When is an inquest an “article 2” inquest?

This article summarises the decision in R (Ferguson) v HM Assistant Coroner for Sefton, Knowlsey and St Helens [2025] EWHC 1901 (Admin). Mr Ferguson’s brother, Joseph Farley, died after jumping from the fourteenth floor of a car park, shortly after speaking with police who attended via emergency response to check on him following concerns from a member of the public. Mr Ferguson challenged the Coroner’s decisions that (i) the enhanced investigative duty under Article 2 of the European Convention on Human Rights was not engaged; and (ii) the inquest would be heard without a jury because section 7(2)(b) of the Coroners and Justice Act 2009 (“the CJA”) did not apply. This article will not recite the entire facts of the case but will provide a short summary on some of the key points from Mrs Justice Hill’s decision.

Article 2 – the duties

The duties imposed on the state by Article 2 include both a positive duty to protect life and a separate investigative duty to inquire into and explain the circumstances of a death. The former positive duty contains two aspects; the positive operational duty and the framework duty (often referred to as the systems duty). Within the investigative duty, the enhanced investigative duty (in other words when there should be an Article 2 inquest) applies when there is a sufficiently arguable breach by the state of one of its substantive obligations (the positive duty). The inquest should answer the question “in what circumstances the deceased came by his or her death” in order to comply with the duty.

What needs to be “arguable”?

The first issue in Ferguson was about whether there is a positive operational duty and what the threshold is for answering that question. It was agreed between parties that the threshold for whether there is any breach of the duty was a low arguability threshold. The Chief Constable’s position was that there is a high threshold to establishing the existence of the positive duty (before the low threshold of arguable breach of said duty is considered). Mrs Justice Hill held that the Claimant was right to contend that it was a low threshold. At §128: “I observe that the rationale for the low arguability threshold described in Morahan at [75] and [102], namely the concern to avoid the risk of a Coroner determining what the outcome of any inquest might be without the full evidential picture, applies with equal force to the duty issue and the breach issue, when either is considered before the evidence has been heard. This explains why the threshold is the same for both the duty issue and the breach issue.”. The question is therefore whether an arguable duty has been arguably breached.

Mrs Justice Hill found in the affirmative on both questions in the material case: there was an arguable duty, and it had been arguably breached. The discussion of the issues within the judgment is a clear analysis of the features relevant to the decision (both for- and against-) and is worthwhile reading for those who are considering these issues in their own cases.

A notable part of the discussion is the question about whether the State had arguably assumed responsibility for Mr Farley when the police attended upon him. Mrs Justice Hill considered there was force in the Claimant’s argument that reference to common law cases is appropriate when considering assumption of responsibility [§175 onwards]. Hill J considered precedent in tort law including circumstances where emergency services can assume responsibility for a person’s care where they give an assurance on which that person relies. The Judge also confirmed that consideration must be given to what the officers should have done, in addition to what they did do. Overall, it was arguable that the State had assumed responsibility for Mr Farley and there was an arguable breach of duty. In relation to the latter, Mr Farley’s vulnerability was a relevant factor and death by suicide is “by definition, an “exceptional” rather than “ordinary” risk”.

When is a jury mandatory?

An inquest must be held with a jury for a number of reasons, but particularly relevant to this case is if the Coroner has reason to suspect that the death resulted from an act or omission of a police officer. The Coroner declined to empanel a mandatory jury because he said, “The phrase: “act or omission” should be interpreted as there being a requirement for some form of inappropriate act.”. Mrs Justice Hill was not aware of any authority “supporting the placing of such a gloss on the statutory wording”.

Hill J also considered the phrase “reason to suspect” and confirmed this also has a low threshold. Her earlier conclusions on the substantive Article 2 grounds led to the conclusion that “the totality of the evidence met the low, objective threshold of “reason to suspect” Mr Farley’s death resulted from the acts and omissions of the officers who attended the scene”. The only “rational conclusion” on the facts was that the reason to suspect test was met. A jury ought to be empanelled.

Comment

We all turn to articles and commentary hoping for an ‘easy read’ or the key points to be distilled in a simple fashion. However, I regret to inform my readers that my comment to you all is that there is no substitute for reading the judgment of Mrs Justice Hill. It is a comprehensive and well written judgment which I cannot emulate in a short article. All I can hope to do is bring the case to your attention and remind you that when considering if an inquest is an “Article 2” inquest, a review of this judgment is worthwhile. The judgment explains the different Article 2 duties using a composite of the relevant authorities; and further, it demonstrates the type of analysis that Coroner’s ought to be carrying out when considering whether the enhanced investigative duties applies.

It’s also worth noting that Mrs Justice Hill “respectfully question[ed] the wisdom of the Coroner” (!) in determining the Article 2 and jury issue on the basis of written submissions alone, without oral submissions. Practitioners should be aware of §101 and the strong guidance that these issues should be dealt with at an oral hearing with prior notice in an agenda.

In short, the question is whether there is an arguable duty that has been arguably breached. The factors for or against will be fact specific but analogy can be drawn from previous case law, including common law negligence cases.

Megan Crowther is part of the Inquests Team at Parklane Plowden. Megan’s profile can be accessed here.