R (on the application of Maguire) v HM Senior Coroner for Blackpool & Fylde and another
| Jurisdiction | England & Wales |
| Judge | Lord Sales,Lord Reed,Lord Lloyd-Jones,Lady Rose,Lord Stephens |
| Judgment Date | 21 June 2023 |
| Neutral Citation | [2023] UKSC 20 |
| Court | Supreme Court |
Lord Reed, President
Lord Lloyd-Jones
Lord Sales
Lord Stephens
Lady Rose
Appellant
Jenni Richards KC
Nicola Kohn
(Instructed by Bindmans LLP (London))
Respondent (His Majesty's Senior Coroner for Blackpool & Fylde)
Jason Beer KC
Sophie Cartwright KC
(Instructed by Corporate Legal Services Blackpool Council)
Interested Party
Kenneth Maguire (appearing in person)
First Intervener
Alex Ruck-Keene KC (Hon)
Jake Thorold
(Instructed by MIND)
Second Intervener
Paul Bowen KC
(Instructed by Equality and Human Rights Commission)
Heard on 22 and 23 November 2022
Lord Sales ( with whom Lord Reed, Lord Lloyd-Jones and Lady Rose agree):
This case is concerned with the conduct of an inquest into the death of Ms Jacqueline Maguire, aged 52, in hospital on 22 February 2017 from pneumonia and a perforated gastric ulcer and peritonitis and the impact upon this of article 2 of the European Convention on Human Rights (“the Convention”). Article 2 is a convention right set out in the Human Rights Act 1998 (“the HRA”). I will refer to Jacqueline Maguire as “Jackie”, as her family has requested.
Article 2 provides, so far as is relevant, that “Everyone's right to life shall be protected by law”. It is established law that this provision has a substantive aspect, governing the ways in which the state should act to protect life, and a procedural aspect, which imposes an obligation on the state to provide for investigation as to whether a death may have resulted from a breach of the substantive obligations imposed by article 2. The precise content of the substantive obligations and of the procedural obligation under article 2 varies depending on the circumstances of a particular case. In this appeal, both the substantive aspect and the procedural aspect of article 2 are in issue.
Section 1 of the Coroners and Justice Act 2009 (“the 2009 Act”) provides that where a senior coroner has reason to suspect that a deceased person whose body is within their area died a violent or unnatural death, the cause of death is unknown or the deceased died while in custody or otherwise in state detention, the coroner must conduct an investigation into the person's death. The respondent (“the Coroner”) decided that the investigation into Jackie's death should take the form of an inquest conducted with a jury. The specific question which arises for determination in these proceedings is whether the circumstances surrounding the death of Jackie required the Coroner to request the jury at her inquest to return an expanded verdict in accordance with section 5(2) of the 2009 Act. Section 5 provides:
“(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 [the Births and Deaths Registration Act 1953] 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), 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 10(2) of the 2009 Act provides that a determination under section 5 “may not be framed in such a way as to appear to determine any question of — (a) criminal liability on the part of a named person, or (b) civil liability”.
The answer to the question arising as to the form of verdict to be delivered pursuant to section 5 depends upon the effect of article 2 in the circumstances of the inquest into Jackie's death. If article 2 requires an expanded verdict to describe the circumstances in which Jackie came by her death, then section 5(2) comes into play and the usual limitations in section 5(1) regarding the form of verdict do not apply.
The Coroner commenced the inquest into Jackie's death on the basis that it was likely that article 2 would require an expanded verdict at its end, but recognising that in its course matters might be sufficiently ventilated and clarified so that article 2 would no longer require this. Jackie's family were represented by counsel at the inquest, as were all the other interested persons. At the close of the evidence in the inquest hearing the Coroner invited submissions from the interested persons, including Jackie's family, as to the form of verdict which the jury should be asked to return. In the light of those submissions, on 29 June 2018 the Coroner gave his decision that article 2 did not require an expanded verdict (“the verdict decision”). Therefore the jury was requested to give a short form verdict stating only the cause of Jackie's death. Whether the verdict decision was correct in law is under challenge in these proceedings.
