Legal Update
The King (on the application of) Mr Gary Parkin v His Majesty’s Assistant Coroner for Inner London (East) [2024] EWHC 744 (Admin)
10 April 2024

The King (on the application of) Mr Gary Parkin v His Majesty’s Assistant Coroner for Inner London (East) [2024] EWHC 744 (Admin)

Author: Bronia Hartley

Judicial review of a coroner’s decision on the scope of an inquest - Article 2 ECHR  - High Court considering the existence of the positive operational duty in relation to the death of a 74 year old following a domestic fire caused by the unsafe use or disposal of smoking materials


  • Mrs Rosslyn Wolff, age 74, was found dead in her home on 11 January 2022 following a domestic fire.
  • A fire investigation concluded that the most probable cause of the fire was unsafe use or disposal of smoking materials.
  • Mrs Wolff lived on her own.  She was a hoarder.
  • As well as being a smoker, she was diabetic.
  • She had been detained briefly under the Mental Health Act 1983 on two occasions in September 2021, but her symptoms of confusion were then diagnosed as not proceeding from mental ill health but from hyperglycaemia.
  • The fire brigade had received multiple referrals for home safety visits over the years.  It had tried to visit Mrs Wolff on 8 or 9 occasions and each time Mrs Wolff had either refused the visit or been uncontactable.
  • There had been one successful visit by the fire brigade a little over two years prior to Mrs Wolff’s death and smoke alarms were fitted.
  • Mrs Wolff had come to the attention of her local authority social services in November 2019 after her son, Mr Parkin, had raised concerns about his mother’s self-neglect, poor living conditions and abusive treatment at the hands of another family member.
  • An initial multidisciplinary assessment was carried out.  No mental health concerns were identified in relation to Mrs Wolff but ‘after much persuasion’ she agreed to a care package to support personal hygiene and medication compliance.
  • Health and social care professionals noted ‘ongoing risk presented by her unwise decision making’, including her refusal to engage in conversations about her ‘environmental circumstances’.  The plan was to continue to offer follow-up and engagement with her social worker and a fire assessment was to be made of her home by the fire brigade.
  • There followed multiple visits by the social worker on which occasions Mrs Wolff either refused to answer the door or declined offers of help (including with getting her house cleaned and her garden cleared).
  • It was unclear from the evidence whether the fire assessment ever took place.

The legal framework

  • The presenting question raised by Mr Parkin’s challenge was whether the Assistant Coroner had an Art. 2 investigative duty in relation to Mrs Wolff’s death pursuant to section 5(2) of the Coroners and Justice Act 2009 (‘Where necessary in order to avoid a breach of any Convention rights…the purpose mentioned in subsection 1(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death’).
  • The test of necessity is passed if it is arguable that a public authority is in breach of a substantive duty under Art.2 ECHR.
  • The leading authority on the positive operational duty is the decision of the Supreme Court in Rabone v Pennine Care NHS Trust [2012] 2 AC 72, a case about an NHS voluntary psychiatric inpatient, known to be suicidal, who died by suicide on a visit home.
  • Rabone identified the threshold test of ‘real and immediate risk to life’ as a necessary but not sufficient condition for the existence of the duty ([21]).
  • The threshold test of ‘real and immediate risk to life’ was further considered by the Supreme Court in R (Maguire) v Blackpool and Fylde Senior Coroner [2023] 3 WLR 103 at [241]: ‘A real risk is one that is objectively verified and an immediate risk is one that is present and continuing’.  The risk must be a risk specifically of death, not just of harm, even of serious harm ([38]).
  • In addition to the threshold test of ‘real and immediate risk to life’, the following principles emerged in Rabone: (1) ‘[T]he operational duty will be held to exist where there has been an assumption of responsibility by the state for the individual’s welfare and safety (including by the exercise of control)’ ([22]); (2) ‘[T]he vulnerability of the victim is a relevant consideration’ and ‘[i]n circumstances of sufficient vulnerability, the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state’ ([23]); (3) The nature of the risk to life is relevant (‘Is it an ‘ordinary’ risk of the kind that individuals in the relevant category should reasonably be expected to take or is it an exceptional risk?’ ([24])).
  • As to the scope of the positive obligation, ‘this will depend upon whether the authorities should have foreseen a real and immediate risk and what more they could be expected to do’ (Rabone, [101]). 

The Assistant Coroner’s decision

  • The Assistant Coroner found that Art. 2 was not engaged.
  • What was referred to as a ‘brief ruling’ concluded that the bare fact that a public body may have interacted with the citizen in question “does not thereby determine whether Article 2 is engaged”; that the evidence did not show that there was a real and immediate risk to Mrs Wolff’s life; and that in circumstances where Mrs Wolff was deemed to have capacity, she had the right to make unwise or inappropriate decisions and “[t]he state does not take on added duties or responsibilities in such circumstances”.
  • The Assistant Coroner considered that “[a]ny shortcomings or failings which might be established [could] be investigated within a Jamieson inquiry and scrutinised as necessary within a Report to Prevent Future Deaths, or even a finding of neglect if the evidence proved as much”.

