Public Inquiries and Survivors: an in-depth look at the JR challenge to the Manchester Arena Inquiry

17 August 2020 by

A recent decision of the High Court concerning the Manchester Arena Inquiry highlights an interesting question about public inquiries, the role of survivors and the protections offered by the European Convention.

In its judgment in R (EA and another) v Chairman of the Manchester Arena Inquiry [2020] EWHC 2053 (Admin), the High Court refused permission for judicial review of the decision not to designate a group of survivors as core participants in the Manchester Arena Inquiry.

A succinct summary of the decision and its context is set out by Matthew Hill here. As he explains, permission was refused on a number of grounds, including that the challenge was brought late. But it is the Court’s analysis of the obligations imposed by Articles 2 and 3 of the European Convention on Human Rights (“ECHR”) which is of interest to this article.


On 22 May 2017, towards the end of an Ariana Grande concert at the Manchester Arena a suicide bomb exploded, resulting in the deaths of 22 innocent people, with many others being injured. It was the deadliest terrorist attack in the United Kingdom for a decade. A police investigation was launched which ultimately resulted in the conviction of the suicide bomber’s brother, Hashem Abedi.

Inquests were opened into the deaths of the 22 who were killed, but adjourned pending the outcome of the criminal investigation.

Once the inquests got underway, the Coroner held that the investigative duty under Article 2 ECHR was engaged due to potential violations of the substantive duty on the state to protect life.

However, as is increasingly common in such inquests, sensitive material was of central relevance but could not be considered in the open proceedings required by the coronial process. The Home Secretary was invited to establish a public inquiry under section 1 of the Inquiries Act 2005. (Other inquests have converted to, or progressed into, public inquiries on this basis including the Azelle Rodney and Alexander Litvinenko inquiries. Indeed, a similar development may occur in the Dawn Sturgess inquest, see further here.)

The decision under challenge

The Manchester Arena Inquiry was established in October 2019 with the following Terms of Reference:

To investigate how, and in what circumstances, 22 people came to lose their lives in the attack at the Manchester Arena on 22 May 2017 and to make any such recommendations as may seem appropriate.

The Chairman of the Inquiry, Sir John Saunders, considered applications for core participant (“CP”) status, including by 56 survivors of the attack. This would entitle the group to disclosure, to ask (or apply to ask) questions of witnesses and to make opening and closing statements at the hearings.

In the exercise of his discretion, the Chairman decided not to designate the survivors as core participants, and the decision was challenged by way of judicial review.

Permission refused

The High Court refused permission for a number of reasons, including that the application was brought too late, and an extension of time should not be granted. Although that was sufficient to dispose of the application, the Court also refused the application in light of the scope of the Inquiry and the nature of the obligations arising out of Articles 2 and 3.

Articles 2 and 3: the Investigative Obligation

Article 2 provides for the right to life:

Everyone’s right to life shall be protected by law.

Article 3 provides for the prohibition on torture:

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Both articles include substantive obligations on the state: (i) a negative obligation to refrain from taking life/subjecting a person to torture or inhuman or degrading treatment, and (ii) a positive obligation to take appropriate measures to safeguard life/against torture or inhuman or degrading treatment (see, in particular, Osman v United Kingdom (2000) 29 EHRR 245).

The investigative obligations under these Articles arise where there has been an arguable breach of a substantive obligation (Article 2: McCann v United Kingdom (1995) 21 EHRR 97; Article 3: Rantsev v Cyprus and Russia [2010] 51 EHRR 1 and DSD and NBV v Commissioner of Police for the Metropolis [2016] QB 161).

Interestingly, the investigative obligation under Article 2 can also arise in cases where an individual has nearly died and suffers serious injuries (for example, a near-suicide of a prisoner in custody: R (JL) v Secretary of State for Justice [2009] 1 AC 588).

Sliding Scale of Obligations

The investigative obligations imposed by Articles 2 and 3 are not uniform. There are a number of ‘minimum standards’ for such an investigation, such as independence, effectiveness or thoroughness, promptness and sufficient level of public scrutiny (see Jordan v United Kingdom (2003) 37 EHRR 2; R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653). But the flexibility granted to the state in the way the investigation is conducted depends on the nature and severity of the arguable breach.

It is not, as argued by the Claimants in this case, the seriousness or gravity of the incident that dictates the level of investigation. Rather, it is the seriousness of the alleged breach of the substantive obligation under Article 2 or 3 which results in a more stringent investigative burden.

The most serious breach, where a death is caused by state agents, has the most stringent procedural obligations. The next category is where individuals die within the control of the state, whether in prison, immigration detention, detention under the Mental Health Act or as conscripts. Where the state has assumed responsibility for an individual’s welfare and safety (as in Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72), the degree of responsibility will depend on the measure of control exercised by the state. Towards the bottom end of the spectrum are deaths caused by non-state actors in the community, ie outside the immediate control of the state.

