In June 2018 the government announced that some bereaved families should find it easier to access legal aid funding for representation at inquests. The updated guidance issued by the Lord Chancellor allows caseworkers to waive the financial means test “for cases where the state has a procedural obligation to hold an inquest under Article 2”. The state’s Article 2 procedural obligation arises in one of two ways:

  1. It arises automatically for inquests into deaths which took place in state custody.
  2. In inquests where it is arguable on the evidence that substantive duties under Article 2 have been breached in relation to the death. We discuss below what is meant by ‘substantive duties under Article 2’.

This means that the family of an individual who dies in the care of the state is more likely than before to be awarded legal aid funding in order to pay for legal representation at the inquest. However, as discussed in our recent blog, the government recently announced that it won’t be introducing non-means tested legal aid for inquests where the state has representation.

The inquest process is far from straightforward, and one of the most obvious questions that arises from these developments is: what is an Article 2 inquest and what difference does this make to the inquest procedure?


Article 2(1) of the European Convention of Human Rights states: “everyone’s right to life shall be protected by law”. This right places two substantive duties on member states:

  1. a negative obligation to refrain from taking life
  2. a positive obligation to take appropriate measures to safeguard life.  

This positive obligation has had a major impact on the inquest process.  In general, in order to comply with Article 2, the state must set up a judicial system which, as a whole, enables any citizen to access an independent, practical, and effective investigation of the facts of anydeath. This is sometimes referred to as the ‘general duty’.

The state must also put in place systems for the protection of life generally and, in certain circumstances, is under an ‘operational duty’ to take steps to protect someone from a known risk to life. These are referred to as Article 2 substantive duties.

It is out of these substantive duties that the Article 2 procedural duty arises. This is an enhanced duty to carry out a thorough, independent and effective investigation into a death. This does not have to be done through an inquest. A death can be investigated in other ways as long as it satisfies some minimum requirements such as that that it is independent, effective, prompt and involves the family of the deceased. However the usual way in which this duty is complied with is by way of an Article 2 inquest.

A coroner will confirm that an inquest is an Article 2 inquest for one of two reasons:

1. Deaths in state custody

An inquest will automatically be an Article 2 inquest if the death took place in state detention. This is because there must be an effective investigation into the circumstances of death where evidence suggests a potential breach of the duty to protect the lives of those under state care. A death is considered to be in state detention if an individual is detained by the police or prison services. Ordinarily deaths in hospitals are not considered to be deaths in state custody. In order for Article 2 to be engaged for a hospital death, there would have to be evidence of systemic failures of processes and systems to protect life. A case of ordinary medical negligence would not trigger the specific Article 2 procedural duty, as recently confirmed in the case of Parkinson [2018] 4 W.L.R.

2. Possible breach of a substantive Article 2 duty

An inquest must be an Article 2 inquest if it appears to be arguable on the evidence that substantive duties under Article 2, referred to above, have been breached in relation to a death. For example, if there is evidence that the state has failed to take steps to protect individuals from an appreciable ‘real and immediate’ risk to their lives then Article 2 is engaged and an inquest in these circumstances should proceed as an Article 2 inquest.

Osman v UK (2000) 29 EHRR 245


All inquests must comply with Section 5(1) of the Coroners and Justice Act 2009 which sets out that the purpose of a coroner’s investigation into a person’s death is to ascertain: (a) who the deceased was; (b) how, when and where the deceased came by his or her death; and (c) certain formal particulars which need to be registered concerning the death.

Historically, the task of ascertaining ‘how’ the deceased came by his or her death had been understood narrowly as meaning “by what means”. However, in the case of R (Middleton) v West Somerset Coroner in 2004 the House of Lords held that in order to comply with the state’s obligations under Article 2, the purpose of the investigation extends to ascertaining “in what circumstances” the deceased came by his or her death. This is how Article 2 inquests came to be called Middletoninquests.

As already mentioned above, all inquests must comply with the general duty which requires an independent, practical and effective investigation of the facts of any death.

For some inquests these requirements can mean in practice that there is not much difference in scope between an Article 2 and a non-Article 2 inquest. The requirement for an ‘effective’ investigation means that for any unexpected or unexplained death the coroner must properly consider the circumstances of that death. A properly conducted inquest will therefore need to be sufficiently thorough regardless of whether or not Article 2 is engaged, as we have discussed before.

Often however an Article 2 inquest will involve a higher level of scrutiny than a non-Article 2 inquest. Most obviously, in order to satisfy the procedural duty referred to above, the coroner will be under an enhanced duty to ensure that there is a detailed and transparent investigation fully involving the bereaved family.

In addition, many Article 2 inquests are likely to be held with a jury due to the operation of s7(2) of the Coroners and Justice Act 2009 which states that an inquest must be held with a jury if a coroner has reason to suspect that the deceased died in state custody and the death was violent or unnatural or the cause of death is unknown. Inquests which involve a jury may end up being longer than a non-jury inquest for various reasons not least the need to ensure that the jury have understood the evidence and have time to come to a verdict.

The main difference between an Article 2 and non-Article 2 inquest is that an Article 2 inquest may conclude with an expanded form of narrative conclusion rather than a short form conclusion. The increasing complexity of Article 2 inquests was recently highlighted by the decision in Tainton [2016] 4 W.L.R. 157 where the court held that admitted failings in a prisoner’s medical care should be recorded as part of the Record of Inquest even though they were not causative. This was in order to satisfy the state’s procedural duties under Article 2.


The Legal Aid, Sentencing and Punishment of Offenders Act 2012 allows for legal aid to be granted only for Article 2 inquests or where there is a wider public interest reason for legal aid to be granted. This means that it is important for family members to obtain from the coroner confirmation that Article 2 is engaged. However, even if this confirmation is obtained, this is no guarantee that legal aid funding will be provided, as was the case in the Westminster Bridge inquest.

The Lord Chancellor’s Exceptional Funding Guidance for inquests justifies the lack of generally available funding for representation at inquests on the grounds that inquests are generally a ‘relatively informal inquisitorial process, rather than an adversarial one’. In strict legal terms this is true but in reality, many families will find inquests to be formal and adversarial processes regardless of whether or not Article 2 is engaged.

The case for widening legal aid provision to ensure all bereaved families can be properly involved in inquests is strong and yet despite this the MoJ’s position remains that provision of legal aid funding for inquests will not be widened as confirmed in the Final Report on the Review of Legal Aid for Inquests in February 2019.