The outcome of the judicial review

  • Real and immediate risk to life: Mrs Wolff was ‘certainly, up until the time of her death, a present and continuing risk to herself in many ways’ ([39]).  The authorities ought to have been aware of a real and present risk of a house fire at Mrs Wolff’s home, which risk was a multifactorial one presented by a number of known factors, including Mrs Wolff’s poor smoking habits indoors, hoarding, recent history of carelessness with her diabetes medication (producing spells of confusion and debility, which was relevant to her ability to deal with any fire risk or actual fire) and her known unwillingness to be advised or take action on some or all of these issues ([44]).  The risk of death was inherent in the risk of a house fire.  The real and present risk of a house fire was, in all the circumstances, a real and present risk to Mrs Wolff’s life, objectively evidenced ([45]). Despite the ‘real and immediate risk of death’ threshold being a high one, it was passed in Mrs Wolff’s case.
  • The Article 2 operational duty: It is not every risk to life – even in the case of a social services client or an NHS patient – which gives rise to an operational duty on the state to prevent it ([49]). Mrs Wolff’s circumstances were not the ‘paradigm’ for the operational duty arising since she was not a person over whom the state exercised control and she was not in the custody of the state.  However, being subject to state control is only the paradigm case and the authorities do not say that being under state control is necessary for the duty to arise ([49]).  The deceased in Rabone was not herself under formal state control at the time of her death.  That being said, her circumstances were somewhat special in that had she insisted on leaving the hospital, the authorities could and should have exercised their powers under the Mental Health Act to prevent her from doing so (Rabone, [34]). Mrs Wolff’s circumstances were very different from these.  The state had ‘no verifiable power to control or detain her’ and ‘no apparent basis in law for exercising control over her’ ([50]). She was not willing to cooperate with the authorities and they could not compel her to do so.  Counsel for Mr Parkin argued that the state had nevertheless assumed responsibility for Mrs Wolff, even if not by the exercise of control, citing the fact that the multidisciplinary team had addressed itself to the relevant risk to life and put together a plan for her welfare and safety in that very context.  This argument was rejected for the following reasons: (1) ‘Helping and supporting an individual, even in the discharge of legal duties, does not routinely give rise to the operational duty’‘Something more is needed’ ([52]); (2) The care plan that was devised for Mrs Wolff was addressed to the mitigation of the risks, not their elimination, and was necessarily dependent on overcoming Mrs Wolff’s resistance to state interference.  Whilst in cases of sufficient vulnerability the ECtHR has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state, this point has two important limitations: (1) The example given in Rabone of ‘sufficient vulnerability’ is that of a local authority failing to exercise its powers to protect a child at known risk of abuse.  Unlike Mrs Wolff, the child ultimately lacks autonomy in the matter; (2) the qualifier of ‘sufficient’ vulnerability indicates that not every degree of vulnerability will be relevant.  Mrs Wolff was an adult of confirmed competence and psychiatrically sound mind and was fully informed of the risks she was running ([57]). As to whether the risk was an exceptional one giving rise to the Art. 2 duty, it was observed that the risk of a house fire is one we all run, and in some circumstances that risk is heightened (for example due to the nature or state of the house or because of factors particular to the individual (such as age or disability)).  Mrs Wolff’s risks, even in combination, were ‘[still] of the kind that individuals, rather than the state, are reasonably expected to deal with’ ([61]).
  • Arguable breach: If the Court was wrong in its determination that the section 5(2) necessity test was not passed, the next step would be to consider whether it was arguable that the duty had been breached.  As to the scope of the duty and standard of what state authorities are expected to do faced with a real and present risk to life, the touchstone is reasonableness.  In Mrs Wolff’s case, the authorities’ strategy was ‘necessarily long term, patient and opportunistic, based on nudging Mrs Wolff towards wiser choices, and making the most of such chances as she permitted for intervention’ ([69]).  Even if the authorities were under an Art. 2 duty, its scope was a limited one and necessarily included respect for Mrs Wolff’s autonomy.  Having regard to this, the Court did not consider it arguable that the duty was breached on the facts of Mrs Wolff’s case.  The Court observed that whilst the threshold of arguability is a low one, ‘to be credible it must have some evidence base’ ([70]).  The argument that the authorities could and should have done more in the months leading up to Mrs Wolff’s death ‘[did] not advance beyond the speculative to the credible’ ([70]).