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AB v Assistant Coroner for Inner South London   CO/663/2019, 1 May 2019 decision here.

The Extinction Rebellion protests are a forceful reminder, if any were needed, of how our planet is rapidly becoming more polluted with potentially worrying consequences for all who live on it.  Clean air is one of the most basic requirements of a healthy environment for us all to live, work, and bring up families.  As the government already acknowledges “Poor quality air is the largest environmental risk to public health in the UK” with exposure to nitrogen dioxide having an effect on mortality “equivalent to 23,500 deaths” every year.[1] 

When a nine year old girl dies from a severe asthma attack that may be linked to air pollution it is clearly a cause for concern and investigation.   

Ella Kissi-Debrah who lived alongside the busy London South Circular road died in February 2013 after suffering a severe asthma attack.  Ella had made 27 visits to hospital for asthma attacks since 2010. The first inquest into her death, held in 2014, focussed on the medical cause of her death and the medical care given in the short period between the fatal attack and her death.  The Assistant Coroner concluded that Ella suffered an asthma attack followed by a seizure and died after unsuccessful resuscitation. 

However new medical evidence was subsequently obtained that pointed to the severe air pollution in the area where Ella lived as having contributed to her death.  A monitoring station a mile from Ella’s home had repeatedly logged unlawful levels of air pollution. A Professor of immuno-pharmacology, who was an expert in respiratory disease, provided a report which concluded that the unlawful levels of air pollution had contributed to the cause and severity of Ella’s fatal asthma.  Further evidence pointed to an arguable failure by the state to regulate and reduce the extreme pollution that was implicated in her death.

“There was a real prospect that without unlawful levels of air pollution Ella would not have died” 

The statutory limits on nitrogen dioxide and other harmful air particulates were brought in specifically to prevent deaths.[2]  In recent judicial review proceedings the Secretary of State has accepted that failure to comply with legal requirements regarding air quality exposes citizens of the UK to a real and persistent risk of significant harm, particularly those who are elderly, children and those with pre-existing respiratory and cardiovascular conditions.[3]

Estimates suggest that a significant proportion of the UK population live in areas exposed to unlawful pollution levels.[4] The legal limits are regularly breached in our inner cities where diesel vehicles are particularly concentrated.   The UK is divided into 43 zones for air quality reporting: a worrying 37 of these zones exceeded the statutory annual mean limit value for NO2 in 2015.    DEFRA’s ‘Air Quality Plans’ (AQP) to tackle the issue have repeatedly been challenged by 'Client Earth' and found deficient by the courts.[5]  

In making this decision to order a new investigation and inquest there was rightly no criticism of the Assistant Coroner who also supported the s.13 application.  The fresh evidence had only become available after the first inquest concluded.  However, as the Coroner now agreed, this new evidence as to how Ella came by her death meant that it was necessary in the interests of justice for a fresh inquest to be held.

Both the Divisional Court (which included the Chief Coroner) and the Assistant Coroner eschewed coming to any concluded view on the application of Art 2 ECHR to the fresh inquest, but it must be clearly arguable that a state failure is implicated in Ella's death and so an inquest meeting the procedural requirements of Art 2 and s.5(2) CJA 2009 should follow.

In the decade since compliance with the European Directive 2008/50/EC should have been achieved there have been three unsuccessful attempts by the Government at devising an AQP which complies with the Directive and the domestic Regulations. In the meanwhile, UK citizens have remained exposed to significant health risks.  

Whether the bereaved family are now awarded exceptional public funding remains to be seen.  But the public interest in examining more thoroughly the death of a child which was, potentially, caused by unlawful pollution levels around her home is abundantly clear.

  

[1] See DEFRA Air Quality Plan 2017 here and Public Health England, ‘Estimating local mortality burdens associated with particulate air pollution’, 2014, here

[2] These limits are set out in European Directive 2008/50/EC here and the Air Quality Standards Regulations 2010 here

[3] R v (Client Earth) v SoS for Food, Environment and Rural Affairs No.3 [2018] EWHC 315 (Admin) at §5 here

[4] See R v (Client Earth) v SoS for Food, Environment and Rural Affairs No.3 [2018] EWHC 315 (Admin) at §32 here

[5] Client Earth is an environmental law charity  www.clientearth.org:  R v (Client Earth) v SoS for Food, Environment and Rural Affairs [2013] UKSC 25 here and R v (Client Earth) v SoS for Food, Environment and Rural Affairs No.2 [2016] EWHC 2740 (Admin)   here