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R (Ferguson) v HM Assistant Coroner for Sefton, Knowlsey and St Helens [2025] EWHC 1901 (Admin) concerned a challenge by the next of kin of Joseph Farley, who died after jumping from the fourteenth floor of a carpark. The Coroner conducting mr Farley’s inquest has determined that Article 2, ECHR, did not apply and that the inquest could be heard without a jury. Mr Ferguson challenged both of these decisions by way of judicial review.
In a thorough and detailed judgment upholding Mr Ferguson’s challenge, Mrs Justice Hill gave a useful restatement of the law on Article 2, as well as a useful illustration of how it applies if difficult and complex fact patterns. The judgment also contains helpful clarification on the different sorts of causation tests that apply to parts of the Coronial process.
Deb and Graham characterise my argument as follows: “the right to life under Article 2 is absolute and allows no exception; there is a negative obligation upon the UK not to take life; any euthanasia laws would necessarily involve the taking of life; therefore euthanasia laws would breach Article 2.” They then point out that this argument has been rejected in Mortier v Belgium.
The problem is that this completely mischaracterises my argument and as result Deb and Graham dedicate several paragraphs to attacking a strawman. My argument was much narrower than they claim. As I explained in my blog post the “negative obligation prohibits the State from conducting euthanasia and assisted suicide itself, even as part of a well-regulated scheme with appropriate safeguards. This means that, under the Convention, States may allow/tolerate private parties from conducting euthanasia/assisted suicide with appropriate safeguards but the State itself cannot conduct them.” (emphasis added)
There are many well-tuned arguments both for and against the liberalisation of the UK’s strict euthanasia laws, some more helpful than others. This piece is not concerned with weighing up the policy arguments for or against such a move, nor does it consider which “side” of the argument is ultimately more convincing. Indeed, the authors do not necessarily agree with one another on the discrete question of whether Kim Leadbeater MP’s Bill should be supported.
But one curious argument has recently emerged which is of serious concern to both authors: the argument that liberalising euthanasia laws, in line with the proposed changes in Leadbeater’s Bill, should be resisted, as doing so would be to contravene the rights under the European Convention on Human Rights (ECHR). In this post, we seek to debunk this argument.
There are, we think, two main variants of ECHR-based arguments to this effect: one invoking Article 14 (freedom from discrimination) and the second relying on Article 2 (right to life). Neither is convincing.
In this guest post, Rajiv Shah argues that the provision of assisted suicide in the England and Wales via the NHS would constitute a substantive breach of the negative obligation imposed on the State under Article 2 of the ECHR.
Introduction
Article 2 of the ECHR protects the right to life. That article contains two distinct substantive obligations: “the general obligation to protect by law the right to life, and the prohibition of intentional deprivation of life, delimited by a list of exceptions.” (Boso v Italy, at [1])
That first obligation is a positive one and requires States to take steps to protect life from third parties and even from individuals themselves. The precise content of that obligation is necessarily nebulous and the Court affords States a margin of appreciation in deciding what that obligation requires, and how it is to be fulfilled. So, in two recent Chamber decisions – Mortier v Belgiumand Karsai v Hungary – the Strasbourg Court held that this positive obligation does not require States to forbid assisted suicide and euthanasia, but that if it does want to allow it, it must create legal safeguards to ensure that the decision of individuals to end their own life/or be killed by third parties is freely taken.
In Sammut v Next Steps Mental Healthcare Ltd and Greater Manchester Mental Health Foundation Trust[2024] EWHC 2265(KB), HHJ Bird sitting as a judge of the High Court gave summary judgment in favour of the first defendant in a claim against a care home brought on behalf of the estate of a mental health patient for breach of ECHR Article 2. HHJ Bird held that the care home was not engaged in public functions for the purposes of section 6 of the Human Rights Act 1998 and was not a public authority. Further, the alleged breach of Article 2 was in reality no more than an allegation of clinical negligence outwith the scope of Article 2.
In Dillon [2024] NIKB 11, the controversial Northern Ireland Troubles (Legacy and Reconciliation) Act 2023 (Legacy Act) was challenged head on. The Court disapplied a number of provisions of the Act as being in breach of relevant aspects of EU law which continue to apply to Northern Ireland via the Windsor Framework. We have covered the precise EU law aspects of Dillonelsewhere and will only cover the ECHR elements of the judgment in this post. As will become clear, however, there is a critical link between these two main aspects of the judgment.