This claim for judicial review of the verdict decision has been brought by Jackie's mother, Mrs Muriel Maguire. Jackie's brother, Mr Kenneth Maguire, has participated in the proceedings as an interested party.
This judgment is structured as follows:
(1) An outline of the applicable legal framework for the inquest under article 2, including the substantive positive obligations under article 2 in the form of the systems duty and the operational duty and the different aspects of the implied procedural obligation under article 2, in order to explain the context for the verdict decision: paras 8–24;
(2) The 2009 Act and the requirement for an expanded verdict: paras 25–33;
(3) Development of the substantive positive obligations under article 2 by the European Court of Human Rights (“the Strasbourg Court”) in the cases of Osman, Powell and Calvelli: paras 34–39;
(4) The leading Strasbourg cases of Fernandes and Oliveira on the substantive positive obligations under article 2 in the field of healthcare and care of vulnerable people: paras 40–62;
(5) The facts of this case: paras 63–114;
(6) The judicial review proceedings in the Divisional Court and the Court of Appeal: paras 115–134;
(7) Discussion of the issues in the appeal (paras 135 and following): (a) was there an arguable breach of the systems duty on the part of the care home, so as to trigger the enhanced procedural obligation under article 2 (paras 144–181)? (b) was there an arguable breach of the systems duty on the part of any of the healthcare providers so as to trigger that obligation (para 182–184)? (c) was there an arguable breach of the operational duty on the part of the care home so as to trigger that obligation (paras 185–204)? and (d) was there an arguable breach of the operational duty on the part of any of the healthcare providers, so as to trigger that obligation (paras 205–209)?
(8) The effect on the appellant's case of general reports (the LDM Review and the CIPOLD report) on health outcomes for individuals with learning difficulties and lack of capacity: para 210; and
(9) The Ullah principle: para 211.
The overall conclusion is given at para 212.
At the outset it is helpful to set out an outline of the applicable legal framework within which the inquest took place, because it sets the scene to explain the decisions taken by the Coroner, culminating in the verdict decision. I will analyse the position in more detail later on.
In addition to prohibiting certain conduct, article 2 imposes a positive obligation on contracting states to take “appropriate steps to safeguard the lives of those within [their] jurisdiction”, as the Strasbourg Court put it in LCB v United Kingdom (1998) 27 EHRR 212 (“ LCB”), at para 36. This is a very general statement and the various aspects and specific content of this positive obligation have been clarified in a substantial body of case-law both in Strasbourg and domestically.
It has been held that article 2 imposes certain substantive positive obligations on a state to take steps to protect life. These are typically analysed as being of two types, an obligation to have appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its territory (“the systems duty”) and an obligation to take operational steps to protect a specific person or persons when on notice that they are subject to a risk to life of a particularly clear and pressing kind (“the operational duty”).
The distinction between these two types of substantive positive obligation has been emphasised at the highest level in the domestic case-law and the Strasbourg case-law: Savage v South Essex Partnership NHS Trust [2009] AC 681 (“ Savage”), paras 18–24, 40–42 and 67–72 (Lord Rodger of Earlsferry) and paras 77–79 (Baroness Hale of Richmond); Rabone v Pennine Care NHS Trust [2012] 2 AC 72 (“ Rabone”), para 12 (Lord Dyson) and paras 93–94 (Baroness Hale); Lopes de Sousa Fernandes v Portugal (2017) 66 EHRR 28 (“ Fernandes”), GC, paras 166–167 and 191–192; and Fernandes de Oliveira v Portugal (2019) 69 EHRR 8 (“ Oliveira”), GC, para 103. As it was put in Oliveira, these are “distinct albeit related positive obligations under article 2”. The operational duty derives, in particular, from the judgment of the Strasbourg Court in Osman v United Kingdom (1998) 29 EHRR 245 (“ Osman”).
In addition, article 2 imposes certain positive obligations of a...
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