R (Hurst) v HM Coroner for Northern District London

JurisdictionEngland & Wales
JudgeLord Justice Buxton,Lord Justice Sedley,Sir Martin Nourse
Judgment Date21 July 2005
Neutral Citation[2005] EWCA Civ 890
Docket NumberCase No: C1/2005/0572
CourtCourt of Appeal (Civil Division)
Date21 July 2005

[2005] EWCA Civ 890

[2003] EWHC 1721 (Admin)






Lord Justice Rose and Mr Justice Henriques


Lord Justice Buxton

Lord Justice Sedley and

Sir Martin Nourse

Case No: C1/2005/0572


The Commissioner of Police for the Metropolis
Christine Hurst

Ms Anne Studd (instructed by The Solicitor to the Metropolitan Police) for the Appellant

Mr Keir Starmer QC and Mr Stephen Cragg (instructed by Bhatt Murphy) for the Respondent

Lord Justice Buxton



On 25 May 2000 Mr Troy Hurst, the son of the applicant before the Divisional Court, Mrs Christine Hurst, was killed by a violent stabbing attack perpetrated by a neighbour, Mr Albert Reid. An inquest into Mr Hurst's death was opened very shortly thereafter, but immediately adjourned under the provisions of section 16(1) of the Coroners Act 1988 [the 1988 Act] because Mr Reid had been charged with murder. He was eventually convicted of manslaughter on 16 July 2001. The Coroner accordingly had to decide whether there was "sufficient cause" to re-open the inquest under section 16(3) of the 1988 Act.


The Coroner had been strongly pressed by Mrs Hurst and those advising her to re-open the inquest: not to ascertain the cause and immediate circumstances of the death, which were unfortunately plain enough and had in any event been determined in the criminal trial, but to explore further what Mrs Hurst considered had been the many failings of various public authorities in giving her son sufficient protection from the known hostility and propensity to violence of Mr Reid. The concerns asserted by Mrs Hurst included failure by Barnet Council, Mr Reid's landlords, to take sufficient steps to evict Mr Reid in the light of threatening and violent behaviour towards neighbours, including Mr Hurst and his father; failure by Barnet Health Authority adequately to respond to Mr Hurst's personality disorder; and failure by the Metropolitan Police to act upon previous incidents of violence on the part of Mr Reid and, in particular, failure to treat with sufficient seriousness a series of reports of violent and erratic behaviour on the day of the death itself. A further theme of particular concern was the apparent failure of these three authorities to share the information that they had about Mr Reid with each other, and indeed within the police force itself, with the result that, for instance, the officers who attended to deal with the various incidents on the day of the death were not sufficiently briefed about Mr Reid's very violent history.


By a substantial letter dated 19 November 2002 the Coroner declined to re-open the inquest. He considered, simply applying the wording of section 16(3) of the 1998 Act, that all the matters required to be ascertained at an inquest had been ascertained in the criminal trial; and then held that the decision not to re-open the inquest was compatible with his and the United Kingdom's obligations under article 2 of the European Convention on Human Rights [ECHR]. The latter conclusion was challenged in the Divisional Court, in judicial review proceedings from which the present appeal is brought.

The decision of the Divisional Court


The Divisional Court held, deciding between conflicting first instance decisions, that the duty under article 2 to investigate unexplained deaths applied to the Coroner's exercise of his statutory discretion even though the death occurred before the coming into force of the Human Rights Act 1998 [the HRA]. They found that duty to be as stated by the ECtHR in Osman v United Kingdom 29 EHRR 245 [116], in terms adopted and approved by this court in R(A) v Lord Saville of Newdigate [2002] 1 WLR 1249 at paragraphs 12 and 28:

"It must be established…that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk "

After an extensive review of the available evidence the Divisional Court, although recognising the stringency of that test, concluded that the Coroner's decision had not been in compliance with article 2. Rose LJ said in paragraphs 110 and 111:

"Our task is to decide whether, when the Coroner refused to resume the inquest, the material then before him, and now before us, gave rise, arguably, to a breach of Article 2 by either [the Metropolitan Police or Barnet Council]. In my view, it did, and however inadequate a remedy the holding of an inquest in such circumstances may be, the Coroner's refusal to resume it was in my judgment fatally flawed …and breached his obligation under the Human Rights Act to act compatibly with the Convention.


