R (on the application of David Ferguson) v HM Assistant Coroner for Sefton, Knowsley and St Helens

Hearing date: 17 July 2025

APPROVED JUDGMENT

This judgment was handed down remotely at 2.30pm on 23 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives.

Introduction

The Claimant is the brother and next of kin of James Joseph Farley who died on 11 April 2023, at the age of 26, when he jumped from the fourteenth floor of a car park in Bootle, Merseyside. The Defendant (“the Coroner”) is the coroner conducting the investigation into Mr Farley's death.

By this claim, filed on 24 January 2025, the Claimant seeks judicial review of the Coroner's 26 October 2024 decisions to the effect that (i) the enhanced investigative duty under Article 2 of the European Convention on Human Rights (“the ECHR”) 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. The Claimant contends that both of these decisions were wrong in law. He seeks orders quashing the decisions and giving appropriate declaratory relief.

By order of HHJ Halliwell (sitting as a Judge of the High Court) dated 21 March 2025, the claim proceeded to a “rolled-up” hearing on 17 July 2025.

The Coroner adopted a neutral stance in these proceedings, albeit having filed Detailed Grounds explaining the decisions.

The First Interested Party (“the Chief Constable”) was recognised as such in the inquest and in these proceedings because Mr Farley had had contact with several Merseyside police officers shortly before his death, and it is their conduct which the Claimant contends engages Article 2. The Chief Constable submitted that the Coroner's decision was correct such that permission should be refused or the claim dismissed.

The Second Interested Party (“the Trust”) was recognised as such because Mr Farley had been referred to their mental health services prior to his death. However, the arguments relating to Article 2 and the summonsing of a jury did not relate to the care provided to Mr Farley by the Trust. Accordingly, the Trust did not file an Acknowledgment of Service or play any part in the proceedings.

Both the Coroner and the Chief Constable contended that the claim had not been brought “promptly” or “without undue delay” as required.

The Chief Constable also argued that even if any errors with respect to the jury decision had not occurred, the outcome for the Claimant would not have been substantially different, thus invoking sections 31(3D) and (2A) of the Senior Courts Act 1981 (“the SCA”).

I was greatly assisted by the comprehensive written and oral submissions from all counsel. The Claimant did not attend the hearing in person. At the outset of the hearing I asked that his counsel convey to him the condolences of the court; and reiterate to him that although as with many cases of this nature it is necessary to traverse the facts and law in some detail, nothing said at the hearing or in this judgment should detract from the fact that at the centre of the claim is a bereaved family.

The Coroner has indicated that the position in respect of Article 2 will be kept under review throughout the inquest. However, it was not suggested that this judicial review was premature, no doubt because it includes a challenge to the decision not to summons jury which could not, unlike that in relation to Article 2, be re-visited once the evidence has been heard.

This judgment is structured as follows:

The legal framework: paragraphs [12]–[37];

The factual background: paragraphs [38]–[91];

The Coroner's decisions: paragraphs [94]–[101];

The issues: paragraph [102];

Issue (1): Delay: paragraphs [103]–[113];

Issue (2): Sections 31(3D) and (2A) of the SCA: paragraphs [114]–[120];

Issue (3): Permission: paragraph [121];

Issue (4): Ground 1 — the Article 2 operational duty: paragraphs [122]–[216];

Issue (5): Ground 2 — the Article 2 systems duty: paragraphs [217]–[225];

Issue (6): Ground 3 — the jury issue: paragraphs [226]–[240]; and

Conclusion, relief and costs: paragraphs [241]–[242].

The legal framework

(i): The CJA, sections 5 and 7

Section 5 of the CJA defines the matters to be ascertained in a Coroner's investigation in material part as follows:

“ 5. Matters to be ascertained

(1) The purpose of an investigation under this Part into a person's death is to ascertain—

(a) who the deceased was;

(b) how, when and where the deceased came by his or her death;

(c) the particulars (if any) required by the 1953 Act to be registered concerning the death.

(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), 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.

(3) Neither the senior coroner conducting an investigation under this Part into a person's death nor the jury (if there is one) may express any opinion on any matter other than —

(a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable);

(b) the particulars mentioned in subsection (1)(c)…”.

Section 7 of the 2009 Act provides in material part:

“ 7. Whether jury required

(1) An inquest into a death must be held without a jury unless subsection

( 2) or (3) applies.

(2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect—

(a) that the deceased died while in custody or otherwise in state detention, and that either—

(i) the death was a violent or unnatural one, or

(ii) the cause of death is unknown,

(b) that the death resulted from an act or omission of—

(i) a police officer, or

(ii) a member of a service police force,

in the purported execution of the officer's or member's duty as such, or

(c) that the death was caused by a notifiable accident, poisoning or disease.

(3) An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.”

(ii): Article 2 in overview

The “Convention rights” in issue under section 5(2) of the CJA are typically those in Article 2, which provides thus:

“(1) Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction for a crime for which this penalty is provided by law”.

The nature of the duties derived from Article 2 was comprehensively considered by Popplewell LJ in R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin), [2021] QB 1205. His judgment was upheld by the Court of Appeal at [2022] EWCA Civ 1410, [2023] KB 81 and cited with approval by the Supreme Court in R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20, [2023] 3 WLR 103.

Popplewell LJ explained that Article 2 has been interpreted as imposing three distinct duties on states and those exercising state functions: (i) a negative duty to refrain from taking life without justification; (ii) a positive duty to protect life; and (iii) an investigative duty to inquire into and explain the circumstances of a death: Morahan at [30].

The positive duty in (ii) above has two aspects, the “positive operational duty” and the “framework duty, of which the latter aspect is sometimes referred to as a systems duty”: Morahan at [30](2). The legal principles relevant to each of these aspects are set out at [22]–[33] and [34]–[37].

As to the investigative duty to inquire into and explain the circumstances of a death:

“There are two different investigative duties which have a different scope and different juridical basis. One is a substantive duty to investigate every death as an aspect of the framework duty; the other is a procedural obligation which arises only in some cases, and is parasitic on the possibility of a breach by a state agent of one of the substantive operational or systems duties. When the latter arises, it is a duty of enhanced investigation, to initiate an effective public investigation by an independent official body. This is the enhanced investigative duty”: Morahan at [30](3).

Popplewell LJ address the issue of when the enhanced investigative duty arises in Morahan thus:

“75. Lord Bingham's formulation in [ Middleton v West Somerset Coroner [2004] 2 AC 182] identifies the duty as arising when there is a sufficiently arguable breach by the state of one of its substantive obligations (“it appears that [a substantive obligation] has been or may have been violated”)…This threshold is a low one because to impose a more onerous burden would run the risk of the coroner determining, in advance of the full evidential picture, what the outcome of any inquest might be. Nevertheless it must amount to more than mere speculation. There must be a real evidential basis which makes the suggestion of a breach of a substantive obligation by the state a credible one”.

Popplewell LJ returned to the threshold issue later in the judgment,...