PI Brief Update

The state’s duty to investigate deaths: Understanding the relevant ECHR article 2 obligations - Neil Davy, 3 Serjeants’ Inn

R (on the application of AP and MP) (Claimants) v HM Coroner for Worcestershire (Defendant) and Worcestershire County Council and Chief Constable of West Mercia (Interested Parties) [2011] EWHC 1453 (Admin); (2011) Med LR 397.
 

Introduction

This case is notable for its lucid and instructive summary of the jurisprudence on the duties imposed by article 2 of the European Convention on Human Rights (“ECHR”).  Article 2 frequently causes uncertainty in the conduct of coronial inquests, in particular in relation to whether an enhanced inquiry must be held or resumed to examine the actions of the state.
 

Background

The applicants were the grandparents of A, who suffered from Asperger’s syndrome and attention deficit hyperactivity disorder.  Since 1999 Worcestershire County Council’s Social Services had been involved with supporting A at his grandparent’s request and in 2002 he was allocated to the Council’s Disability Service.  In 2005 A left a residential educational establishment for young people with developmental needs.  Thereafter, A’s grandparents complained about the lack of support A was receiving from social services.  

A was also known to the West Mercia Police Force, following certain incidents in 2005 and 2006.  In particular, in January 2006 A complained to the Police that he had been raped by a man, M.  This allegation was investigated by the Police, but dropped by the Crown Prosecution Service.  Following this A received a number of threatening voicemail messages on his mobile phone.  These were reported to the Police but no further action was taken.    

A was found dead in May 2006 and was aged 21 at the time.  After two inconclusive murder trials, M pleaded guilty to A’s manslaughter.

A’s grandparent’s leveled complaints against the Council and the Police, leading to two inquiries.  The first was an investigation into the actions of the Police by the Independent Police Complaints Commission and the second was an investigation into the actions of Social Services pursuant to the Local Authority Social Services Complaints (England) Regulations 2006.  Both investigations resulted in reports which highlighted certain failings and made recommendations.  Separate civil proceedings brought by the grandparents were stayed pending the result of any inquest, and another complaint, to the Local Government Ombudsman, was stayed pending the outcome of the civil proceedings.
 

The application for judicial review

After A’s death the Coroner opened an inquest but this was adjourned pending the outcome of the criminal proceedings against M.  After M’s guilty plea, A’s grandparents asked the Coroner to resume the inquest, which request was declined.  It was that exercise of discretion, under section 16 of the Coroners Act 1988, which was the subject of judicial review.

In the Administrative Court the grandparents submitted inter alia that the state (in the form of the Council and the Police) had arguably breached its substantive obligations under ECHR article 2 in that the state had failed to have in place adequate systems for the protection of vulnerable individuals such as A, and had failed to take reasonable steps to safeguard A against a real and immediate risk to his life.  Therefore it was submitted that the inquest must be resumed in order to satisfy the procedural obligations inherent in article 2, for an independent enhanced inquiry.

The Council and the Police submitted that the article 2 breaches were not properly arguable and, further or in the alternative, that the other investigations that had been carried out were sufficient to satisfy any article 2 procedural obligations, such that resumption of the inquiry served no purpose.

Consideration of ECHR article 2

Mr Justice Hickinbottom outlined the relevant article 2 jurisprudence.  Article 2 imposed two clusters of obligations on states: first, the substantive obligations and second, the complementary procedural obligations.
 

Substantive obligation

The substantive obligation comprised:

An obligation on the state to refrain from the intentional taking of life; and

An obligation on the state to take reasonable preventative measures to safeguard the lives of those within its jurisdiction.  This obligation can be broken down into:

A general duty owed to all those within its jurisdiction to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.  This includes the establishment of criminal laws and enforcement machinery, and provision for the regulation of hospitals.  Crucially:

Where appropriate and effective systems were in place, individual failings or negligence would not amount to a breach of the general duty.  

Whether particular failings are systemic or not may be a challenging question to answer on the facts of a particular case.