It is not necessary to go further into the detail of the Divisional Court's reasons for that conclusion, because the Metropolitan Police, the only appellant before us, does not contest the proposition that if the Divisional Court was right to consider that article 2 applied to the Coroner's decision, then it was open to it to find on the material before it that the duty imposed by that article had not been fulfilled. Nor is it in issue whether a Coroner's inquest is the most efficacious medium through which to investigate the matters that call for enquiry in this case: a question on which I for my part share the doubts that were plainly entertained by Rose LJ. Granted that the resumption of the inquest is the only available step forward in the investigation, the contest before us is as to whether the decision as to that resumption is governed by article 2.

Events after the decision of the Divisional Court


The Divisional Court directed the coroner to resume the inquest. Because of perceived practical difficulties, that step was not put in hand by the coroner before the House of Lords delivered judgment in In Re McKerr [2004] 1 WLR 807 [ McKerr] on11 March 2004. It will be necessary to come back to that case in much greater detail. For the moment, it suffices to note that the House held, contrary to the view of the Divisional Court set out in paragraph 4 above, that the duty to investigate unexplained deaths imposed by article 2 only applied to deaths occurring after 2 October 2000, the commencement date of the operation of the HRA; the HRA was not, at least in this respect, retrospective; and the investigatory duty that forms part of article 2 was not "free-standing", but only adjectively linked to the duty to protect life. Since the state had no article 2 duty to avoid Mr McKerr's death before 2 October 2000, equally it had no article 2 duty to investigate that death if it occurred before 1 October 2000, even though the issue as to that investigation arose after 1 October 2000. And further, at paragraph 25 of his speech in McKerr Lord Nicholls of Birkenhead specifically stated, in terms to which we will again have to return, that the Divisional Court in our case had fallen into error by finding a duty of investigation in respect of a death that occurred on 25 May 2000.


Those observations necessarily do not disturb the actual order of the Divisional Court; and in these proceedings one of the interested parties in the court below, the Metropolitan Police, appeals against that order, relying principally on McKerr. The other interested parties, the local authority and the health authority, support the appeal but have taken no active part in it. Nor has the coroner taken an active part in the appeal, his position very properly being that he will abide by the order of the court.


The appeal is strenuously resisted by Mrs Hurst, who seeks to uphold the Divisional Court's order on grounds that were neither before that court nor before the House of Lords in McKerr. No objection has been taken to that course, though it has meant that this appeal has turned into an enquiry wholly different from that in the Divisional Court. The route by which we are invited to uphold the Divisional Court's order is one of some complexity. We have been assisted in pursuing that route by the admirable arguments of Mr Starmer QC for Mrs Hurst and of Miss Studd for the police: whilst being all the while very conscious that we are being asked to uphold an order that has already been characterised as erroneous in the House of Lords.


That has also meant that before us the proceedings took the form of Mrs Hurst, albeit technically the respondent, presenting her new case in support of the Divisional Court's order, which case was then answered by the appellant. That form is reflected in the form of the judgment that follows. However, before setting out the issues as reflected in the respondent's argument it is necessary to summarise the coroner's statutory duties.

The coroner's duties


By section 11(5)(b)(ii) of the 1988 Act, the coroner's inquisition returned at the end of the inquest shall set out, insofar as it has been proved, "how, when and where the deceased came by his death". The Coroner's Rules 1984, made under the authority of a provision consolidated in the 1988 Act, provide by rule 36 that the proceedings and evidence at an inquest shall be directed solely to answering that question; and in particular that no verdict shall be framed so as to appear to determine any question of criminal liability of a named person, or any question of civil liability.


The relevant parts of section 16(3) of the 1988 Act,...

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