Those of you who were lucky to attend the Albion Chamber’s Inquest Seminar on 6th October 2022, might recall discussions around cases attempting to define the scope of when a duty arises to hold a Middleton inquest to comply with the obligations under article 2 of the European Convention on Human Rights (ECHR).
At the time of the seminar, we highlighted that there were two cases to watch out for in this area. First, R (Morahan) v HM Assistant Coroner for West London  EWCA Civ 140 and second, R (Maguire) v HM Senior Coroner for Blackpool & Fylde (awaiting judgment from the Supreme Court).
In the case of Morahan, the Court of Appeal has now handed down its judgment in the case.
The issue was in this case was whether the circumstances of the death of Tanya Morahan called for an inquest which complied with the procedural obligations under Article 2.
As established in the case of R (Middleton) v West Somerset Coroner  2 AC 182, the duty arises when a death occurs in circumstances where “it appears that one or other of the substantive obligations has been, on may have been, violated and it appears that the agents of the state are, or may be, in some way of implicated”. There have been numerous cases recently where there has been attempts to define the scope of that obligation, when it arises and when there is an obligation to hold a Middleton inquest. For example, if detained by a state agent (i.e. by police or in prison), it may be easy to identify but where someone is under voluntary care of a hospital or under a deprivation of liberty order in a residential placement (as in Maguire), the boundaries of that obligation can get murky.
In the case of Ms Morahan, she was a voluntary patient in a unit operated by a NHS trust. She died in her flat as a result of cocaine and morphine toxicity whilst under long-standing psychiatric care for schizophrenia. The Coroner ruled that the article 2 obligations were not engaged in this case. The High Court upheld the Coroner’s decision  EWHC 1603. The Court of Appeal has now upheld the decision in the High Court and found that the Coroner’s ruling was correct.
The following points of principles can be drawn from the Court of Appeal’s decision:
1. Automatic duty: There is no authority which decides that an automatic article 2 operational duty is owed to voluntary psychiatric patients to protect them from all risks of death. The risk of death in this case was to a patient who was at genuine liberty to come and go. This is contrasted with situations where a voluntary patient is in a hospital to prevent the risk of suicide (as in Rabone v Pennine Care NHS Trust  2 AC 72). If the Court were to find that there is an automatic duty in such situations, it would be “marching ahead of Strasbourg in this area” (para 46-48).
The appeal in Maguire again raises the issue of when automatic duty arises, which has been firmly rejected by the Court of Appeal in this case. We can anticipate Supreme Court’s view on this issue when its judgment is handed down in due course.
2. Real and immediate risk: There was no article 2 duty arguably owed by the trust. The finding of Popplewell LJ was unassailable as he applied the factors identified in Rabone and concluded, for a duty to arise, the risk of death must be real and, on the evidence, there was nothing to suggest that letting Ms Morahan continue her rehabilitation in the community gave rise to a “real and immediate risk of death”. The Court of Appeal observed that as a long-term drug user, she was at risk, even high risk, of serious harm and accidental death at some stage if she reverted to using drugs, however, it did not follow that she was at “real and immediate risk” which is a Strasbourg term of art and is more specific.
3. Finally, as a general observation on the scope of cases that are coming before the higher courts, the Court of Appeal observed the following:
“An inquest remains an inquisitorial and relatively summary process. It is not a surrogate public inquiry. The range of coroners’ cases that have come before the High Court and Court of Appeal in recent years indicate that those features are being lost in some instances and that the expectation of the House of Lords in Middleton of short conclusions in article 2 cases is sometimes overlooked” (para 7)
The application (or not) of the article 2 procedural obligation will not affect the scope of the investigation carried out by a coroner or the breadth of inquiry at the inquest itself.
“Mr Bowen KC for the appellant was candid about the underlying reason for this phenomenon. Legal aid is not generally available for the families of the deceased at an inquest, but the relevant statutory scheme allows it to be granted, albeit not automatically, when the inquest is the vehicle for satisfying the state’s procedural obligation under article 2 of the Convention.” (para 8)”
This judgment from the Court of Appeal is calling for restraint. The boundary of when the duty under article 2 arises is being limited. Both with its reminder that an inquest is a summary process and that cases before the courts are asking to “march ahead” of Strasbourg.
For now, this space will be closely watched in anticipation of the judgment in case of R (Maguire) v HM Senior Coroner for Blackpool & Fylde, which was before the Supreme Court on 22-23 November 2022.