The distinction between Article 2 compliant (“Middleton”) inquests and “Jamieson” inquests continues to generate litigation. In three recent decisions the Court has considered issues including the threshold for ordering an Article 2 inquest and the appropriate scope of such an inquest.
In R (on the application of Kent CC) v HM Coroner for Kent (North-West District) [2012] EWHC 2768(Admin), (2013) 177 J.P. 82, Kent County Council challenged a decision by the coroner that Article 2 of the ECHR applied to the inquest into the death of a 14-year-old boy (Edward Barry) who had been assessed as being in need within the meaning of section 17 of the Children Act 1989. Edward had been involved with social services for some nine months before he died after drinking methadone. He had not been taken into care and no proceedings under section 31 of the Children Act had been commenced. Following his death, a serious case review identified a number of shortcomings on the part of the local authority.
The County Council contended that there was no arguable breach of the substantive obligation under Article 2. Statutory systems for children in need of care were in place and wholly adequate and there was no systemic failure which could lead to an arguable breach. The Council further argued that there was no operational obligation under Article 2 because Edward was not sufficiently under the state’s control, nor was there any real or immediate risk to his life of which the Council knew or ought to have known. On this basis, the Council contended that the coroner had erred in ordering an Article 2 inquest.
The Court upheld the Council’s challenge on this ground. In doing so, it reiterated that there are three possible obligations on the state pursuant to Article 2 ECHR: the general duty (which comprises two parts: a negative duty not to take life without justification and a positive duty to establish a framework of laws and procedures to protect the right to life); the “operational” duty; and the procedural duty to investigate any arguable breaches of the substantive duty. The operational duty arises, the Court suggested, where there is an allegation that the state has violated its general duty and at the material time the authorities knew or ought to have known of the existence of a real and immediate risk to the life of an identified individual and failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court emphasised that the test of “real and immediate risk to life” is a stringent one with a very high threshold to be met.
The Court held that while there could potentially be an operational duty in circumstances such as those arising in the present case, on the facts there was insufficient evidence of a real and immediate risk to life. In the months before his death, Edward had undoubtedly been vulnerable and at risk but, viewed objectively, that risk was not a risk to life. It was a risk of harm, and that was not to be equated, with the wisdom of hindsight, with a risk to life. In those circumstances there was no operational duty in place at the time of his death. Although the local authority had some measure of responsibility for Edward because he was vulnerable and had been assessed as being “in need” for the purposes of s.17, it did not have parental responsibility for him. It would not be proportionate to require a local authority to exercise sufficient control over all children in a similar position to Edward within its jurisdiction so that an operational duty was owed in every case. It followed that no procedural duty arose, and the state was not required to hold a Middleton inquest.
Local authorities will no doubt be relieved by this decision which serves as a reminder that the operational duty does not arise in every case in which a vulnerable person comes to harm and that it only arises where there is a real and immediate risk to life. Nonetheless, the Court acknowledged that the circumstances were in the “potential territory” of Article 2. The outcome might well have been different had Edward been the subject of a care order, or had there been evidence of a real and immediate risk to life.
It is clear from another recent decision that once an Article 2 inquest has been conducted, the Court will be very reluctant to uphold challenges brought on the ground that the coroner has exceeded the legitimate scope of his inquiries.
In R (on the application of Sreedharan) v HM Coroner for the County of Greater Manchester and others [2013] EWCA Civ 181 the Court of Appeal (Hallett, Maurice Kay LJJ and Lord Dyson) considered an appeal brought by a General Practitioner who had prescribed the deceased the medication on which he had then overdosed resulting in his death. At the inquest, both the role of the emergency services and that of the Appellant GP had fallen to be considered but as the inquest progressed, increasing focus was placed on the actions and conduct of the GP. The jury returned a verdict of unlawful killing having been directed by the coroner that they were not entitled to return a verdict of suicide.
The appeal was brought on various grounds including that the coroner had erred in focusing too much attention on the credibility of the Appellant, had exceeded the appropriate scope of legitimate inquiry into the cause of death and had failed adequately to investigate the role of the emergency services. The Appellant contended that the coroner had erred in admitting evidence which related to his conduct some years after the death of the deceased including details of proceedings before the GMC and allegations that amendments had been made to the deceased’s medical records.