The disapplication of any part of an Act of the UK Parliament is infrequent enough to be notable. Given that Dillon marks not only some of the most extensive disapplication in history but also is the first such event after Brexit, the decision is significant. But, as we will demonstrate, the decision is not radical. Far from it, much of Mr Justice Colton’s 738-paragraph judgment is an orthodox application of the relevant law.
The advent of the Human Rights Act 1998, and the incorporation into domestic law of the Article 2 right to life, has transformed coronial investigations and inquests over the last two decades. Lord Bingham’s magisterial creation of the ‘enhanced’ investigation and conclusion in R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (later adopted by Parliament) gave coroners greater responsibility to hold the state to account for deaths. That, in turn, has significantly improved the ways in which all inquests are conducted, not just those where Article 2 is found to be engaged. Inquests are no longer haphazard affairs. They are (ordinarily) carefully planned and structured processes; and their participants, the ‘interested persons’, are far more involved in assisting coroners with the task of identifying the proper scope of their investigations and the lawful ambit of their conclusions.
Article 2, then, has already conquered and occupied the terrain of the coroners’ courts and it is only at the frontiers of its application that legal skirmishes still occur. One such fight is the case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde and another [2023] UKSC 20, which was argued before the Supreme Court on 22nd and 23rd November 2022, and in which judgment was given on 21st June 2023.
The central issue in the case was whether Article 2 required an enhanced inquest into the death of highly vulnerable woman, Jackie Maguire, who had become seriously unwell while in a private residential care home and had later died in hospital. The Supreme Court held unanimously that it did not. More importantly, in doing so, it took the opportunity to provide a detailed and authoritative account of how Article 2 applies to coronial investigations and inquests.
In R (Morahan) v HM Assistant Coroner for West London [2022] EWCA Civ 1410, the Court of Appeal robustly rejected a challenge to the earlier decision of the Divisional Court that Article 2 did not apply to drug related death of a voluntarily admitted psychiatric patient.
The deceased had died in her own flat in July 2018 whilst under long-standing psychiatric care for schizophrenia. At the time she was a voluntary patient in a unit operated by the Central and North West London NHS Foundation Trust who had failed to return to the unit when expected She had a history of illicit drug taking but had been abstinent from drugs for many months before her death. She had failed to return to the unit when expected. As noted by the Lord Chief Justice (delivering the judgment of all the court) at [3] there was no basis for suggesting that she had taken her own life.
In R (Gorani) v HM Assistant Coroner for Inner West London [2022] EWHC1593 (QB), a Divisional Court comprising Macur LJ and Garnham J rejected on all grounds a wide-ranging challenge to the conduct of in inquest into a suicide. Of particular interest were the Court’s observations on the effect of a finding that the investigative duty under article 2, ECHR was engaged, and their clarification that a coroner does not need to hear submissions before refusing to make a ‘preventing future deaths’ report. That said, it is a broad and interesting judgment and deserves reading in full by those with an interest in coronial law.
In R (Patton) v HM Assistant Coroner for Carmarthenshire and Pembrokeshire [2022] EWHC 1377 (Admin), Mrs Justice Hill quashed a ruling that the Article 2 general (or systemic) duty has not been potentially engaged by the death of Kianna Patton.
Kianna had been found hanging aged 16 at a time when she was under the care of Specialist Child and Adolescent Mental Health Services with a history of self harm. She was living with a friend, whose mother had let her use cannabis. This caused her mother (the Claimant) significant anxiety, given Kianna’s mental health issues. Her mother sought assistance in relation to Kianna from social workers and Police officers before her death. She believes there were serious failings in the way they responded and in the care S-CAMHS provided to Kianna. Following the Coroner’s ruling that Article 2 was not engaged, a Health Board’s report that was disclosed identified several issues with care delivery and the way that Kianna’s risk had been assessed, in particular, noting that safeguarding screening had not been completed once it was identified that she was no longer living at home.
The High Court (Bean LJ and Garnham J) held in R (Gardner) v Secretary of State for Health [2022] EWHC 967 (Admin) that the Government’s March 2020 Discharge Policy and the April 2020 Admissions Guidance were unlawful to the extent that the policy set out in each document was irrational in failing to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should, so far as practicable, be kept apart from other residents for 14 days.
