Skelton, R (On the Application Of) v Senior Coroner For West Sussex

The threshold for an article 2 procedural investigation is whether an arguable breach of a substantive article 2 duty is shown. “Arguable” means more than fanciful. Where the question is based on undisputed documentary material, the court must determine the issue for itself, although it should give appropriate weight to the coroner’s reasoning.

An article 2 investigation into police failures requires credible evidence capable of showing a seriously defective investigation or a real and immediate risk to life which the police knew or ought to have known about. A fresh inquest ordered after a criminal conviction cannot reach a conclusion inconsistent with that conviction.

The claimants were the parents of Susan Nicholson, who was murdered by Robert Trigg. After Trigg’s conviction, the High Court quashed the original accidental-death inquest verdict and ordered a fresh inquest.

The Senior Coroner proposed a short inquest recording unlawful killing. The claimants sought an article 2-compliant inquest examining alleged police failures concerning the earlier death of Caroline Devlin and the protection of Susan Nicholson. Trigg separately sought to reopen the cause of Susan Nicholson’s death and invite an accidental-death conclusion.

The issues were whether the alleged police failings were sufficiently arguable to trigger the procedural article 2 duty, and whether the fresh inquest could reach a conclusion inconsistent with Trigg’s conviction.

1. Article 2 threshold. The procedural duty to hold an enhanced investigation arises where there is an arguable breach of a substantive article 2 obligation. “Arguable” means more than fanciful. In this context the court must assess the evidence itself. The coroner’s reasons remain relevant, but their weight depends on their cogency and any specialist experience involved.
2. Investigation of Caroline Devlin’s death. The available material credibly suggested serious failures, including treating suspicious circumstances as non-suspicious, relying on an FME without appropriate expertise, failing to obtain detailed accounts from Trigg and family members, failing to investigate his history of violence, and failing to secure an appropriate post-mortem. Taken cumulatively, those matters were arguably sufficiently serious to constitute a breach of the investigative aspect of article 2.
3. Protection of Susan Nicholson. The DASH reports arguably contained material errors, failed to record or investigate relevant domestic violence, and wrongly downgraded the risk from medium to standard. A proper investigation could have revealed a pattern of violence and threats to life involving former partners. It was therefore arguable that the police ought to have identified a real and immediate risk to Susan Nicholson’s life and taken protective measures.
4. The court did not find that the police had in fact breached article 2. Those matters were for investigation at the enhanced inquest.
5. Trigg’s application. The application was procedurally defective and out of time. In any event, although Schedule 1 paragraph 8(5) of the Coroners and Justice Act 2009 did not apply expressly, the public policy underlying it applied. It would be a collateral attack on the criminal conviction for the fresh inquest to consider a conclusion inconsistent with that conviction.
6. The judicial review claim was allowed on both limbs of Ground 2. An article 2-compliant inquest was required. Trigg’s application was rejected.

This was a first-instance judicial review in the Divisional Court. The judgment records that Whipple J had previously quashed the original inquest verdict and ordered another inquest, but no appellate history is stated.