Lin & Ors, R (on the application of) v Secretary of State for Transport

Article 2 does not prescribe one uniform form of investigation. The required intensity depends on the nature of the possible violation and the involvement of state agents. Where a state-instituted investigation is required, an inquest may satisfy that obligation, alone or together with other investigative and liability processes. It must be independent, effective, reasonably prompt, sufficiently open to public scrutiny, and involve the next of kin so far as necessary to protect their legitimate interests. The degree of participation is flexible; cross-examination is not invariably required. A court reviewing a decision before an inquest has taken place should not speculate that the promised inquest will fail, where existing investigations and the proposed inquest are capable of meeting Article 2 requirements.

The claimants, parents of a journalist killed in the Potters Bar rail crash, sought judicial review of the Secretary of State’s decision not to establish a public inquiry. Several investigations had taken place, including investigations by the Health and Safety Executive and British Transport Police. A renewed inquest, to be conducted by a High Court judge sitting as deputy coroner, was due to take place.

The claimants argued that Article 2 of the European Convention on Human Rights required a public inquiry and that the inquest would not provide an adequate investigation. The central issues were the nature of the Article 2 investigative obligation, whether state agents might be implicated, and whether the proposed inquest, combined with the investigations already undertaken, could satisfy that obligation.

1. The claim was dismissed. It was unnecessary to decide whether Article 2 required the state to initiate an investigation in the circumstances of the crash, or whether state agents had arguably violated the substantive or framework obligations protecting life. The proposed inquest, together with the investigations already undertaken, was capable of satisfying Article 2 even on its most rigorous application.

2. The obligation to investigate under Article 2 had to be identified with precision. Its intensity varied across a scale. Where state agents might bear responsibility for loss of life, Article 2 could require the state to initiate an investigation. In less serious cases, a practical and effective system for investigating deaths might suffice.

3. Following R (Middleton v West Somerset Coroner) [2004] 2 AC 182 and R (Amin v Secretary of State for the Home Department) [2004] 1 AC 653, an inquest could constitute a state-instituted investigation. The obligation could also be discharged by a combination of processes, including an inquest and procedures for establishing criminal or civil liability.

4. Such an investigation had to be independent and effective, establish the cause of death or those responsible, be reasonably prompt, contain sufficient public scrutiny to secure accountability in practice, and involve the next of kin to the extent necessary to safeguard their legitimate interests. Its aims included reducing the risk of similar deaths, providing the beginnings of justice to the bereaved, and assuaging public anxiety.

5. The requirements of family participation were flexible. The more serious the possible violation and the greater the public anxiety, the greater the need for involvement. Cross-examination was not an essential requirement, even in a public inquiry. The promised inquest was plainly intended to be an enhanced or Middleton-type inquest, with judicial management, disclosure, representation, submissions on law and fact, and consideration of existing reports. The court could not predict in advance that it would fail to comply with Article 2.