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You may have heard an inquest being referred to as an ‘Article 2 inquest’. This refers to an inquest where Article 2 of the European Convention on Human Rights (ECHR) is engaged.

Article 2 inquests are enhanced inquests held in cases where the State or ‘its agents’ have ‘failed to protect the deceased against a human threat or other risk’ or where there has been a death in custody.

This is a complex area, but in essence it will usually apply where a person died whilst ‘in the care of the state’, such as in a secure mental health unit, immigration detention centre, in police custody, in prison or military deaths.

Article 2 of the European Convention of Human Rights (ECHR) states:
“everyone’s right to life shall be protected by law”. This right places two distinct duties on member states:

  1. A negative duty to refrain from taking life
  2. A positive duty to take appropriate measures to safeguard life.

This positive duty has had a major impact on the inquest process. In general, in order to comply with Article 2, the state must set up a judicial system which, as a whole, enables any citizen to access an independent, practical, and effective investigation of the facts of any death. This is sometimes referred to as the ‘general duty’.

The state must also put in place systems for the protection of life generally and, in certain circumstances, is under an ‘operational duty’ to take steps to protect someone from a known risk to life. These are referred to as Article 2 substantive duties.

It is out of these substantive duties that the Article 2 procedural duty arises. This is an enhanced duty to carry out a thorough, independent and effective investigation into a death. This does not have to be done through an inquest. A death can be investigated in other ways as long as it satisfies some minimum requirements such as that that it is independent, effective, prompt and involves the family of the deceased. However the usual way in which this duty is complied with is by way of an Article 2 inquest.

How is an Article 2 inquest different from other inquests?

Firstly, all inquests must comply with Section 5(1) of the Coroners and Justice Act 2009 which sets out that the purpose of a coroner’s investigation into a person’s death is to ascertain:

(a) who the deceased was;
(b) how, when and where the deceased came about his or her death; and
(c) certain formal particulars which need to be registered concerning the death.

Historically, the task of ascertaining ‘how’ the deceased came by his or her death had been understood narrowly as meaning “by what means”.

However, in the case of R (Middleton) v West Somerset Coroner in 2004 the House of Lords held that in order to comply with the state’s obligation under Article 2, the purpose of the investigation extends to ascertaining “in what circumstances” the deceased came by his or her death. This is how Article 2 inquests came to be called Middleton Inquests.

An Article 2 Inquest means that the state has to carry out an ‘enhanced investigation’ into the death. Whereas a ‘traditional’, non-Article 2 inquest will look at when, where, and how a person died, an Article 2 Inquest also looks at the wider circumstances surrounding a person’s death – “in what circumstance”.

In short, this means that an Article 2 inquest is likely to be more detailed than a traditional inquest and may well consider issues which would otherwise be deemed to fall outside of the scope of a non-Article 2 inquest. Article 2 inquests can also qualify for additional funding which would otherwise not be available.

Our solicitors have a wealth of experience in representing families in Article 2 inquests.

Emma Pearce, was involved in an inquest following the death of 2 SAS soldiers who were tragically killed when their RAF helicopter crashed in Iraq. The inquest was deemed to be an article 2 inquest as it involved military deaths. The inquest lasted 2 weeks and having solicitors to represent the family was crucial as they were able to liaise with the MoD’s Defence Inquest Unit ensuring disclosure of all relevant information took place and appropriate questions were asked of the MoD.

When might an Article 2 Inquest be held?

A coroner will confirm that an inquest is an Article 2 inquest for one of two reasons:

1. Deaths in state custody

An inquest will automatically be an Article 2 inquest if the death took place in state detention. This is because there must be an effective investigation into the circumstances of death where evidence suggests a potential breach of the duty to protect the lives of those under state care. A death is considered to be in state detention if an individual is detained by the police or prison services.