About 20,000 residents of care homes in England died of COVID-19 during the first wave of the pandemic in 2020. Two of them were Michael Gibson, father of the First Claimant, and Donald Percival Maynard Harris, father of the Second Claimant. Mr Gibson died in a care home in Oxfordshire on 3 April 2020; Mr Harris in a care home in Hampshire on 1 May 2020.
The Issues
The Claimants sought declarations that particular policies of the Defendants (the Health Secretary, NHS England and Public Health England) during the relevant period constituted breaches of their fathers’ rights under the European Convention on Human Rights, or alternatively were unlawful and susceptible to judicial review on common law principles.
Tanya Morahan had a history of paranoid schizophrenia and harmful cocaine use. From mid-May 2018 she was an inpatient at a rehabilitation unit operated by the Central & North West London NHS Foundation Trust. She was initially detained under s.3 of the Mental Health Act 1983 but on 25 June 2018 the section was rescinded. On 30 June 2018 Tanya left the unit but didn’t return until the next evening, 1 July. On the afternoon of 3 July 2018, again with her doctors’ agreement, she left the ward but didn’t return. The Trust asked the police to visit her. They visited on 4 July 2018 but she did not answer the door. She was ultimately found dead on 9 July 2018. [para 2].
Background
The Coroner opened an inquest and found that Article 2 was not engaged. The family brought judicial review proceedings, arguing that: (1) the circumstances of Tanya’s death fell within a class of cases which gave rise to an automatic duty to conduct a Middleton inquest; (2) alternatively, that such duty arose because there were arguable breaches of a substantive operational duty (the Osman duty) owed by the Trust to take steps to avert the real and immediate risk of Tanya’s death by accidental drug overdose, a risk which was or ought to have been known to the Trust. [para 3].
One of the most keenly-awaited judgments from the Northern Ireland High Court, Gallagher’s application [2021] NIQB 85 is a roughly-300-paragraph deep-dive into some of the abiding legal controversies surrounding the Omagh bombing of 15 August 1998. The bombing, for which the Real Irish Republican Army (RIRA) later claimed responsibility, killed 29 men, women and children and 2 unborn children and injured many others. It continues to reverberate down the years as the deadliest single incident in the history of the Troubles in Northern Ireland.
Gallagher is a paradigm example of Convention rights at play. As such, it provides food for thought when considered against the scrutiny of both the Human Rights Act 1998 and Legacy litigation. This post sets out some of the main facts before analysing the main Convention-related arguments and the Court’s treatment of them.
The aftermath of the Omagh bombing. Copyright AP/Paul McErlane 1998
The facts
First, this case did not determine who was to blame for the bombing. The issue was a challenge to a 2013 decision, by then Northern Ireland Secretary, Theresa Villiers MP, not to order an inquiry into the Omagh bombing. This was important was because of the series of investigations that had preceded the 2013 decision – and failed to answer lingering questions.
The Upper Tribunal (Immigration and Asylum Chamber) has found that Priti Patel breached her procedural obligations under Article 2 of the ECHR in respect of deaths in immigration detention.
The application for judicial review arose following the death of Oscar Lucky Okwurime on 12 September 2019 in his cell at IRC Harmondsworth. Mr Okwurime had tried but failed to secure healthcare at the centre. He was not provided with his obligatory ‘Rule 34’ GP appointment within 24 hours of his arrival.
Priti Patel was subject to a legal requirement to assist the coronial inquest by identifying and securing evidence from potential witnesses. Instead, she elected to continue with her plans to remove a number of potential witnesses, including the Applicant, Mr Lawal, a close friend of Mr Okwurime.
Later, the Area Coroner for West London required Mr Lawal to attend the inquest on the basis that he was “an important witness of fact.” The jury later found that “multiple failures to adhere to healthcare policy” and “neglect” contributed to Mr Okwurime’s death from coronary heart disease.
The court found that Patel acted unlawfully in deciding to remove the Applicant in that she failed to take to take reasonable steps to secure the applicant’s evidence concerning the death of Oscar Okwurime. Aditionally, the absence of a policy directing caseworkers on how to exercise immigration powers in a case concerning a witness to a death in custody was unlawful. This was contrary to her Article 2 procedural obligations.
A Home Office spokesperson has said that, in light of the judgment, its processes were being refreshed and a checklist was being introduced to ensure all potential witnesses are identified.
The decision comes as Patel faces criticism for “serious mistakes” and “fundamental failures of leadership and planning” by the Home Office in managing former military sites as makeshift accommodation for asylum seekers. The Home Office is also being sued by a female asylum seeker who claims that staff at her asylum accommodation refused to call an ambulance for three hours after she told them she was pregnant, in pain and bleeding. When she was eventually taken to a nearby hospital, she learned that her baby had died.
