R (Ferguson) v HM Assistant Coroner for Sefton, Knowsley & St Helens and the Chief Constable of Merseyside Police [2025] EWHC 1901 (Admin) 23 July 2025 – judgment here
Q1: What strength of evidence will make it arguable that an article 2 duty has arisen and/or make it arguable that a duty has been breached, so as to trigger an Art 2 compliant inquest?
Q2: For a mandatory jury to be required need there be an inappropriate act or omission by police, or is their mere involvement enough?
The answer to both these questions is now clarified in this latest Judicial Review decision from the High Court which underlines how, in respect of the “low arguability threshold” for Art 2 engagement, low really does mean low. But, before any commentary, first a confession: this blogger could not stop herself fangirling Mrs Justice Hill as she read through this judgment. It is a beautiful exposition of how to write a clear and accessible judgment. It is long, at 46 pages, as Hill J is no slouch and the factual analysis is quite detailed. But her Ladyship’s “Article 2 in overview” section (see paras 14-37) is as clear an exposition of the relevant law on the engagement of Art 2 procedural duties as you will find anywhere. Indeed, inquest practitioners might as well just copy and paste the text into their skeleton arguments (or coroners into their own judgments) to save themselves a lot of time, as it is really not worth trying to explain this complex law any more succinctly than you will find in Hill J’s 23 neat paragraphs. It would be ridiculously presumptuous for this blog to even try to summarise it any further, beyond noting that Hill J clarifies that the low threshold of ‘arguability’ which will engage the procedural Art 2 duty applies not only to the question of any breach of a substantive art 2 duty, but also to whether any duty arises in the first place.
The meat of this case is, as with many cases, the application of the law to the unique facts and looking at whether the coroner had correctly applied that low arguability threshold in coming to his decision.
The background
James Farley, suffered with psychosis and depression, and appeared to be a heavy user of drugs and alcohol. At 10.16 one morning Police Officers found him in a car park following a 999 call from a member of the public who was concerned Mr Farley was “having a bit of a meltdown”.
Those Officers had a polite exchange with Mr Farley who was compliant and voluntarily handed over a part drunk vodka bottle. He was not crying, upset or in any visible distress and he engaged readily with the Officers assuring them that he was “a bit drunk”, but “not intending to hurt myself” nor “do anything bad”. He explained “it’s just a way of release” and told them that he suffered with psychosis and that was why he talked to himself. He agreed the vodka could be poured away. A vulnerable persons’ referral form was completed and its purpose explained. Mr Farley said and that he was planning to go home and apologised to the Officers. After about four minutes he descended to ground floor level and headed away from the car park. The Police Officers, being satisfied he did not pose a risk, also left the area. Around 20 minutes later Mr Farley went up to the fourteenth floor of a different car park and jumped to his death.
A police internal Professional Standards department (‘PSD’) review of the officers’ actions concluded that the attending officers had not gone against force policy and had asked the correct questions about Mr Farley’s thoughts of him harming himself and that “the decision not to implement s.136 of the Mental Health Act was acceptable”. However, it was also determined that “not all the opportunities were explored”. A Mental Health Triage car was available and more positive action such as persuading Mr Farley to go to hospital or take him home to a family member whilst he was drunk and in crisis “would have provided more robust safeguarding.” The PSD review concluded that “the officer’s decision making was ultimately flawed, they made decisions based solely on their personal interpretation of how he presented to them rather than any fact based evidence”. It was said that further inquiries would have revealed Mr Farley’s mental health history and “the officers were too easily swayed by James Farley’s insistence he was not going to self-harm despite him being intoxicated”. Whilst their conduct was not so serious as to justify disciplinary action, it was advised that each officer should be dealt with by a Reflective Practice Review Process.[1]
The Impugned decision
The coroner had opened an inquest and proceeded to investigate the death seeking evidence with a broad scope of inquiry covering Mr Farley’s mental health treatment between February 2023 and his death.
Written submissions on behalf of the Claimant, Mr Farley’s brother, argued that the conduct of the officers, as found by the PSD review arguably constituted a breach of the Article 2 operational duty and that inadequate procedures in place arguably constituted a breach of the Article 2 systems duty. For the same reasons, it was also contended there was at least ‘reason to suspect’ that the death resulted from an act or omission of police officers, thereby requiring the inquest to be held with a jury.[2]
The coroner did not accept Art 2 was engaged as in his view there was no credible evidential basis to assert the state knew, or ought to have known of a real and immediate risk to the deceased’s life and hence no duty arose, and anyway he perceived no breach of Art 2 duty or arguable causation ‘given the short period’ between the encounter and the death and given the explanations Mr Farley gave to the police. The coroner said he would however keep the Art 2 issue under review.
