Divisional Court gives guidance on article 2 inquests

5 November 2020 by Matthew Hill

R (Peter Skelton and anr) v Senior Coroner for West Sussex [2020] EWHC 2813 (Admin) — Judgment here.

Susan Nicholson and Caroline Devlin were killed by the same man during the course of abusive relationships. They died in 2011 and 2006, but the man was not convicted – of murder and manslaughter respectively – until 2017.  The inquest into Susan’s death in 2011 resulted in a verdict of accidental death. Following the murder conviction, the Coroner applied to the High Court for this to be quashed, with the intention of holding a short inquest at which a fresh conclusion of “unlawful killing” would be recorded. However, the Claimants in this case – Susan’s parents – sought to expand the scope of the inquest to consider what they thought, understandably, were police failings. They were successful; this blog explains why, and examines the wider implications of the ruling.

Breaches of article 2

The Claimants argued that the inquest should be expanded as there were two arguable breaches of article 2 ECHR (the right to life) in the case.

The first was a failure by the police to conduct an effective investigation into the death of Caroline; had this been done, they argued, Susan’s murderer would have been convicted at an earlier stage, thereby protecting her life. Under article 2, the state has a duty to investigate all deaths in order to protect the lives of its citizens. The degree of investigation will vary, from basic death certification by a doctor to a full criminal investigation. In the recent case of DSD v Commissioner of Police of the Metropolis [2019] AC 196 the Supreme Court held that in investigations of crime involving the loss of life, operational failings within an investigation could amount to a breach of article 3 (and, by extension, article 2). However, for a breach to be identified a certain threshold of seriousness has to be met. Unhelpfully, that threshold was expressed in a number of different ways. In the present case, Popplewell LJ and Jay J held that the best formulation was that of Lord Neuberger: a “seriously defective” investigation would breach articles 2 or 3. Such a breach could be cumulative or a single failing [57].

The second argument advanced by the Claimants was that the police had failed to protect Susan’s life in the face of the threat posed by her murderer. Here, they relied on the well-established Osman duty imposed by article 2. Such a duty arises where (1) the authorities know or ought reasonably to know of (2) a real and immediate risk to life, which (3) requires them to take measures which could reasonably be expected of them to avoid such a risk. The Court noted that this was a “stringent” test, and set out the matters that courts have considered to be relevant to it over the years [53].

Having identified these two duties under article 2, the Claimants had to establish that they were relevant to Susan’s death (which does not seem to have been disputed), and that it was arguable that article 2 had been breached. This test is a low one, meaning that there was a “more than fanciful” or “credible” suggestion of a breach: see R (AP) v HM Coroner for the County of Worcestershire [2-11] EWHC 1453 (Admin), [60]) and R (Muriel Maguire) v HM Senior Coroner for Blackpool and Fylde [2020] 738 [75]. This is to ensure that article 2 is effective, as any arguable breach requires examination. In England and Wales, an inquest is the usual place for such scrutiny [62].

In respect of Susan’s inquest, the Coroner had been unpersuaded that there were arguable breaches of article 2, and it was this decision that the High Court had to consider.

The first question it had to address was the scope of its jurisdiction. Was it (as the Claimants argued) taking the decision afresh, on the basis that the question of whether or not there was an arguable breach of article 2 was a matter of law that would only allow for one correct answer? Or was it applying traditional judicial review principles, where the court refrains from considering the merits of the decision and focusses on whether the process by which it was reached was rational, fair and lawful, resulting in a decision that was reasonably available to the person or body that made it?

The Court provided a helpful and succinct summary of the competing authorities [69] to [86], before concluding that it did not really matter in the present case. It did not accept the “high watermark” of the Claimants’ submissions that – whatever the context – the question of whether or not there was a breach of a convention right would always be a hard-edged question of law [87]. In the present case, the theoretically correct approach would be that of “anxious scrutiny” (judicial review on steroids), but given the circumstances, the result would be the same as if it were a straight legal question: the High Court must ask itself the same question as the Coroner (whether there was an arguable breach of article 2), using the same evidence (there being no dispute of fact), and while it would take into account the Coroner’s reasoning this was not an area in which particular deference had to be shown to her expertise. In short, the Coroner was either right or wrong, and the High Court had to decide which [87 – 93].

Having considered its approach, the Court then evaluated the evidence. It found that it was arguable that there had been a breach both of the duty to investigate Caroline’s death, and of the Osman duty to protect Susan. The Court stressed this was not a finding that there had been a violation of article 2, just an acceptance that there was enough evidence to show that it was arguable, and hence that these matters should be considered at the fresh inquest [94 – 106].

The Court then had to consider a cross-application from the murderer. He submitted that the fresh inquest should examine whether Susan was in fact unlawfully killed. The effect would have been to allow him to argue his innocence and invite a finding from the inquest that would call into doubt his criminal conviction. This was dismissed on both procedural and substantive grounds.

The Court found there was no statutory provision that forbade this, as there would have been had the inquests merely been suspended, rather than quashed: see s. 11 and sch.1, para. 8 of the Coroners and Justice Act 2009. However, common law principles were sufficient to prevent it from happening. The Coroner had a discretion as to the scope of her inquest and she had been entitled to rule that it would not consider the murderer’s purported innocence. Indeed, it would have been unlawful for her to have decided otherwise, both on Wednesbury and Padfield grounds – i.e. it would have been so unreasonable as to have been unlawful, and would have violated the principle that a public body can only use it statutory powers to promote the purpose and policy of the statute from which they derive (in this case the 2009 Act). It would not be appropriate for a coroner to allow her inquest to be used as a forum for a convicted murderer to have a “second go” at establishing his innocence. Nor, it should be added, is it a forum for the police to have a “second go” at proving criminal guilt: see R v HM Coroner for Derby and South Derbyshire, ex parte Hart Junior (2000) 164 JP 429.

Conclusions

The judgment helps to provide a checklist for use when claimants seek to use article 2 to expand the scope of inquests. First, identify clearly what the alleged breaches are, by reference to the applicable thresholds (such as a “serious” failure to investigate, or the Osman test). Second, consider whether they require the attention of an inquest, including by asking whether they are causally relevant to the death, and whether they have been fully investigated before. Third, examine the evidence of why it is arguable that article 2 has been breached. Fourth, invite the court to consider the matter with “anxious scrutiny”, keeping in mind that (as in this case) this may be akin to taking the decision afresh as there may be only one rational answer.

Such an approach should assist courts and coroners in ensuring that inquests fulfil their important role in meeting the state’s duty under article 2 to investigate – and hence protect – life. It is to be hoped that in this case the inquest that will now follow may contribute to the prevention of further deaths in circumstances similar to those of Susan Nicholson and Caroline Devlin.

Matthew Hill is a barrister at 1 Crown Office Row. He tweets at @HelfigHill.