Newsletters Professional Discipline 5th Nov 2020

The vexed question of Article 2: R (Peter Skelton and Elizabeth Skelton) v. The Senior Coroner for West Sussex and Others [2020] EWHC 2813 Admin

In R (Skelton) v The Senior Coroner for West Sussex and Others [2020] EWHC 2813 Admin the High Court again grappled with the vexed question of the engagement of Article 2 in coronial proceedings.

The factual background is as extraordinary as it is disturbing. The claimants in the case were the parents of Susan Nicholson, who was murdered by her partner, Robert Trigg, in 2011. The police investigation that followed, however, concluded that Miss Nicholson’s death was non-suspicious. Thanks largely to the determination and campaigning of the claimants, that investigation was reopened and, finally, in 2017, Trigg was convicted not only of the murder of Miss Nicholson, but of the manslaughter of another of his former partners, Caroline Devlin, in 2006. Like Miss Nicholson, at the time, Miss Devlin’s death was treated as non-suspicious, despite what appears to have been a history of domestic abuse on the part of Trigg, not only against her, but against two other previous partners, dating back to at least 2003.

In the reopened inquest proceedings that followed, the claimants submitted that the inquest should include an examination of potential breaches by Sussex Police of their duties under Article 2 ECHR. Those breaches, the claimants maintained, arose out of both Sussex Police’s failure to properly investigate the death of Miss Devlin in 2006, and the failure to take reasonable steps to protect Miss Nicholson in the months leading up to her death from the real and immediate risk to her life posed by Trigg at that time. The Coroner ultimately rejected those submissions, and the claimants judicially reviewed that decision.

The Court, having been invited by the claimants to determine for itself whether Article 2 was engaged in this case, was confronted with a surprising paucity of authorities that directly addressed that crucial issue. Was a court limited to traditional grounds of review, along the lines of Wednesbury unreasonableness, or, rather, was it entitled to make its own decision on that point?

Some authorities referred to in the judgment appear to indicate that the threshold question – whether there has been an arguable (i.e. more than fanciful) breach of Article 2 substantive obligations by agents of the state – was one for the court to consider itself. In AP, Hickinbottom J stated that the question was one “which I have to reconsider afresh”. Other authorities, by contrast, seem to emphasise the more traditional Wednesbury approach. In R (on the application of Medihani) v. HM Coroner for Inner London District of Greater London [2012] EWHC 1104 (Admin), Silber J, found that the reasons relied upon by the Coroner “reach[ed] the threshold of being unreasonable and [constituted] an unlawful decision”.

After a lengthy review of the authorities, the court appears to have charted a course between the two extremes – a rationality approach on the one hand, and a purely merits-based review on the other. The court noted that, by its very nature, the threshold question of arguability is only capable of one rational conclusion. Thus, in this particular context, 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.

In carrying out its review, a court will consider the views expressed by a coroner on the threshold question, and attribute weight to those views according to their “nature and cogency” and the degree to which they can be said to be informed by “specialist knowledge and experience” in relation to the particular factual issues which arise.

As well as considering the nature of judicial review of the Article 2 question, the judgment also provides a helpful examination of the engagement of Article 2 itself, particularly in cases involving alleged breaches by police in carrying out investigations, rather than the more commonly encountered scenario of failures in medical care. Whilst recognising the dangers of hindsight bias, or of placing unduly burdensome obligations on police, the court ultimately concluded that there was an arguable breach of Article 2 by Sussex Police in this case. In doing so, the court noted that the claimants were entitled to have their case “taken at its highest”, and that the question was not whether a breach had been established, “but merely whether it can credibly be suggested at this stage” that it will be, after the full investigation carried out during a Middleton inquest.


Paul Renteurs

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