Challender & Anor, R (on the application of) v Legal Services Commission

The procedural obligation under article 2 to investigate a death cannot be relied on domestically where the death occurred before the Human Rights Act 1998 came into force. Alternatively, the obligation may extend beyond deaths involving State agents or the use of force where suspicious circumstances suggest unlawful killing and effective implementation of domestic laws protecting life requires investigation.

Legal representation for a deceased person’s family at an inquest is required only exceptionally, where its absence creates a real risk that the coroner cannot conduct an effective investigation or the family cannot participate effectively. Complexity, a disagreement between experts and the coroner’s view that representation would assist do not necessarily satisfy that test.

The claimants, the sister and partner of Michael Challender, sought judicial review of the Legal Services Commission’s refusal to request authorisation from the Lord Chancellor to fund their legal representation at the reopened inquest into his death.

They alleged that the deceased may have been unlawfully injected with heroin by a third party. The claimants relied principally on article 2 of the Convention, and alternatively on articles 6, 8 and 14. The death occurred on 29 September 2000, before the Human Rights Act 1998 came into force. The central issues were the temporal and substantive scope of the article 2 investigative obligation and whether funded advocacy was necessary for an effective inquest.

1. Claim dismissed. The refusal by the Legal Services Commission to seek authorisation for public funding was lawful. Permission to appeal was refused.
2. The temporal issue was decisive. Under In re McKerr [2004] UKHL 12, the article 2 obligation to investigate is triggered by the death itself. Because the death occurred before the Human Rights Act 1998 came into force, the obligation could not be relied on as a domestic-law basis for challenging the funding decision. The same conclusion would have followed if the claim had been analysed under section 3 rather than section 6 of the Act.
3. Alternatively, the investigative obligation is not confined to deaths involving State agents or the use of force. Its purpose includes securing the effective implementation of domestic laws protecting the right to life. Suspicious circumstances suggesting unlawful killing may therefore engage the obligation even without direct State involvement. This conclusion was obiter.
4. The form of an article 2 investigation is fact-sensitive. Legal representation for the family is required only in exceptional circumstances, where its absence creates a real risk that the coroner cannot establish the cause of death or responsibility, or that the family cannot participate effectively. The obligation is one of means, not of result.
5. This was not exceptional. The factual and medical issues were limited, the legal position was sufficiently clear, the claimants could obtain advice and assistance under Legal Help, and they could attend the inquest themselves. The coroner’s statement that he would be assisted by representation was relevant but did not establish that representation was necessary. The case was distinguishable from R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129.
6. The claims under articles 6, 8 and 14 added nothing. The inquest would not determine the claimants’ civil rights; no article 8 breach was identified; and the alleged distinction did not constitute status-based discrimination under article 14.