The attack on the Manchester Arena falls in the final category. While there were arguable failings by the police and security services to assess risks and prevent the attack, the deaths and injuries were caused by a non-state actor in the community, and thus indicate a relatively low level of culpability on the part of the state.

The same spectrum of investigative obligations under Article 2 exists under Article 3. However, cases resulting in death are more serious than non-fatal cases. As Lord Brown said in JL [105]:

Calamitous though near-suicide cases may be, death adds a further dimension of gravity.

In fatal Article 2 cases, the involvement and full participation of the bereaved family is almost always required, although there is a degree of flexibility depending on the overall assessment of the investigation (see Tunc v Turkey [2016] Inquest LR 1, and Ramsahai v Netherlands (2008) 46 EHRR 43). The family’s involvement is not an end in itself but a tool to ensure the effectiveness of the investigation.

Survivors and the Scope of the Inquiry

The High Court held that it was not arguable that Articles 2 or 3 required the participation of the survivors by way of a grant of CP status.

1. The Scope of the Inquiry

The Terms of Reference (set out above) which govern the Inquiry and limit its scope focus on how 22 people came to lose their lives. There is no mention of investigating those who were injured but survived. Any investigation into the survivors’ injuries would be outside of the scope of the Inquiry’s powers unless it was incidental to the investigation into the 22 deaths.

Even if Articles 2 or 3 mandated the involvement of the survivors, the Inquiry is limited by its Terms of Reference and established to look at the 22 deaths (originating in 22 inquests). It was not established in order to satisfy all of the state’s investigative obligations under the Convention.

There had already been a number of investigations into the attack, not least the criminal investigation and conviction of Hashem Abedi. Lord Anderson QC conducted an assessment of the internal MI5 and Police reviews on the attacks in London and Manchester in March-June 2017 and Lord Kerslake conducted a review of the preparedness for, and emergency response to, the Manchester Arena attack.

2. Convention obligations

To satisfy the investigative obligations under Articles 2 or 3, the involvement of the survivors as core participants was not mandatory. This case fell near the bottom of the sliding scale in terms of gravity and, as such, the state is afforded a significant degree of flexibility. Where the bereaved families have active participation as core participants, it is perhaps unsurprising that the High Court was reluctant to interpret Articles 2 or 3 as requiring that the survivors also have CP status. The decision was one which fell within the discretion of the Chairman of the Inquiry as to how an effective and thorough investigation could be achieved.

3. Rationality

The Chairman decided not to grant the survivors CP status. In his ruling, he concluded that it was not required for a thorough and effective investigation. There was a direct overlap between the survivors’ interests and perspectives and those of the bereaved families who are CPs and legally represented. The survivors’ participation was possible without them being designated as CPs. The grant of CP status would actually result in delay, lengthen the hearings and would increase costs. Notably, a number of the bereaved families opposed the application for fear that it may dilute the central role of the bereaved families and their loved ones. 

That is not to say that the survivors would not be important to the Inquiry. Their evidence as to their experiences, their understanding of the movements of the attacker, the emergency response, and the security on-site would be important and informative contributions. Indeed, the Chairman invited the survivors to attend further interviews with the police and if necessary, be provided funding for legal assistance for that interview. He encouraged them to engage with the Inquiry team and some survivors would be called as witnesses.

Rule 5 of the Inquiry Rules 2006 gives the chairman a discretion to designate a person as a core participant. This decision fell within that discretion and could not be faulted by the High Court.

Survivors and public inquiries

For many of those who survived the attacks, their lives will have been irreparably changed. As the Home Secretary recognised in her press statement when the Inquiry was established:

It is vital those who survived or lost loved ones in the Manchester Arena attack get the answers that they need and that we learn the lessons, whatever they may be … This process is an important step for those affected as they look to move on from the attack and I know that they want answers as quickly as possible.

At first blush, it seems artificial to distinguish between the families of those who died, and those who survived but suffered life-changing injuries. Both have a real need for answers.

The answer lies in the nature of the investigation. The Manchester Arena Inquiry has stepped in to fulfil the role which would have been played by the coronial process but for the need to look at sensitive documents. The Terms of Reference reflect those origins. Articles 2 and 3 provide safeguards to ensure an effective investigation, without guaranteeing the involvement of survivors as core participants.

It is hoped that, despite this ruling, those who survived the attack will still feel involved in the process and able to obtain the answers they seek. It is overwhelmingly likely that their key questions and lines of enquiry will be put forward by those representing the bereaved families and also by the Inquiry team itself. However, the consequence of the judgment is that survivors who wished to play an active role in the Inquiry will not be able to do so; at least not directly. While there is a clear legal and practical rationale for this, it will cause great – and understandable – disappointment to those who sought direct involvement in the investigation into the events that have changed their lives forever.

Gideon Barth is a barrister at 1 Crown Office Row

1 comment;

  1. Peter James Hargreaves says:

    A good article. The decision is hard – if not impossible – to explain to people on the streets of Manchester.

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