Feature | The duty to investigate deaths under human rights law: Part 2
15 July 2010
R (Humberstone) v Legal Services Commission  EWHC 760 (Admin) – Read case
Part 2 of Matthew Hill’s feature on the duty to investigate deaths under human rights law (read Part I).
A recent High Court decision (see previous post) concerning the funding of a party at a coroner’s inquest has highlighted the importance of distinguishing between the two different types of investigative duty that arise under Article 2 ECHR.
It is argued in this post that imprecise terminology and a failure to appreciate that Article 2 is engaged in Jamieson as well as Middleton inquests has confused this area, and that the learned judge in R (Humberstone) v Legal Services Commission  EWHC 760 (Admin) erred by eliding the investigative duties and the case-law from which they emerged.
H applied for a judicial review of the decision of the Legal Services Commission (“LSC”) not to recommend to the Lord Chancellor that she receive public funding for representation at the inquest into the death of her son (D). D had died, aged 10, of an asthma attack. H had been arrested on suspicion of gross negligence manslaughter, but was released without charge. Her arrest appears to have been triggered by concerns from health professionals about her historic management of her son’s asthma.
A number of other parties whose conduct may have been criticised, including medical professionals and agencies, were due to be represented at the inquest, some through public funds. The sitting coroner supported H’s application to the LSC on a number of grounds, including concerns about the seriousness of the allegations that she faced in respect of her son’s death, her inability to deal with the complex issues raised, and the question of equality of arms.
In his judgment, Hickinbottom J addressed two questions. First, was Article 2 engaged so that there was an obligation on the state to investigate the death? Second, was Article 2 breached because the lack of representation meant that there could not be an effective investigation into the death? He answered both questions in the affirmative and quashed the LSC’s decision.
It is my view that the learned judge misdirected himself on the first question by failing to distinguish between the two different investigative duties that arise from Article 2. This error highlights the unhelpful tendency to refer to and think of “Article 2” and “non-Article 2” investigations, especially in respect of coroner’s inquests.
The obligation to investigate under Article 2
Hickinbottom J interpreted Article 2 as imposing two obligations. The first, which he termed “the primary duty”, is that the state should not kill and should take appropriate and reasonable administrative and legislative steps to protect individuals from threats to their lives . He characterised “the secondary duty” in the following way :
“The obligation on a state under Article 2 also encompasses a duty, in some circumstances, to investigate a death. That has sometimes been phrased as a discrete procedural obligation to investigate, but …. more usually as part of the positive obligation to establish a framework of legal protection of the substantive right.”
It is in this paragraph that Hickinbottom J erred. Authorities from Strasbourg and the domestic courts have established that there are two distinct types of investigative duty imposed by Article 2. As imprecise or over-complicated terminology is one of the causes of misdirection in this field, this paper adopts the following definitions for the two duties in the hope that this will assist rather than compound the situation:
(i) “The general obligation”: The explicit, positive obligation under Article 2 to provide a legal system to protect life (part of what Hickinbottom J  refers to as the “primary duty”), requires a state to facilitate an effective independent judicial system to determine the cause of any death and, if necessary, to hold accountable those responsible for it. A state could not be said to have an effective legal system to protect life if citizens died without anyone establishing the cause of the death. This duty does not require the state toinitiate a particular investigation; its obligations are met by ensuring that there is a suitable system in place. However, in England and Wales, the traditional style of inquest, as considered in the case of R v HM Coroner for North Humberside and Scunthorpe, Ex p Jamieson, is a significant means by which the state meets this obligation.
(ii) “The enhanced obligation”: The courts have implied an obligation under Article 2 to carry out an effective investigation into credible cases in which the state’s primary duties under the Article may have been breached (e.g. if there are suspicions that state actors used force to kill). This obligation requires a state toinitiate the necessary proceedings. In addition to the criminal law (and in some cases public inquiries), the primary means of meeting this obligation in England and Wales is the enhanced type of inquest considered in the case of R (Middleton) v West Somerset Coroner.
These two different duties have produced separate streams of case-law about when the obligations are triggered and how they are to be discharged. By collapsing the distinction between the two duties, Hickinbottom J conflates these authorities and produces some very muddy waters.
