Reviewing coronial decisions on Article 2: a definitive Divisional Court decision on the correct approach of the Court
The Divisional Court (Popplewell LJ and Jay J) today handed down a judgment that provides a definitive answer to the question of what the court’s task is on a judicial review of a coronial decision on whether there are arguable breaches of the State’s substantive obligations under Art. 2, such that the procedural duty of the State under Art. 2 is engaged in relation to an inquest. The Divisional Court also provided guidance on the legal test formulated in the case of DSD v Commissioner of Police of the Metropolis  AC 196, in the context of the threshold that operational failures in a police investigation must reach before there will be a breach of the State’s general framework duty under Art. 2.
The decision under challenge in this case, R (Peter and Elizabeth Skelton) v the Senior Coroner for West Sussex & Ors  EWHC 2813 (Admin), was the ruling of the Senior Coroner for West Sussex, in which she concluded that it was not arguable that Sussex Police had breached the substantive Art. 2 rights of the Claimants’ daughter, Susan Nicholson, who was murdered in 2011 by her then partner, Robert Trigg. It had been submitted on behalf of the Claimants to the Senior Coroner that the available material disclosed arguable breaches falling into two categories:
failure to take reasonable steps to protect their daughter in the months before her death against the real and immediate risk to life posed toward her by Trigg; and
failure to conduct an effective investigation into the death of the death of one of Trigg’s former partners, Caroline Devlin, some five years earlier in March 2006.
Four grounds of challenge to the Senior Coroner’s decision were advanced on behalf of the Claimants. Grounds 1, 3 and 4 related to alleged public law errors. Ground 2 was summarised by the Court in the following terms: “it was for the Court to determine for itself the question of whether there were arguable breaches of the Claimants’ daughter’s substantive rights – given that it was plainly arguable that the police breached the substantive duties relied upon, the Senior Coroner erred in law in coming to the contrary conclusion”.
The Court examined ground 2 first; if the issue was one for the court, any public law errors that there may have been on the part of the Senior Coroner were neither here nor there.
The Court considered the coronial cases that had been drawn to the Court’s attention. The question had not been squarely addressed in any of them. In three cases, including the Divisional Court’s decisions in R (oao Muriel Macguire) v HM Senior Coroner for Blackpool and Flyde  EWHC 1232 (Admin) (Irwin LJ, Farbey J and HHJ Lucraft QC) and R (oao Silvera) v HM Senior Coroner for Oxfordshire  EWHC 2499 (Admin) (Charles J and HHJ Lucraft QC), the approach taken to the article 2 question was the application of traditional judicial review principles. In two other cases, including the Divisional Court’s decision in R (Parkinson) v Kent Senior Coroner  4 WLR 106 (Admin) (Singh LJ, Foskett J and HHJ Lucraft QC), the approach of the Court was to decide the arguability question for itself.
In the absence of clear, binding authority on this issue of principle, the Court considered the broader jurisprudence. The Court considered that the authorities did not support the high watermark of the Claimants’ submission that, whatever the context, the issue involving whether there is a breach of a convention right is always a hard-edged one of law where the court must answer a binary question without regard to the view of the Coroner. If that were right, all questions arising under the Convention could only ever receive one correct answer, and the Court of Appeal in deciding appeals in such cases, including proportionality cases, would be required to come to its own conclusion regardless of the reasons given by the court below. The Court also rejected the suggestion made on behalf of the Claimants that where an issue related to the alleged infringement of ECHR rights, it is for the court to determine the question for itself. A submission at this level of generality was not supported by the citations from authority which the Court had set out; “as Lord Steyn observed context is everything”.
The Court stressed the necessity of focussing on the nature of the decision the Coroner was being required to make, namely whether the evidence reached a threshold of arguability. The Court recognised that this assessment involves an evaluative process, but, drawing on the language of Lord Phillips in ZT (Kosovo) v Home Secretary  1 WLR 348 (para 22), the test is “black and white” and “objective”, leaving no room for more than one rational conclusion.
The Court held that the standard of review in this type of case is correctly categorised in terms of heightened scrutiny, but, in the particular context of a coroner asking herself whether the arguability threshold for allegations of substantive Art. 2 breach was reached, a rationality challenge collapses into a merits review because the answer to the question as posed is the same whether the route to it is through Wednesbury or an examination of the merits. If the court considers that the arguability threshold is not reached, the Coroner’s decision would stand irrespective of whether public law errors were committed on the road to that conclusion. If, on the other hand, the court considers that the arguability threshold is reached, the court will necessarily conclude that the Coroner’s view was irrational.
This is not to say that the conclusion and reasons given by the Coroner are “entirely irrelevant”; the court in reaching its own conclusions will take account of those reasons. The weight to be accorded to them by the court in reaching its own decision will vary according to their nature and cogency, as well as the degree to which they can properly be regarded as informed by specialist knowledge and experience in relation to the particular factual questions in issue.
In this case, the Court considered that the Senior Coroner had failed to provide detailed reasoning in a complicated case. As such, the Court did not derive any significant benefit from her views in reaching its own conclusions. Nor did the Court consider that the area of factual inquiry was such that her conclusion alone carried particular weight by virtue of any discrepancy in experience and expertise. They therefore approached the issue afresh.
The Court held that there were arguable substantive Art. 2 breaches in respect of both the categories of failures alleged by the Claimants.
In setting out the law applicable to the alleged failures in the investigation into the death of Caroline Devlin, the Court provided some guidance on the legal test from the Supreme Court decision in DSD v Commissioner of Police of the Metropolis  AC 196 as to the threshold that operational failures in a police investigation must reach before there will be a breach of the State’s general framework duty under Art. 2. The Court did not find helpful the “plethora of epithets and antonyms” set out in the judgments, comparing, by way of example, Lord Kerr’s “really serious” with Lord Neuberger’s “serious”. The Court considered, for reasons set out in the Court’s judgment at para 57, that Lord Neuberger’s succinct formulation of a “seriously defective” investigation best encapsulates the legal test.
The link to the judgment can be found here.
Emma Price was Counsel for the Chief Constable of Sussex Police