The coroner also considered a jury was not mandated as the reference to a death arising from a police officer’s “act or omission” in s.7(2)(b) CJA 2009 should be interpreted as there being a requirement for some form of inappropriate step by the police. Both decisions were communicated to the IPs.
Judicial Analysis
Application of the low arguability threshold
Hill J noted how the Divisional Court in Morahan[3] had already made clear that the low arguability threshold for engaging Art 2 was not only in respect of the breach of any Art 2 duty but also applied to whether an Art 2 duty existed in the first place (ie the threshold is not whether an established duty has been arguably breached, but whether an arguable duty has been arguably breached). The rationale for this is to prevent a coroner determining what the outcome of any inquest might be before the evidence has been heard and the full evidential picture has been painted. Indeed to apply any threshold other than arguability at the pre-hearing stage could give the impression of the coroner pre-determining matters before any evidence had been heard.
Did an operational duty arise?
Considering whether an Art 2 duty arose. The coroner had asked himself the correct question, namely whether the police officers knew or ought reasonably to have known of real and immediate risk to Mr Farley’s life. But, on applying this to the facts, the judge’s view differed from that of the coroner.
Her Ladyship noted there was credible evidence, in the form of the findings of the PSD investigation, that was critical of the officers for being unduly reliant on Mr Farley’s presentation and explanation. There were a number of routes to further inquiry that were not taken that may well have revealed more of his previous history and have informed the assessment of risk. It was in her Ladyship’s view at very least arguable that had the police further explored matters, as they could have done, they would have appreciated that the risk of Mr Farley taking his own life was not remote or fanciful but was significant and was ‘present and continuing’ (per Rabone), and was an objectively well-founded risk.
The Coroner had also concluded (with respect to the first of the Rabone indicia) that “the deceased was not within the State’s responsibility” given there had been no assumption of responsibility for his welfare and safety. Again, Hill J. considered that it was at very least arguable that the police had assumed responsibility, drawing on precedents from tort law which establish that that emergency services can assume responsibility for a person’s care, giving rise to a duty of care in tort, where, expressly or by implication, they give an assurance on which that person relies.
It is at least arguable that the Officers assumed responsibility for Mr Farley’s care given they attended in response to a 999 call for the specific purpose of protecting him from the risk of self-harm or suicide; gave him assurances that the police were there because they were “worried about” him; and told him they would take steps to protect him such as by completing a vulnerable person’s referral. It was also at least arguable that he acted on those assurances by initially coming down from the car park roof with the Officers.
The judge agreed that Mr Farley was not in a paradigm situation of “control” by the state: he was not under arrest or detained under section 136 MHA. However, it was arguable he could have been so detained, as regard must be had to what the officers should have done as well as what they did do. The PSD review concluded that the officers should have sought the assistance of a mental health professional. It was possible that had a mental health professional assessed him he would have become a patient. Mr Farley was especially vulnerable by reason of his psychosis, and he made the officers aware of that fact. Death by suicide in the course of a psychotic episode was an “exceptional” rather than an “ordinary” risk. Overall her ladyship considered that it was arguable that the Rabone criteria were met and so the Coroner erred in finding that it was not arguable that the officers owed the positive operational duty to Mr Farley.
Was an Art2 duty arguably breached?
As for any breach of duty, there was no evidence that it would have placed an impossible or disproportionate burden on the officers to have conducted some more basic checks on Mr Farley. The low arguability threshold was met.
Then, as a final step, the judge held that the coroner had wrongly considered the Tainton test of “Coronial Causation” when assessing the impact of an arguable Art 2 breach.[4] The test for causation in cases involving alleged breach of an Article 2 duty is “whether the deceased lost a substantial chance of surviving because of the breach.”[5] That threshold was also met here.
Hill J therefore held that the Coroner was wrong to find that the enhanced investigative duty under Article 2 was not engaged by reference to the positive operational duty .However she did uphold the coroner’s view that the Art 2 systemic duty was not engaged. The police had established systems, policies and procedures to enable concerns for the welfare of vulnerable people to be responded to appropriately. Any individual lapses in applying those systems were insufficient to engage the Art 2 systems duty.
