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No need for an Article 2 inquest - High Court overturns coroner's decision

In the recent case of Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC…

Summary

In the recent case of Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors [2012] EWHC 2768, the High Court overturned the decision of the defendant coroner, finding that the enhanced investigative duty under Article 2 (the right to life) of the European Convention on Human Rights (ECHR) was not engaged in this inquest into the death of a 14 year old boy known to the claimant county council’s social services department, despite the council being criticised in a serious case review following the death.

Background

The boy, known as EB, died in November 2009 with the medical cause of death being a methadone overdose. He was known to the council, but whilst a serious case review commissioned by them had been critical of the support given both to EB and to his parents, it had not been able to conclude that, with better support, the outcome would have been any different.

The question for the coroner was whether or not the enhanced investigative duty under Article 2 of the ECHR was engaged, which would require a ‘Middleton’ type inquest instead of the usual ‘Jamieson’ investigation. The key difference between the two processes is that under a Jamieson inquest, the coroner asks ‘by what means’ the deceased died. In a Middleton inquest however, the question is ‘by what means and in what circumstances’.

EB’s family argued that an Article 2 inquest was required and the coroner, in September 2011, agreed because of the ‘operational obligation’ – which means, that there was an arguable case that the state was under a positive duty to protect EB from a real and immediate risk to his life. Where public authorities know or should know of such a risk but fail to take measures within the scope of their powers that, judged reasonably, might have been expected to avoid that risk, Article 2 is engaged.

The High Court's decision

Overturning the coroner’s decision, the High Court (which included the new Chief Coroner, HHJ Peter Thornton QC) held:

  • Whilst there was no doubt that this case entered into the potential territory of the operational duty – EB was a vulnerable child who had been assessed by social services and for whom various interventions had been recommended – the risk to EB, when viewed objectively, was “…a risk of harm, but that should not, with all the wisdom of hindsight, be equated with a risk to life.”
  • The council had some degree of responsibility for EB as he was a child ‘at need’ under Section 17 of the Children Act. He was, however, one of several thousand such children within their jurisdiction and it would not be proportionate to require a council to exercise sufficient control over all those children so that an operational duty were exercised in each case.
  • The case did not reveal any systemic failings so as to engage Article 2 because the statutory systems for children in need of care were in place and adequate.
  • The coroner’s reasons for his decision could have been fuller but were probably sufficient – in such circumstances, coroners need to give sufficient reasons for the losing party to know not only that they have lost, but also why.

Comment

The High Court’s decision in this case is interesting for the apparent influence of the Supreme Court decision in Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2 in terms of the finding that there was ‘no doubt’ that there was potentially an operational obligation to protect EB’s life, in spite of the fact that he had not been detained by the state. The court’s view that in fact no such duty arose in this case was firstly because there was no ‘real and immediate’ risk to life and secondly because of the proportionality argument – the sheer number of children in similar circumstances would make it disproportionate to impose such a duty in every case.

Both the coroner’s decision and that of the High Court came before the inquest heard evidence. A key difficulty in both types of inquests is that the coroner has to determine which type will be held at the beginning of the investigation process. Sometimes, a provisional decision is taken, for example, to begin with a Middleton type inquest on the basis that the position be kept under review. In this case however, the High Court demonstrated evidence of a firmer line being taken that Article 2 was not engaged, even on the basis of the limited evidence that was available to them.

Whilst every case will turn on its facts, this decision does also demonstrate that arguments against Article 2 type inquests can nevertheless be worth making.

For more information on any of the issues raised in this article, please contact:

Richard Jolly, Partner, on 0151 242 7954 or at richard.jolly@weightmans.com

Ken Slade, Principal Professional Support Lawyer, on 0151 242 7953 or at ken.slade@weightmans.com