Ordinarily deaths in hospitals are not considered to be deaths in state custody. In order for Article 2 to be engaged for a hospital death, there would have to be evidence of systemic failures of processes and systems to protect life. A case of ordinary medical negligence would not trigger the specific Article 2 procedural duty, as recently confirmed in the case of Parkinson [2018] 4 W.L.R.

2. Possible breach of a substantive Article 2 duty

An inquest must be an Article 2 inquest if it appears to be arguable on the evidence that substantive duties under Article 2, referred to above, have been breached in relation to a death. For example, if there is evidence that the state has failed to take steps to protect individuals from an appreciable ‘real and immediate’ risk to their lives then Article 2 is engaged and an inquest in these circumstances should proceed as an Article 2 inquest.

Article 2(2) is not confined to intentional killing but includes deliberate use of force which has the unintended consequence of causing loss of life. This provision requires the State to take appropriate steps to safeguard life; where there are questions around this specific issue, it is likely that a Coroner will hold an ‘Article 2’ inquest.

Examples of when an Article 2 Inquest will be held

Care or Protection of the State

An Article 2 inquest will always be held if your loved one has died whilst under the care or protection of the state, or whilst in state custody so, for example, if they have died in immigration detention, in prison, or in police custody.

This is because when the state detains someone, the state then assumes a duty to ensure that person’s right to life is protected; in other words, they have a duty to keep them safe.

This is also the case where a person has died whilst been detained under the Mental Health Act in an inpatient ward.

State or Private Body implicated

An Article 2 inquest might be held in cases where the state or a private body is implicated, even though a person was not under their direct care. For example, if a person has died following a police chase, if military authorities do not provide adequate equipment leading to a soldier’s death, or if a state body such as the military, prison staff, or hospital staff fail to acknowledge and address a person’s immediate and real risk of suicide leading to their death.

An Article 2 inquest might also be held where it is considered that systematic or policy based failures have caused a person’s death, for example, where a person has died due to unsafe hospital policies.

In the case of Rabone v Pennine Care NHS Foundation Trust [2012] – the Supreme Court extended the remit of Article 2 to include situations where a mental health patient was not detained under the Mental Health Act, but was a voluntary in-patient, at the time of the patients death,

The facts of the case are, Melanie Rabone was admitted to Stepping Hill Hospital on the 11th April 2005. She had had a recent history of serious self harm attempts. Immediately prior to her admission she had tied a lamp flex around her neck. On admission, Melanie was advised that if she attempted to leave, she would be assessed for detention under the Mental Health Act 1983. She was assessed as a moderate to high suicide risk and was placed on 15 minute observations.

Melanie remained on 15 minute observation until 19 April. She was then assessed, in the presence of her mother, by her consultant psychiatrist. She requested to return home for the weekend. Despite her mother raising concerns about the safety of this course, the consultant allowed her 2 days leave. On the second day of this leave, she hung herself.

The Pennine Care NHS Foundation Trust admitted liability in negligence for the decision to allow her to leave the hospital.

They denied a breach of Article 2. The basis of the defence was that the operational obligation/duty owed to detained patients, did not apply to voluntary patients and that the breach of duty was not sufficient to amount to a breach of the general obligation under Article 2. Both the High Court and the Court of Appeal held in their favour.

The Supreme Court however unanimously rejected their argument, ruling that voluntary mental health patients should be afforded the greater protection of the operational duty, due to their “special vulnerabilities” and the fact that they could be detained if they try to leave the hospital.

This area of law is still developing and each case will turn on its own facts.

Aston Knight Solicitors are experienced in representing families in Article 2 Inquests and understand this technical area of law.

If the coroner has not already confirmed the status of the inquest then we can make submissions on your behalf as to why an Article 2 Inquest should be held in your loved one’s case to ensure a full investigation is undertaken.

Following the inquest, we can also help you bring a claim for damages where it is demonstrated that there were negligent failures in the care or treatment provided, which caused or contributed to the death.

If you would like further advice or wish to speak to one of our Specialist Lawyers then get in touch on 0161 399 1231

By Emma Pearce, Solicitor

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