Is a jury required
Art 2 ECHR embodies no right to a jury hearing. Rather, the separate question has to be addressed under s.7 CJA 2009 of whether the coroner has “reason to suspect…that the death resulted from an act or omission of…a police officer”. The Coroner had directed himself that the phrase ‘act or omission’ should be interpreted as importing a requirement for some form of inappropriate act by the police. However there was no authority which supported placing such a gloss on the statutory wording.
The objective ‘reason to suspect’ test also has a low threshold and, as the only rational conclusion on the evidence was that there was reason to suspect that the police attending Mr Farley could or should have done more, this threshold was met. A jury should be called
Commentary
The headline message here is not a new one: a ‘low threshold’ for triggering an investigative obligation really does mean low. that is because there ought to be a much lower threshold for investigating a potential breach, than the threshold for reaching a conclusion on the basis of all the evidence that there has actually been a breach. Coroners (and their juries) do the former – but they are statutorily banned from doing the latter. For something to be arguable it mustn’t be speculative, but if there is some, even weak, evidence that supports Art 2’s engagement then a coroner should proceed with an Art 2 compliant inquest, rather than deciding in advance that the broader circumstances of the death do not need any exploration.
Of course a coroner can choose hold a broad inquiry in a non-Art2 (Jamieson) inquest as much as in an Art 2 case – it is not the initial scope of the inquiry but the evidence that inquiry actually reveals that will govern what needs to comes out at the end of the process to comply with s.5(2) CJA 2009.
As the Chief Coroner’s Bench Guidance notes: ‘An inquest that has not formally been declared to be an Article 2 inquest may, regardless of its label, still have been conducted in such a way that the state’s obligations have been met.’ It is how the proceedings are actually conducted that will meet (or not meet) the state’s ECHR obligations. Although the utility of the label is that is makes the position clear to everyone, focuses the participants’ attention on the need to meet the Article 2 procedural duties and, as an aside, may influence whether exceptional public funding is provided to the bereaved.
Some other notable points also arise from the judgment
Was this a premature JR claim?
Had the claimant only been challenging the coroner’s decision that Article 2 procedural obligations were not engaged this case it may not have been entertained by the court until after the inquest had concluded. As the Chief Coroners Bench Guidance makes clear an inquest that has not formally been declared to be an Article 2 inquest may, regardless of its label, still have been conducted in such a way that the state’s obligations have been met.
However the refusal to call a jury was also challenged and so, as Mrs Justice Hill noted, it was appropriate to resolve the jury question before the inquest commenced if the risk of wasted proceedings was to be avoided.
Deciding contentious matters after oral submissions at a PIRH
Mrs Justice Hill also “respectfully” (ouch!) questioned “the wisdom of the Coroner having determined the Article 2 and jury issues in this case on the basis of written submissions only.” Her Ladyship observed that that these are precisely the sort of topics that will “often” be included in the agenda for PIRH hearings.[6]. As was said in Fullick “good case management in more complex or difficult cases will usually require that matters of importance such as whether a jury is required should be aired and decided at a pre-inquest review hearing, particularly where the issue may be contentious…a public hearing may be better than correspondence”.[7] This of course is only judicial comment, there will be times when the matter in issue is not a difficult or complex one and so a hearing to also listen to oral argument is not required. But for complex cases this is good guidance to ensure any decision is made by the coroner on the most informed basis.
Footnotes
[1] The IOPC dismissed a family member’s appeal against the decision not to instigate disciplinary proceedings against the officers.
[2] by virtue of section 7(2)(b) CJA 2009.
[3] at [134](i)
[4] i.e. whether, on the balance of probabilities, the event or conduct in question more than: minimally, negligibly or trivially contributed to the death.
[5] R (Boyce) v Teesside and Hartlepool Senior Coroner [2022] EWHC 107 (Admin), [2022] 4 WLR 15 at [45] citing Van Colle at [138].
[6] As the Chief Coroner’s Bench Guidance Chapter 3 on Pre-Inquest Review Hearings makes clear at [6]
[7] R (Fullick) v HM Senior Coroner for Inner North London [2015] EWHC 3522 (Admin), [2015] Inquest LR 321 at [49],