Fatheya Ali, R (on the application of) v HM Assistant Coroner for Inner North London

For an operational duty under article 2 to arise, it must be arguable that there was a foreseeable, significant or substantial, present and continuing risk to life. A risk of serious injury, including seizures or falls, is insufficient unless it is elevated to a substantial risk of death.

Alleged failures must also be connected to the loss of a substantial chance of avoiding death. Evidence showing only a possible cause of death, particularly where the relevant event was unwitnessed, is too speculative. Where no arguable basis exists for the operational duty, associated narrative-conclusion grounds fall away and permission for judicial review must be refused.

The claimant sought permission to proceed with a judicial review challenge to the coroner’s ruling that article 2 of the European Convention on Human Rights was not engaged in the investigation into her brother’s death.

The deceased had been detained under section 2 of the Mental Health Act 1983 after falls, head injuries and suspected alcohol-withdrawal seizures. He later suffered a fatal brain injury while detained in hospital. Permission had previously been refused by Turner J, and the claimant renewed the application.

The central questions were whether the alleged failures gave rise to an arguable operational duty under article 2 and whether there was an arguable real and immediate risk to life.

1. Permission refused. The challenge to the coroner’s conclusion that article 2 was not engaged was unarguable. The remaining narrative-conclusion grounds therefore fell away.

2. The coroner had found an assumption of responsibility. Applying the approach in Morahan, as approved by the Supreme Court in Maguire, the relevant question was whether it was arguable that the positive operational duty to protect life was engaged.

3. Alleged failures to take reasonable measures had to be connected to the loss of a substantial chance of avoiding death, applying Van Colle and Savage. The evidence established only a possible causal contribution from an unwitnessed fall. That speculative evidence did not provide a real prospect of showing that the alleged failures deprived the deceased of a substantial chance of avoiding death.

4. The risk-to-life test was stringent. The risk had to concern death, rather than merely harm or serious injury, and had to be foreseeable, significant or substantial, present and continuing. The possibility of seizures or further falls did not itself establish a substantial and immediate risk to life. The earlier CT scans and medical observations provided no arguable evidential basis for that conclusion.

5. The coroner was best placed to assess arguability after an extended inquest. Her factual conclusions did not approach arguable irrationality. Permission was refused.

This was a renewed application for permission to bring judicial review proceedings. Turner J had refused permission on 8 May 2025. The renewed application was refused by the High Court (Administrative Court).