In Other News:
Helena Kennedy QC, a leading human rights barrister and author of Eve Was Framed, has been included on the list of those sanctioned by the Chinese government for criticism of the human rights abuses against Uighur Muslims in Xinjiang province. Together with David Alton, a crossbencher, she helmed an ultimately unsuccessful attempt to persuade the UK government to create a procedure that would have enabled the English high court to make a determination on whether the evidence reached the threshold for genocide. China has imposed sanctions on 10 other UK organisations and individuals, including the former leader of the Conservative party Iain Duncan Smith, over what it called the spreading of “lies and disinformation” about human rights abuses in Xinjiang.
The investigatory powers tribunal (IPT), which examines allegations that the state has misused its surveillance powers, has heard from an environmental activist who was deceived into a long-term sexual relationship by an undercover Metropolitan police officer that his managers knew about the deception and allowed it to continue. A judge-led public inquiry into the activities of undercover officers is ongoing; Phillipa Kaufmann QC, who represents women deceived into sexual relationships, has called the practice “endemic”.
In the Courts:
Hamilton & Ors v Post Office Ltd [2021] EWCA Crim 577: the Court of Appeal quashed the convictions of thirty nine men and women employed by the Post Office as sub-postmasters, sub-postmistresses, managers or counter assistants; three other former employees’ appeals failed and were dismissed. All the appellants were prosecuted by their employer and convicted of crimes of dishonesty. The reliability of the computerised accounting system, “Horizon”, in use in branch post offices during the relevant period, was essential to the prosecutions. Despite repeated assertions by the Post Office that the system was robust and reliable, it has become clear that it was critically undermined by bugs and glitches which cause it to incorrectly record shortfalls. The court called the convictions “an affront to the public conscience.” A public inquiry chaired by Sir Wyn Williams, President of Welsh Tribunals, is currently trying to establish an account of the implementations and failings of the system.
Howard, R (On the Application Of) v Secretary of State for the Home Department [2021] EWHC 1023 (Admin): the High Court ruled that the Home Office’s handling of a Windrush citizenship application was irrational and unlawful. Hubert Howard was repeatedly denied British citizenship over the course of a decade, despite having lived in the UK since he arrived from Jamaica at the age of three in 1960, on the grounds that a number of minor convictions prevented him from meeting a “good character” requirement, which is an eligibility criteria for citizenship.
Elkundi & Ors, R (On the Application Of) v Birmingham City Council [2021] EWHC 1024 (Admin): the High Court has ruled that Birmingham City Council has been operating an unlawful system for the performance of its main housing duty under the Housing Act 1996. The Council had been operating on the basis that an applicant owed the main housing duty may be left in unsuitable accommodation while the Council takes a reasonable time to secure permanent suitable accommodation. Steyn J held that this was unlawful; the main housing duty is an “immediate, unqualified and non-deferrable” duty to secure suitable accommodation. Putting applicants on a waiting list was not a lawful means of performing that duty.
On the UKHRB:
Caroline Cross covers a recent case in which the boundaries of causation in mesothelioma deaths were tested and clarified.
Martin Forde QC summarises the High Court’s decision (set out briefly above) that the Home Office’s handling of a Windrush citizenship application was unlawful
Conor Monighan brings us the latest updates in human rights law
In the News:
Court of Appeal judges overturned the convictions of the ‘Oval Four’ after it was found that their sentences were based on evidence given by a corrupt police officer.
The ‘Oval Four’ refers to a group of black men who were arrested by officers claiming to have seen the men stealing Tube passengers’ handbags. The men were subsequently convicted in 1972 based solely on the basis of evidence given by those officers. None of the ‘victims’ appeared at the trial.
The case became a focus point for black rights and the treatment of BME people by the police. It was referred to the Criminal Cases Review Commission, which ultimately led to the successful appeal.
Whilst the convictions of three of the men were overturned, the fourth member of the ‘Oval Four’ unfortunately cannot be found.
The Lord Chief Justice, Lord Burnett, expressed “regret is that it has taken so long for this injustice to be remedied”. Lord Burnett also stated that there was “an accumulating body of evidence that points to the fundamental unreliability of evidence given by DS Ridgewell [the lead officer] … and others of this specialist group”.
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