What an Art 2 investigation does and does not require

R (Grice) v HM Senior Coroner of Brighton and Hove [2020] EWHC 3581

Will an inquest always be required after a homicide trial when there have been alleged failures by state agents to protect life? In this Judicial Review case Garnham J gives us the answer by summarising the scope of the requirements of an effective Art 2 investigation and, particularly helpfully, setting out what is not required to satisfy the state’s the investigative obligation.

The Senior Coroner had refused to re-open the inquest into the murder of a woman by her former partner after her complaints of stalking were mishandled by police. There was no question that Art.2 was engaged on the basis of potential breach by the police of their operational duty to safeguard the victim’s life. Furthermore, the criminal trial alone had not satisfied the state’s Art.2 investigative duty. However, the judge agreed with the Senior Coroner that the European Convention does not adopt a prescriptive approach to the form of the Art.2 investigation, so long as minimum standards are met. One must look at the totality of the investigations conducted by the state whilst remembering that even the minimum requirements involve a degree of flexibility.

In this case the Art.2 obligation to conduct a prompt and effective independent inquiry with sufficient public scrutiny and sufficient involvement of the next of kin had been met by the combination of the criminal trial, a domestic homicide review and the three other investigations of police conduct. The Senior Coroner was not only entitled to find that these enquiries satisfied Art.2; she was right to do so.

The background

Shana Grice had made reports to Sussex Police on a number of occasions complaining of stalking behaviour by her ex-partner Michael Lane. Ms Grice had an ongoing but intermittent relationship with Lane during this period. At one stage she was considered to have misled the police about the nature of her relationship with Lane and had received a fixed penalty notice for wasting police time. When Ms Grice finally broke off her relationship with Lane he killed her.

An inquest was opened but suspended, pursuant to sched 1 para 2 CJA 2009, pending Lane’s homicide trial. He pleaded not guilty but was convicted of murder in March 2017. In his sentencing remarks the judge noted his concern with the way in which Ms Grice’s complaints had been handled by the police.

Four further investigations or reviews followed the trial:

  • a statutory Domestic Homicide Review of the case, which reported in September 2017;
  • an investigation into the case by the IOPC, which reported in June 2018;
  • an inspection by HM Inspectorate of Constabulary and Fire & Rescue Services concerning Sussex Police’s response to cases of stalking and harassment, which reported in April 2019; and
  • police disciplinary proceedings, which concluded in July 2019 with findings of gross misconduct against one officer and misconduct against two others.

When the Senior Coroner was asked to resume the inquest she acknowledged that the state’s investigative obligation under Art.2 ECHR was engaged on the basis of potential breach by the police of their operational duty to safeguard Ms Grice’s life. However, the Senior Coroner also determined that there was not sufficient reason to resume the inquest in the light of all the other investigations that had already taken place.

Ms Grice’s mother, brought judicial review proceedings arguing that the inquiries to date, whether viewed individually or collectively, were insufficient to meet the requirements of Art.2. She submitted that the criminal trial involved almost no exploration of the circumstances relating to the police’s responses to Shama’s complaints and the subsequent investigations were undertaken in private where the bereaved family’s ability to participate in the hearings was either very limited or absent.

Mr Justice Garnham dismissed the claim: the Coroner’s determination that the criminal trial and the other investigations which followed were sufficient to meet the Art.2 obligation was reasonable.

The Coroner had been obliged to suspend the inquest pursuant to Schedule 1 CJA 2009 and a suspended investigation “may not be resumed unless, but must be resumed if, the Senior Coroner thinks that there is sufficient reason for resuming it…”. That decision was one for the Coroner’s judgment and was one of a highly discretionary character. A central issue for the Coroner was whether other procedures had already answered the statutory questions under s.5 CJA 2009 (including how the deceased came to die) in a manner which adequately served the public interest.

Article 2 requirements

The precise requirements of an Art.2 investigation vary according to the circumstances of the case under consideration, but what are commonly referred to as the Jordan[1] requirements must be met:

  • 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 that does not undermine its ability to establish the relevant facts; albeit this is an obligation of means rather than results;
  • 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; the degree of public scrutiny required may well vary from case to case: and
  • there must be involvement of the next of kin to the extent necessary to safeguard his or her legitimate interests.

What is not required?

The judge also helpfully set out what is not required to fulfil the Jordan Art.2 requirements:

  • No particular procedure need be adopted. The form of the investigation may vary according to the circumstances and the requirements can be satisfied by a set of separate investigations, rather than by a single, unified procedure;
  • The requirement for the family of the deceased to be involved in an investigation to the extent necessary to safeguard their interests does not mean that the investigating authorities must satisfy every request for a particular step to be taken in the investigation;
  • The requirement of public scrutiny does not invariably require a public hearing;
  • Neither requirement means that the family of the deceased must be able directly to test evidence;
  • There is no requirement that each element of the State’s investigative procedure meets each one of the Jordan criteria;
  • That next of kin of the victim ordinarily play no active part in a criminal trial does not mean that the criminal trial falls out of account in assessing whether the totality meets the state’s investigative obligation;
  • That there is limited public scrutiny of one part of the process or limited involvement of the next of kin, will not necessarily invalidate the whole.

“Viewed in its totality, the investigations met the minimum requirements of Article 2.”

The question was whether, viewed in its totality, the investigations met the minimum requirements identified in Jordan. Commonly, a murder trial alone will meet the state’s Art.2 obligations in respect of a death, and an inquest thereafter will not be necessary. It was not sufficient here because it became apparent that there were serious failings by the police which contributed to the death

The Claimant’s complaints were regarding independence, effectiveness, public scrutiny and the next of kin’s involvement.  However, there had been prompt, independent enquiries initiated by the state of its own motion, which were effective, both in the manner in which they established the relevant facts and in the results they achieved, which provided a sufficient element of public scrutiny of the investigation or its results to secure proper accountability and which involved the family to the extent necessary to safeguard their legitimate interests. The Senior Coroner was not only entitled to find that these enquiries satisfied Art.2; she was right to do so.



1.  Jordan v UK (2003) 37 EHRR 2


George Thomas of Serjeants Inn Chambers (instructed by Weightmans LLP) represented the Chief Constable of Sussex as an Interested Party.