Kent County Council, R (on the application of) v HM Coroner for the County of Kent (North-West District) & Ors

An Article 2 inquest is required only where there is evidence of an arguable or prima facie breach of an Article 2 duty. The operational duty requires knowledge, actual or constructive, of a real and immediate risk to life concerning an identified individual, together with a failure to take measures reasonably capable of avoiding that risk. The threshold is stringent and a risk of harm cannot be equated with a risk to life through hindsight. A child assessed as being in need under the Children Act 1989 is not thereby placed under sufficient state control to attract the operational duty. A coroner may order a jury inquest under section 8(3)(d) of the Coroners Act 1988 where the statutory discretion is exercised reasonably.

Kent County Council sought judicial review of the coroner’s decisions that Article 2 of the European Convention on Human Rights applied to the inquest into the death of Edward Barry and that the inquest should be held with a jury. Mr Barry, aged 14, died after ingesting methadone while staying at a friend’s flat. The Council’s social services department had assessed him as a child in need and had been aware of escalating vulnerability, drug use and other difficulties.

The coroner had ruled that the inquest should be a Middleton-type Article 2 inquest. The Council contended that there was no arguable breach of the general or operational Article 2 duties and that the inquest should instead be narrower. The central issues were whether an operational duty arose, whether the coroner had given adequate reasons, and whether the jury decision was lawful.

1. Article 2. The court quashed the coroner’s decision that the inquest should be conducted as an Article 2 Middleton inquest. The general Article 2 duty includes a positive duty to establish a framework capable of protecting life. The procedural duty to investigate arises only where there is evidence of an arguable or prima facie breach.
2. Operational duty. The relevant test was whether the authorities knew or ought to have known of a real and immediate risk to the life of an identified individual and failed to take measures within their powers which, judged reasonably, might have been expected to avoid that risk. The test has a stringent, high-threshold character. The evidence established vulnerability and a risk of harm, but not a real and immediate risk to life. The child’s earlier report of a suicide attempt and the events before his death did not establish that threshold.
3. The child was not in the care or under the direct control of the local authority. Assessment as a child in need under section 17 of the Children Act 1989 did not, without more, impose sufficient control to attract an operational duty. Treating every child in need as subject to that duty would impose a disproportionate burden on local authorities.
4. The coroner’s reasons could have been fuller, particularly because they did not address the operational duty expressly. However, the court would probably not have quashed the decision on that ground alone. A coroner must give sufficient reasons to enable the unsuccessful party to know both that it has lost and why.
5. Jury. The decision to hold a jury inquest under section 8(3)(d) of the Coroners Act 1988 was within the coroner’s discretion and was not unreasonable. The decision therefore stood. The same coroner was directed to proceed with the inquest, applying the narrower Jamieson approach and determining its scope at a further pre-inquest hearing.

This was a first-instance judicial review in the Administrative Court. Permission was granted on 18 January 2012. The court quashed the decision requiring a Middleton-type inquest but left the jury order in force.