At paragraph 49 of his judgment, the learned judge cited Lord Bingham’s much repeated observations as to the purposes of an “Article 2 investigation” in the leading case of R (Amin) v Secretary of State for the Home Department. These purposes include bringing the facts to light, exposing discreditable conduct or dangerous practices, and providing some degree of comfort to the deceased’s relative by ensuring that lessons are learnt from the death. Hickinbottom J continued :
“Given that wide span of function for an investigation, it is unsurprising – and clear – that the state may have a duty to hold an investigation into a death – or, rather, support a mechanism for investigation into a death – even where there is no reason to believe that state agents have failed to perform the primary duty imposed by Article 2… The state may be sufficiently implicated in a death to trigger the obligation of investigation even without any likelihood or even possibility of the state having breached its primary duty under Article 2 to preserve life.” [emphasis added]
His finding that the state has a duty to “hold” an investigation where there is “no reason to believe” state agents to be in breach of the positive obligations to protect life under Article 2 is directly contrary to House of Lords authority on the enhanced investigative duty, which was held to be “parasitic upon the existence of a substantive right”. Thus if there was no arguable breach of the state’s primary duty, there is no enhanced investigative obligation. However, Hickinbottom J was correct in saying that the state does have to “support a mechanism” for investigating any death. This is the general obligation, as set out above. The two types of investigation are distinct; notably Lord Bingham’s comments in Amin referred only to investigations in which the enhanced obligation was triggered.
Hickinbottom J also found :
“[T]he authorities are clear that the obligation – the secondary duty of the state under Article 2 – particularly arises when the deceased was in the special care of the state, for example when the deceased dies in custody or in a state hospital.” [emphasis added]
The leading authorities have explicitly and repeatedly ruled out the proposition that a death in a state hospital arising out of “mere” negligence involves a violation of the primary duty under Article 2. In such circumstances, and for the reasons given above, the absence of any breach of the primary duty means that the enhanced investigative duty is not triggered. In contrast, any violent death that occurs when an individual is involuntarily detained (be it in prison or under mental health legislation), does raise the possibility that Article 2 has been breached and hence the incident should be subjected to an enhanced investigation. It isdetention and not “special care” that triggers the enhanced investigative obligation. Where a patient dies in an NHS – or indeed a private hospital – as a result of “mere” negligence, the investigative obligation that arises is the general one.
It follows that in Humberstone Hickinbottom J misdirected himself by asking whether or not Article 2 was engaged. It undoubtedly was. The correct question was whether the investigative obligation was the general duty to provide a framework by which a death can be examined, or the enhanced duty on the state to initiate its own investigation in a way that is compatible with the principles set out in Amin and other cases. Given his finding of fact that “there was no actual or possible breach of the state’s obligations under Article 2 [, t]here was at most a possibility of simple negligence” it is submitted that the correct answer to the correct question was that only the general obligation was engaged.
The breach of Article 2 and the need for an effective investigation
Hickinbottom J made a number of observations as to the criteria for determining public funding at inquests in cases where, in his analysis, “Article 2” was engaged. These included: (i) emphasising that there should not be a formulaic approach when assessing claims for funds [57-58]; (ii) that no single factor (such as legal/factual complexity) can be determinative in all cases ; (iii) that the views of the sitting coroner were“worthy of particular consideration” ; (iv) that the absence or limitations on public funds were not relevant considerations ; (v) that the LSC had a wide but not unlimited discretion ; (vi) that in general the Lord Chancellor’s Guidance was in line with the domestic and Strasbourg authorities ; (vii) that in the overwhelming majority of cases a coroner will not require the family to be represented in order to carry out an effective inquiry . It is submitted that while these observations might be appropriate to an inquest under the enhanced duty, the learned judge’s failure to distinguish between the two types of investigative obligations and the different streams of case-law that they have created means that any wider validity and application that these points might have had is fatally undermined.
The question then arises as to what difference, if any, is made in the present case if the general, and not the enhanced, investigative duty is engaged – in short, could the Claimant still obtain public funding for representation at the inquest? It is submitted that in the particular circumstances of this case, she could.
As is considered above, a state can meet its general investigative obligation by providing a system whereby a death can be examined. It is not under a duty to initiate the investigation itself and therefore it may be enough that an allegation of, say, medical negligence can be pursued through the civil courts. It could be argued that as the state is not required to initiate the investigation then it cannot be obliged to fund any party’s costs of representation. It would follow from this that the Claimant’s case would fail, at least in respect of the Article 2 arguments.
