Causative failings under Art 2:  a challenge to Lewis looms

R (Wiggins) v HM Assistant Coroner Nottinghamshire [2015] EWHC 1658 (Admin), 26.3.2015

With the growing popularity of narrative verdicts in the mid-2000’s it had become common practice for Art 2 inquests to conclude with a lengthy jury narrative outlining a multitude of shortcomings by public bodies. That practice has largely died out: the Court of Appeal’s decision in R (Lewis) v Mid and North Shropshire Coroner [2009] Inquest LR 294 [2010] 1 WLR 1836, and the more recent Chief Coroner’s Guidance no. 17 on conclusions, have significantly curtailed the number of issues that coroners now direct juries to determine at the end of an Art 2 inquest. That there is no longer any duty for non-causative shortcomings to be recorded has led many coroners to only use their power to do so where they require a jury’s assistance to determine disputed facts as a basis for the coroner’s PFD report.

However a looming case might change the practice yet again as permission has recently been given in Wiggins to bring a judicial review claim addressing the question of whether the causation point in Lewis needs to be re-visited in light of the approach adopted to Art 2 liability in Sarjantson v Chief Constable of Humberside [2013] Inquest LR 251, [2014] QB 411.

The facts

The claimant’s son had died after hanging himself in prison. Her request for an adjournment of the inquest whilst she sought public finding was refused and the inquest went ahead with her in attendance but unrepresented. She subsequently applied for permission for judicial review of the inquest on three grounds. Firstly, that an adjournment should have been granted in order to enable her to play an effective role in the investigation. Secondly, that there was an unlawful failure to investigate fully the circumstances of her son’s death, in that the inquest had not considered some factual evidence and some wider systemic issues that arguably caused or contributed to his death. Thirdly, following Sarjantson, that the coroner had adopted an unlawfully narrow approach to causation in an Art 2 inquest when he directed the jury and that any shortcomings had not caused or contributed to death and that they should not record non-causative criticisms.

The decision

Permission to apply for judicial review was given on all three grounds. Mr Justice Walker held that, firstly, whether or not a refusal of an adjournment complied with the common law obligation to ensure the effective involvement of the next of kin in an inquest was a matter for the court to determine and it was not sufficient for the defendant coroner simply to show that his decision was not irrational. Arguable matters arose regarding his decision that should be heard at a full judicial review.

Secondly, although it was not in dispute that a coroner can exercise discretion about calling particular witnesses provided that this discretion is exercised reasonably, the relevant issue was what investigation was required by Art 2 with reference to the particular case. The claimant had identified grounds for serious concerns that there were inadequate systems in place to protect life at the prison and the jury had not been presented with important evidence as to the timing of the death and whether the death could have been prevented. These alleged failures appeared to be sufficiently striking to warrant the grant of permission.

“It does seem, however, to me that the failures which are asserted in this present case appear to be sufficiently striking to warrant the grant of permission to apply for judicial review.”

Thirdly, whilst the duty of a coroner was to direct the jury to address in any narrative verdict only matters which probably had a causative connection to the death, it was arguable that the reasoning in Sarjantson had an impact upon what had been said in Lewis about causation, such that this may well merit full argument should the case be taken to the Court of Appeal.

“Whether the reasoning in Sarjantson has an impact upon what has been said in earlier cases is a question which may well merit full argument should the case be taken to the Court of Appeal.”


Although Mr Justice Walker noted that the propositions as to causation contended for by the claimant appeared inconsistent with earlier the Court of Appeal authority, which would still bind any court at first instance, he nevertheless foresaw a potential need for the Court of Appeal to now review their own decision in Lewis and so gave permission to pursue this ground.

In Sarjantson the Court of Appeal had considered at what point state liability for a breach of Art 2 rights would crystallise in the context of a civil claim brought against the police under the Human Rights Act (HRA). The Court essentially determined that the Art 2 duty on the state to provide protection to its citizens was one of strict liability. The state’s duty to take action arose at the point when the risk to life became known or ought to have been known. If reasonable and proportionate steps were not then taken to obviate the risk that duty would be breached. The principles of liability drawn from common law negligence, where establishing liability required that any breach of duty must also be shown to have caused damage or loss, did not apply to HRA civil claims. The fact that if proper action had been taken it would have made no difference to the outcome in Sarjantson was not relevant to whether or not there had been a breach of the core ECHR duty. It may, however, mean that the claimant had no right to any damages.

Wiggins being a permission hearing the judgment does not reveal the detail of the Claimant’s arguments as to how Sarjantson should alter the approach to causation in an jury’s inquest conclusion. Whilst superficially attractive to suggest that the Sarjantson decision might need the principles arising from Lewis to be reconsidered, it is important to recall that the court in Sarjantson were not considering Art 2 in the context of Coronial Law. Compliance with the state’s overall Art 2 investigative obligation does not require either the coroner and jury to determine whether or not Art 2 rights have actually been breached. Indeed it is the preferred position that they are firmly forbidden from doing so by s.10(2)(b) Coroners Act 2009 – to make a positive finding of  a breach of rights would clearly “appear determine a question of civil liability”.

Moreover, as the court noted in Lewis the language of s.11(5) of the Coroners Act 1988 (which is replicated in s.5(1)(b) CJA 2009) requires a determination of how the deceased came by his or her death, the proper interpretation of which, according to Etherton LJ (at para 40) is “more naturally confined to actual, that is to say, probable, causes of death rather than all possible causes, even if less than probable.” Inquest conclusions must remain circumscribed by the provisions of the CJA and not stray into issue that are for a civil court to determine.

Further it is important to note that the procedural obligation of investigation under Art 2 ECHR is not a duty imposed upon the coronial inquest in isolation, but upon the state. The totality of the investigatory apparatus employed by the state and available in a case of a prison death case will usually include the PPO report and any related clinical review, the inquest hearing itself (including any admissions of sub-standard care made in the course of the hearing) and the availability of a civil claim if the claimant chooses to pursue that avenue. The relevant question is whether the availability of all of these investigatory systems renders the totality of the investigative process put in place by the state Art 2 compliant. It is unduly narrow to focus upon the final inquest outcome as the only means to satisfy the Art 2 obligations. What the court will make of this at the full JR hearing of course remains to be seen.