Thanks to the new Chapter 20 of the Chief Coroner’s Bench Guidance, we now have some very helpful and practical guidance on the application of Article 2 to inquests. It brings helpful clarification on the fact that, for example, all that ever needs to be demonstrated is an arguable breach of the state’s Article 2 duties – the Coroner never has to determine whether or not an Article 2 duty has actually been breached.
We know that the standard for establishing a potential breach is one of ‘arguability’, which amounts to a ‘credible suggestion’ of a breach, but what about the standard for establishing the existence of an Article 2 duty? Is it enough to say that the state’s duty under Article 2 was arguably engaged on the facts of a particular case?
Yes, said Mrs Justice Hill in R(Ferguson) v HMAC for Sefton, Knowsley and St Helens [2025] EWHC 1901 (Admin), stating that “the low arguability threshold applies to both the duty issue and the breach issue.”
The facts of the case concerned police interactions with the deceased, who had a history of mental health difficulties, shortly before he then jumped from the top floor of a car park and ended his life. The deceased had reassured officers that he was fine, that he was sorry they had been called out, and that he wasn’t intending to harm himself. At first instance the coroner had determined that Article 2 was not engaged and that there was no requirement to sit with a jury, despite a report from the police force’s Professional Standards Department which was critical of the officers’ conduct.
On review, the High Court disagreed with the coroner at first instance, and held that it was arguable that the operational duty was owed and that it was breached, on the basis that it was arguable that the police knew or ought to have known of a real and immediate risk to the deceased’s life at the time they interacted with him.
The judgment is also interesting for its discussion on causation in Article 2 cases – specifically with regard to whether an alleged breach of Article 2 is said to be causally relevant to the outcome. In applying the ‘Coronial Causation’ test of whether an act or omission caused or contributed to a death more than minimally, negligibly or trivially, the coroner had applied “the wrong causation test” (!) which, for an Article 2 case, is “whether the deceased lost a substantial chance of surviving because of the breach.”
There is some tension here, in my view. Most of the authorities concerning the Article 2 test for causation are civil claims which operate outside the coronial jurisdiction. Boyce, the authority relied upon by Hill J in Ferguson, itself relied upon Van Colle for the statement of the law on causation in Article 2 cases, but Van Colle was a civil claim. When we circle back to the Chief Coroner’s Bench Guidance, we find no reference to the “loss of a substantial chance” tests in either the sections on causation (in Chapter 15) or Article 2 (in Chapter 20).
Where does this leave us? Ultimately with High Court authority for the propositions that: (1) the threshold for establishing an Article 2 duty is arguability and (2) the causation test for alleged Article 2 breach is “loss of a substantial chance”, albeit with the caveat that we don’t have the benefit of the Chief Coroner’s guidance on the same.
It is an authority that is likely to assist those arguing that an operational duty should be found to have been owed to the deceased on the facts of their particular case. As to its wider significance, that remains to be seen.