However, both the Strasbourg and domestic courts have made it clear that whatever system is in place, the investigation must be practical and effective – a theoretical possibility of a future civil action is not sufficient. It follows that the role and requirements of a coroner’s inquest will vary depending on what other investigative steps have occurred or will occur. In the present case the inquest is, it seems, of central importance. The criminal investigation did not lead to charges, and as the death was that of a child there is limited financial incentive to pursue a civil action in negligence. Further, the coroner’s concern about the Claimant being unrepresented arose primarily out of the possibility that she would not be in a position to defend herself against the allegations of others, something that will not be cured if she pursued her own civil action later. It is submitted that in these circumstances the effectiveness into D’s death rests on the inquest, and the effectiveness on the inquest requires H to be represented.
This is not to say that there is no difference between requirements of the general and the enhanced investigative obligations when it comes to funding parties at inquests. In other cases a future civil action may be both more realistic and more likely to solve all issues in the case. In such circumstances, the question of whether the state is required to initiate the investigation (under the enhanced duty) or merely to facilitate it (under the general obligation) could determine whether or not a party is funded at an inquest. While the different obligations can impose the same requirements, they will not always do so and hence it becomes still more important to identify carefully which duty is engaged.
Humberstone illustrates a number of important aspects to the investigative obligations under Article 2. First, it demonstrates by default that there are obligations, in the plural. Second, it shows the importance of establishing at an early stage which of the duties is triggered. Third, the analysis presented here suggests that the differences between the two types of investigation – and hence between Middleton and Jamieson inquests – should not be over-stated, as the same requirements can arise under both (although this will not necessarily be the case).
Finally, Humberstone provides a warning about the unhelpful and imprecise terminology that has developed in this area. Hickinbottom J’s initial question of whether or not “Article 2 was engaged” is one that he is not alone in posing. In any investigation into any death Article 2 is engaged. What is relevant to the legal analysis and the practical steps that follow is whether it is the general or the enhanced obligation that is triggered. Only when that question has been answered can the legal requirements of the investigation, such as the need for representation of the next of kin, be identified.
- Part 1 of this feature
 Dodov v Bulgaria, (2008) 47 EHRR 41 ; Vo v France (2005) 40 EHRR 12, [90-91]; Application No. 32967/97 Calvelli and Ciglio v Italy, 17 January 2002 ; Powell v UK (2000) 30 EHRR CD362, 
 R (Smith) v Secretary of State for Defence  EWCA Civ 441, 
  QB 1, CA
 See, for example, McCann v UK (1995) 21 EHRR 97, ; Edwards v UK (2002) 35 EHRR 487, ;Jordan v UK (2001) 37 EHRR 52, , R (Amin) v Secretary of State for the Home Department  1 AC, HL, 
 Smith  EWCA Civ 441, 
  UKHL 10, . See also: R (Khan) v Secretary of State for Health  EWCA Civ 1129, ; R (Takoushis) v HM Coroner for Inner North London and others  EWCA Civ 1440, 
  1 AC, HL 
 R (Gentle and another) v The Prime Minster and others  UKHL 20, . See also the Court of Appeal judgments in R (Allen) v HM Coroner for Inner North London  EWCA Civ 623, [14-16] and R (Amin) v HM Coroner for West Somerset  EWCA Civ 390,  (which was overruled by the House of Lords on other points)
 Powell (2000) 30 EHRR CD362, pp17-18; Savage v South Essex Partnership NHS Foundation Trust UKHL 74, ; Takoushis  EWCA Civ 1440, -; Richard Rabone v Gillian Rabone and Pennine Care NHS Trust  EWHC 1827 (QB), [77-82]. Since the decision in Humberstone, these authorities have been reinforced by the decision in Rabone v Pennine Care Trust  EWCA Civ 698, [62-67].
 R (Sacker) v HM Coroner for West Yorkshire  UKHL 11, ; Takoushis  EWCA Civ 1440, ; see also, in a different but related context, Rabone  EWHC 1827 (QB), 
 R (Khan) v Secretary of State for Health  EWCA Civ 1129, considered.
 The Claimant would still be able to pursue a case on “traditional/domestic” public law principles.
 Dodov (2008) 47 EHRR 41, ; Takoushis,  EWCA Civ 1440, [99-100]
 See, for example, Dyson LJ in R (Allen) v HM Coroner for Inner North London  EWCA Civ 623,