duty may be evidenced by repeated mistakes of the same kind on multiple occasions. However, as confirmed in R (Scarfe) v Governor of HMP Woodhill [2017] EWHC 1194, it is not enough to show a series of distinct but separate operational mistakes. It is also insufficient to evidence mistakes or negligence by one individual so it is important to avoid trying to miscategorise individual fault as systemic failure giving rise to a breach of Article 2 (Lopes de Sousa Fernandes v Portugal (2018) 66 EHRR 28; R (Parkinson) v Kent Senior Coroner [2018] EWHC 1501 (Admin)).

Proving breaches of Article 2

When proving that there is a connection between an Article 2 breach and a person’s death, it is not necessary to satisfy a civil style “but-for” test, namely to show that the relevant death would not have occurred but for the alleged breach of Article 2. However, there must be a causal link of some kind between the alleged breach and the death. The legal test is whether there was a loss of a substantial chance of survival (Savage), and it must be shown that there was a failure to take reasonable measures which could have had a real prospect of avoiding the death in question.

It is important to bear in mind when considering whether a breach of Article 2 has occurred that authorities must ensure that measures taken to fulfil their Article 2 obligations are discharged consistently with the relevant person’s other Convention rights. For instance, while constant surveillance in detention may effectively prevent suicide and therefore a person’s Article 2 rights, such a measure may be a disproportionate interference with Article 8 (see, for instance, Osman).

Funding

As mentioned above, one of the practical differences between a Jamieson inquest and a Middleton or Article 2 inquest is the availability of legal aid funding. In a Middleton inquest, legal aid exceptional case funding will be available to fund the deceased’s family’s representation at the inquest, where necessary to allow them to participate in the investigative process. This is no longer means-tested.

Campaigners – including the families of those killed during the Hillsborough disaster – have long called for an automatic grant of legal funding from the outset of the inquest process (i.e., before the coroner has taken a preliminary view of whether or not Article 2 may be engaged on the facts of a particular case) and also that the funding provided to the families of the deceased is equivalent to that of other inquest participants. In the most recent King’s Speech, the Labour government expressed its intention to “take action to improve assistance to bereaved persons at inquests, to ensure families are fully able to participate”. It is, as yet, unclear what this will look like.

Article 2 in practice

These principles have been considered in three recent cases, which highlight issues which arise when they are applied in practice.

R (Boyce) v HM Senior Coroner for Teesside and Hartlepool [2022] EWHC 107 concerned a 15-year-old girl with complex behavioural needs who tragically died by suicide whilst in the care of a private children’s home in which she had been placed by the local authority. The coroner determined that Article 2 was not engaged, and a judicial review was brought to challenge this determination. The question for the High Court was whether the duty to conduct an Article 2 inquest should arise when a child dies in the temporary care of a local authority. Applying Morahan, the court held that this situation was not directly analogous to situations of state detention as the child had been subject to a care order, rather than a secure accommodation order. There was a very real and obvious difference between a child in secure accommodation who was deprived of their liberty and a child who was free to come and go as they pleased. Thus, the court held that Article 2 did not arise automatically in cases where a child was in care. On the facts, it was concluded that, given the high standard and level of care that had been provided, the coroner was entitled to conclude that it was not arguable that improved systems or procedures would have presented the child with a real and substantive chance of survival. In any event, the children’s home, being private, was not exercising a public function.

Dove v HM Assistant Coroner for Teesside and Hartlepool [2023] EWCA Civ 289 concerned an individual with a long history of physical and mental health issues who died by suicide two weeks after her state benefits had been withdrawn. The original inquest had lasted just 37 minutes, and there was no evidence before the coroner that there was any possible impact of the withdrawal of benefits on the deceased’s death. The deceased’s mother brought an application under section 13 of the Coroners Act 1988 seeking a fresh inquest, arguing that the withdrawal of benefits had caused the deceased additional stress and had contributed to her death. The coroner ruled that it was not within her remit to call into question the decisions of the Department for Work and Pensions (“DWP”) when conducting an inquest, and suicide was recorded as the cause of death. Following the inquest, the independent case examiner investigated the handling of the deceased’s benefits case and found significant failings by DWP. An expert psychiatrist report concluded that it was likely that the deceased’s mental state at the time of her death would have been substantially affected by the decision to withdraw her benefits.

The Divisional Court held that the fresh evidence did not mean that a fresh inquest should be ordered. The deceased’s mother appealed to the Court of Appeal, which ordered a fresh inquest. It was held that there was a wider public interest in ordering a fresh inquest given that DWP makes many similar decisions affecting vulnerable members of the public every day. It was noted that a PFD report might prevent similar situations from occurring in the future. Although the Court of Appeal held that the administration of welfare benefits did not involve any assumption of responsibility to safeguard the deceased against risks of self-harm or suicide, the operational duty would apply in some circumstances to require the state to take positive steps to protect life, including the prevention of a real and immediate risk to life. On the facts, DWP’s actual or constructive knowledge did not establish that it was put on notice that the deceased was at a real and immediate risk.

In R (Parkin) v His Majesty’s Assistant Coroner for Inner London (East) [2024] EWHC 744 (Admin), the High Court considered whether an Article 2 duty arose in circumstances where the individual was living in their own home, had capacity and had exposed themselves to danger. The case concerned Mrs Wolff, a 74-year-old woman, who was a smoker, was diabetic and was a hoarder. The state of her home had meant that the Fire Brigade had received multiple referrals to her home to provide safety advice and had tried unsuccessfully to visit her on eight or nine occasions which, on each occasion, she refused. In 2019, the Fire Brigade succeeded in fitting smoke alarms in the property, but she had declined numerous offers of help from Social Services and had been warned about the risk of hoarding. Mrs Wolff died at home from smoke inhalation after her sofa caught alight, suspected to be caused by unsafe use or disposal of a cigarette.

The High Court concluded that the coroner did not have a duty under Article 2 to investigate the circumstances of the deceased’s death. Applying Rabone, Collins Rice J held:

There was a real and immediate risk of death. However, that was a necessary but not sufficient step for establishing an Article 2 duty.
The deceased was not a person over which the state exercised control. She was a private citizen who died in her own home, living an independent life that she had chosen.
Unlike in Rabone, it had been established that the state had no power under the Mental Health Act 1983 to control or detain Mrs Wolff.
Whilst a multi-disciplinary team had put together a plan for Mrs Wolff’s welfare, that did not come close to establishing a positive operational duty. Mrs Wolff had been wholly resistant to that plan.
Whilst vulnerability is relevant, not all degrees of vulnerability will be relevant. Mrs Wolff had not been identified as vulnerable on account of her mental health. The relevant risk factors were under Mrs Wolff’s control herself, as she had been resistant to previous state intervention and any further intervention was dependent on her consent.

In the circumstances, the Article 2 duty did not arise and the decision of the coroner was upheld. The decision underscores that, where someone with capacity is choosing to expose themselves to a risk of danger, the state will not generally be deemed to have assumed responsibility for that risk.

This blog was written by Katharine Elliot, Harriet Wakeman and Claudia Hyde.

You can view the full webinar recording here.

[1] R v North Humberside Coroner, ex parte Jamieson [1995] QB1

[2] R v Her Majesty's Coroner for the Western District of Somerset and another, ex parte Middleton [2004] UKHL 10