Giving the judgment (with which Maurice Kay LJ and Lord Dyson concurred), Lady Justice Hallett summarised the key legal principles arising in the case. In relation to the scope of an Article 2 inquest she reiterated the principle that the inquiry is not restricted to the “last link in the chain of causation”: R v Inner West London Coroner, ex p. Dallaglio [1994] 4 All ER139. She held as follows:
“v. The incorporation of Article 2 of the ECHR into domestic law brings with it the procedural obligation to carry out an effective investigation and to ensure, so far as possible, “that the full facts are brought to light; that culpable and discreditable conduct is exposed; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons from his death may save the lives of others.” (R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 ,)
vi. Where Article 2 is engaged the wording of rule 36 should be interpreted so that when considering ‘how’ the deceased came by his death the Coroner or jury must decide not simply ‘by what means’ but ‘ by what means and in what circumstances’ he met his death. (R (Middleton) v West Somerset Coroner 2004 AC 182)
vii. There is now in practice little difference between the Jamieson and Middleton type inquest as far as inquisitorial scope is concerned. The difference is likely to come only in the verdict and the findings. ( R (Smith v Oxford Assistant Deputy Coroner 2011 1 AC )
viii. Rule 43 enables a Coroner at the end of the inquest to make a report to relevant parties where the evidence gives rise to a concern that circumstances creating a risk of other deaths will occur or continue to exist in the future. This now forms part of the means by which the state discharges its Article 2 obligation. (R (Lewis) v HM Coroner for the Mid & North Division of Shropshire [2010] 1 WLR 1836). “
On the facts, Lady Justice Hallett found that the coroner’s conduct of the inquest disclosed no error of law. In terms of the appropriate scope of an inquest, she noted that the phrase “in what circumstances” appears very broad and that to date the courts have avoided being overly prescriptive about precisely what comes within the ambit of ‘other factors which are relevant to the circumstances of the death’. The Court of Appeal rejected the argument that this was a “hybrid” inquest, in which the procedural duty under Article 2 was triggered only by the involvement of the emergency services (as state agents). It was not right, the Court found, that once a coroner has embarked upon an Article 2 compliant inquest there should be less intensive scrutiny of the conduct of the non-state agent than of the conduct of the state agent - “it is only by examining the roles of each fully and fairly that the role of the state agent can be put into its proper perspective and the truth ascertained”.
As the role of the non-state party was crucial to the investigation, the coroner was entitled to investigate the circumstances in which the medication had been prescribed. In relation to the control of admissible evidence, the Appellant had a high threshold to meet in establishing that the coroner had erred in admitting the evidence complained of. The Court concluded that most of the evidence to which the Appellant took exception was undoubtedly within the legitimate scope of the inquiry. Although there were several pieces of evidence which were of marginal or peripheral relevance to the death, such complaints did not amount to a proper ground for challenging the lawfulness of the process.
The third decision which has touched upon the distinction between Article 2 and Jamieson inquests is R (on the application of Shaw) v HM Coroner and Assistant Deputy Coroner for Leicester City and South Leicestershire [2013] EWHC 386 (Admin). This case concerned an Article 2 inquest into the death of William Ewan who died in the course of surgery to replace a defective heart valve. The coroner had returned a narrative verdict, namely that the death had been the “unintended outcome of a therapeutic medical procedure.” The deceased’s daughter, Ms Shaw, challenged the conduct of the inquest on a number of grounds including delay and an allegation of bias (on which see further below). Although Ms Shaw had been represented at the original inquest, she acted in person in the judicial review proceedings.
The Court took the opportunity to set out again the authorities on the distinction between Article 2 and Jamieson Inquests, reiterating that the difference between the two centres on the nature of the verdict and citing the judgment of Lord Philips in R (on the application of Smith) v Oxfordshire Assistant Deputy Coroner [2011] 1 AC 1 to this effect. The Court quoted Lord Philip’s summary of the procedural obligations which apply:
“The procedural obligation requires a state, of its own motion, to carry out an investigation into a death that has the following features: (i) It must have a sufficient element of public scrutiny of the investigation or its results.(ii) It must be conducted by a tribunal that is independent of the state agents who may bear some responsibility for the death. (iii) The relatives of the deceased must be able to play an appropriate part in it. (iv) It must be prompt and effective. This means that it must perform its essential purposes. These are to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of state agents or bodies for deaths occurring under their responsibility. These features are derived from the Strasbourg jurisprudence, as analysed in the Middleton case and R (L(A Patient)) v. Secretary of State for Justice [2009] AC 588.”
The Court then considered the Claimant’s ground of unacceptable delay in light of the nature of the inquest. The Court noted that section 8(1) of the 1988 Act requires a coroner to hold an inquest as soon as practicable and that the procedural obligation under Article 2 ECHR includes the requirement for a prompt investigation. However, whilst the delay of 3 ¼ years between the deceased’s death and the date of the inquest was far from desirable, it was not uncommon. In the context of a complex medical inquest which, in due course, occupied a jury for 13 working days, the Court found that the delay which occurred was “not inappropriate, still less unlawful either in domestic law terms or in the context of article 2.”