The courts should adopt a flexible approach as to whether there has been an individual failing or a systemic failure, but should be mindful of the need to avoid individual fault being dressed up as a systemic failure. 

Where a state has failed to put into place a reasonable system to protect life, there would be a breach of article 2 regardless of whether there was a particular risk to a particular individual. 

An operational duty on a state to take all special measures that it could reasonably be expected to take to protect particular persons where:

At the relevant time (and not with the benefit of hindsight) it knew, or ought to have known, that there was a real and immediate risk to their life (and not merely a risk of some harm); and 

There is some additional element which requires the imposition of an operational duty.  That additional element is not clearly defined but is characterised by situations where the state has effective, entire and non-voluntary control over an individual (such as by means of state detention) and has thereby assumed responsibility for their safety.  It was also suggested that it would include situations where the police had been involved with a criminal who is liable to kill the individual concerned.  
 

Procedural Obligation

The procedural obligation imposed on the state a duty to investigate deaths where there had been an arguable breach of the substantive obligation.  To be arguable a breach needed to be anything more than “fanciful” and this was a low threshold.  

If there was an arguable breach of the substantive obligation the minimum requirements of a compliant investigation (usually referred to as an enhanced investigation) were that:

The authorities must act of their own motion;

The investigation must be independent;

The investigation must be effective in the sense that it must be conducted in a manner which does not undermine its ability to reach the relevant facts;

The investigation must be reasonably prompt;

There must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory;

There must be involvement of the next of kin to the extent necessary to safeguard their legitimate interests.

An inquest would ordinarily be the instrument by which the state sought to discharge its procedural obligation, but it was not the only instrument and it would be necessary to consider the full range of remedies available under the judicial system (including criminal, civil and possibly disciplinary) in deciding whether the duty has been discharged.  

Where the state discharged its procedural obligation by means of an inquest, compliance with article 2 may require the inquest to consider “how” in the broader sense of “by what means and in what circumstances”.
 

Decision on facts

Counsel for A’s grandparents submitted that his death revealed an arguable breach by the Police and/or the Council of both the general duty and the operational duty.  

In relation to the general duty Mr Justice Hickinbottom confirmed that ‘arguable’ was a low threshold but nevertheless, the application failed to meet it “by some appreciable margin”: [102].  Crucially, the failures of the Council and the Police which had been identified were individual failings and did not suggest a systemic failure to implement protection.  

In relation to the operational duty Mr Justice Hickinbottom concluded that there was no real and immediate risk to A’s life from M about which the Police Force and/or the Council knew or ought to have known.  

Mr Justice Hickinbottom also confirmed that even if he had found an arguable breach of article 2, he would have found that the totality of the other investigations were sufficient to discharge the state’s procedural duty.  He considered the minimum requirements for an enhanced article 2 investigation and concluded that the circumstances of A’s death had been “fully ascertained, insofar as they can be ascertained” by the IPCC and Social Services reports: [96].  In addition, recommendations had been made and steps had been taken to address the failings identified and M had also been identified, convicted and punished.  Although the various investigations had not determined causation issues, these would not always be considered at an inquest and in any event they would be considered at the grandparent’s civil claim.
 

Comment

Mr Justice Hickinbottom’s reasons in this case marshaled the English authorities on article 2 and brought clarity to the Strasbourg Court decisions.

Where there is an arguable breach by the state of the substantive article 2 obligation, compliance with the procedural obligation requires an independent enhanced inquiry into the death.  ‘Arguable’ may sound a low threshold, but the tests in relation to whether a failure was ‘systemic’ and whether, on the basis of facts known at the time, a risk to an individual was ‘real and immediate’, impose high hurdles and require rigorous assimilation of the facts with the article 2 authorities.

Further, an inquest is ordinarily the means by which the state discharges any article 2 procedural obligation.  In the present case Mr Justice Hickinbottom emphasised again the need to look to other investigations which have taken place or will take place, and consider whether these are sufficient, always keeping in mind the minimum requirements for an article 2 compliant inquiry.

Neil Davy, Barrister 
3 Serjeants’ Inn Chambers
London EC4Y 1BQ

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