Article 2 of the European Court of Human Rights protects the fundamental right to life. It imposes two key duties on the state:
Negative duty: to refrain from intentionally and unlawfully taking life.
Positive duty: to create structures, laws and procedures to protect life whilst also ensuring there is an independent and thorough system in place to investigate deaths.
In England and Wales, this means that in certain situations, Article 2 may be engaged in the context of an inquest.
An inquest is a judicial inquiry to ascertain the facts surrounding a death. When Article 2 is engaged, it requires the inquest to go beyond the usual scope of determining who the deceased was, and how, when, and where they died. The inquest must also examine the broader circumstances of the death, including any potential failings by state authorities to protect the individual’s right to life.
The law is complex on this subject however, broadly speaking, there are three grounds on which an inquest can engage Article 2.
Article 2 is automatically engaged in an inquest where the state has assumed responsibility for the individual, such as in cases of death in custody (e.g. in prison or whilst detained under the Mental Health Act). It will not apply where the death is due to natural causes.
An Inquest can also engage Article 2 in circumstances where a breach of the state’s systemic or operational duty has been identified. The systemic duty requires the state to have in place appropriate legal systems to protect life. However, for Article 2 to be engaged, the failure must amount to more than mere error or individual negligence (R (Parkinson) -v- HM Senior Coroner for Kent [2018] EWHC 1501). The operational duty, on the other hand, is a positive duty to protect individuals whose lives are at real and immediate risk. For Article 2 to be engaged due to a systemic or operational breach, a causative link between the breach and the risk to life must be established.
The coroner may ask for legal submissions about whether Article 2 is engaged from the Interested Persons ahead of the inquest or during a pre-inquest review hearing.
In practice, the engagement of Article 2 in an inquest does not dramatically alter the core inquest process, as coroners are required to conduct a thorough and impartial investigation. Coroners often emphasise their commitment to a “full and fearless inquiry” in all cases. However, when Article 2 is engaged, there are some practical differences that impact the scope, length, and ultimately the outcome of the proceedings. Whilst the engagement of Article 2 does not automatically require the coroner to sit with a jury, the criteria for jury involvement often overlap with Article 2 cases, so these inquests frequently proceed with a jury.
The main difference comes at the conclusion of the inquest. This is because if Article 2 is engaged, the Coroner or jury are entitled to look at a broader range of factors in reaching their conclusion and may adopt more critical language than in non-Article 2 cases. Phrases such as ‘missed opportunities’ or ‘inadequate monitoring’ can be included. In light of the broader scope, the inquest will often reach an expanded narrative conclusion rather than a short form conclusion.
For bereaved families, the engagement of Article 2 often allows access to legal aid funding, ensuring they can fully participate in the proceedings. For organisations, the expanded scope and likelihood of complex legal arguments make it advisable to consider instructing legal representation, as specialist expertise can be crucial to navigating the inquest process effectively. In this way, Article 2 inquests fulfil a critical role in examining not only the cause of death but also any wider systemic issues that may have contributed.
For further details on our inquests expertise, please contact us or a member of our health and social care team.