What does Article 2 require after a death in prison from “natural causes”?

R (Tyrrell) v Senior Coroner for Durham & Darlington [2016] EWHC 1892 (Admin), 26.7.16 (here)

Around two thirds of the 250 deaths in prison each year are from a naturally occurring cause. In a decision that will be warmly welcomed by Coroners, the Divisional Court has now determined that there is no obligation to hold an Art 2 inquest into such deaths unless there are grounds to believe that there was some failure in the healthcare provided by the state.

This case in which the Claimant’s arguments were described as being advanced at a “high level of legal abstraction” is happily a victory for pragmatism and common sense.   

Were it otherwise Coroners would be obliged to conduct a large number of ‘Article 2 inquests’, to no discernable benefit of anyone and despite it being abundantly clear before the hearing that nothing untoward had taken place.

The Claimant’s brother, Mr Tyrrell, was serving a 26-year prison sentence when he died from pneumonia secondary to cancer. All the medical and expert evidence that had been gathered by the PPO, the Claimant and the Senior Coroner pointed “irresistibly” to the conclusion that Mr Tyrrell’s death was from a natural cause and that appropriate medical care had been given to him. As nothing in the factual circumstances suggested any failings by the prison authorities or the NHS the Coroner determined that the procedural obligations of Art 2 were not engaged.

The Coroner had initially opened an investigation and, rather than relying upon the PPO report, had commissioned his own expert evidence. When no shortcomings in care were identified however the Coroner held a brief ‘documentary’ inquest. All evidence taken was from his coroner’s officer who, as the only witness, read from the medical reports.

The Claimant had obtained her own medical evidence from a professor at the Royal Marsden Hospital which “provided no foundation for any suggestion of negligence still less any systemic failings”. The Claimant accepted that had the deceased been at liberty and received the same quality of care there would have been no need for any inquest at all. Her barrister was unable to identify any practical difference between the investigation and inquest that was conducted and that which would have followed had the Coroner decided that Art 2 had been engaged. Indeed it is rather hard to discern from the judgment what the substance of the Claimant’s complaint actually was, beyond losing a chance of a fishing expedition at an inquest with live witnesses.

Lord Justice Burnett reviewed the relevant Art 2 authorities noting that whilst the positive obligation under Art 2 encompassed a duty to account for the cause of death of a person in state custody, the procedural obligation would only then arise in circumstances where there was reason to believe that the positive obligation had been breached.

He considered that the earlier observation of Lord Hope in Smith v Oxfordshire ADC [2011] 1 AC 1, that “the procedural obligation extends to all prisoners irrespective of the particular circumstances in which the death occurred” had been said in the context of Lord Hope discussing the situation where there was already a possibility of a breach of substantive Art 2 obligations.

The Court noted that a staged approach was embedded in the Coronial jurisdiction, where an initial investigation of a death in state custody was automatically required, but where the requirement for a further stage, and an ‘Art 2 ‘ investigation, would only then arise where the preceding investigation disclosed a possibility of a breach of a substantive obligation. A death from natural causes where there was no reason to suspect that the state had failed to protect the prisoner’s life would not give rise to that procedural Art 2 obligation.   In essence the test set out in Osman v UK applied in the context of the provision of medical care to those dependant upon the detaining authority. Unless there was evidence of a failure to provide timely and appropriate medical care to a detainee in obvious need of it Art 2 would not be engaged.