England and Wales Court of Appeal (Civil Division) Decisions

IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, Administrative Court
Mr Justice Hickinbottom
CO92732009

		Royal Courts of Justice Strand, London, WC2A 2LL
		21/12/2010

Lady Justice Smith:

Introduction and Legal Framework

1. This is an appeal from the order of Hickinbottom J made on 13 April 2010 granting judicial review of and quashing a decision of the Legal Services Commission ("the Commission") refusing to recommend to the Lord Chancellor that he should authorise the Commission to provide public funding to cover the representation of Ms Claire Humberstone at an inquest into the death of her son.
2. Ms Humberstone (the respondent to this appeal) had applied to the Commission (the appellant) for funding pursuant to powers contained in section 6 of the Access to Justice Act 1999 ("the 1999 Act"). This section empowers the Commission to fund such legal services as it thinks appropriate, subject to certain restrictions. By section 6(6), the Commission may not fund any services listed in Schedule 2 to the 1999 Act. Under that Schedule, the Commission may not provide funding for representation at a coroner's inquest. However, there is a discretionary saving provision at section 6(8) which provides that:

"The Lord Chancellor:

(a) may by direction require the Commission to fund the provision of any of the services specified in Schedule 2 in circumstances specified in the direction, and

(b) may authorise the Commission to fund the provision of any of those services in specified circumstances, or if the Commission request him to do so, in an individual case."

3. Pursuant to subsection (b) above, the Lord Chancellor has authorised the Commission in the following terms:

"The Lord Chancellor authorises the Commission to fund advocacy services on behalf of the immediate family of the deceased at an inquest concerning a death:

(i) in police or prison custody;

(ii) during the course of police arrest, search, pursuit or shooting;

(iii) during the compulsory detention of the deceased under the Mental Health Act 1983.

Such services may be funded where the Commission is satisfied that funded representation is necessary to assist the coroner to investigate the case effectively and establish the facts. The Commission should have regard to my guidance on funding individual cases under section 6(8)(b) of the Act when considering cases under this direction."

4. The guidance to which the authorisation refers is called the 'Funding Code: Guidance'. Paragraph 27 is headed 'Exceptional Funding' and covers representation at inquests whether or not covered by the above authorisation and also representation in proceedings other than inquests. The guidance in respect of all inquests (whether or not within the scope of the authorisation) states that funding will only be granted where there is a significant public interest in the applicant being legally represented or where "funded representation is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by Article 2 of the European Convention on Human Rights (ECHR)". Such necessity, it is said, will only arise in exceptional cases.
5. For an inquest which does not satisfy either the 'wider public interest test' or engage article 2 of ECHR, the Lord Chancellor may (in the exercise of his discretion) authorise the Commission to fund representation on an individual basis. However, the guidance makes it plain that the Lord Chancellor expects that such discretion will only be exercised in 'an extremely unusual case'.
6. By letter dated 9 February 2009, Ms Humberstone's solicitor applied to the Commission for 'exceptional funding' under section 6(8) of the 1999 Act for representation at the inquest into the death of her son. In due course, that request was refused. Ms Humberstone applied for judicial review. Pending the hearing of that application, the Coroner for South Yorkshire adjourned the inquest. Hickinbottom J granted the application and required the Commission to reconsider its decision to refuse. I will examine his reasons in due course.
7. The Commission appealed to this Court but decided, without prejudice to the appeal, to reconsider its decision. It changed its mind and recommended to the Lord Chancellor the grant of representation at the inquest as an exercise of discretion on an individual basis. The Lord Chancellor accepted that recommendation and Ms Humberstone received funding for representation at the inquest.
8. Before the hearing of this appeal, it was contended for the respondent that the appeal was now moot and we should not hear it. At the outset of the hearing, we rejected that submission. It seemed to us that the Commission took a responsible attitude towards Ms Humberstone's position. It was naturally a matter of some concern that the inquest had been delayed by the refusal of the funding application and the judicial review proceedings. The Commission took the view that it should reserve its position by appealing so that any matter of principle could be determined by this court, without causing further delay to the inquest. It would be quite wrong, in our view, to deprive the Commission of its right of appeal (for which it has obtained permission) simply because it took a pragmatic and helpful approach to the conduct of this particular inquest.

The factual background

9. Ms Humberstone's son Dante Kamara was born in April 1998. He suffered from asthma from the age of 2. By the age of 5, he was under the supervision of a consultant paediatrician Dr Caroline Mackenzie at his local hospital. She prescribed two forms of treatment, a steroid inhaler to be used regularly twice a day and a broncho-dilating inhaler to be used, as required, as acute therapy. The medical records show that some of Dante's appointments were not kept. The doctor expressed concern about Ms Humberstone's failure to ensure that Dante used his steroid inhaler regularly. The records suggest that, at an appointment on 9 February 2007, and by letter afterwards, Ms Humberstone was warned that Dante's poor asthma control could be fatal; it was important that he should take the prescribed medication. This warning appeared to have had the desired effect as, when visited at home by an asthma nurse in March 2007, Dante's lung function had improved.
10. However, it appears that the relationship between Dr Mackenzie and Ms Humberstone had been damaged and thereafter she and Dante did not attend the hospital. Dante's asthma was supervised by his general practitioner and a nurse at the practice. He continued to receive medication as before. On an occasion in April 2008, he attended the surgery on account of an acute attack and in June 2008 he had an annual review. By now he was aged 10. The note of this occasion records the nurse's concern that Dante was still not using his steroid inhaler regularly and the mother's opinion that the asthma was getting worse. The mother suggested that Dante be referred back to the hospital but the nurse did not think that that was warranted at that time.
11. On 1 July 2008, Dante had a cough and his mother kept him off school. She knew that a cough could lead to an asthma attack. In the late afternoon, Ms Humberstone took Dante to the surgery and asked that he should be nebulised. This would, she hoped, prevent an attack. The nurse took the view that Dante did not need to be nebulised. She took a peak flow meter reading (which was poor) and prescribed a course of antibiotics.
12. On the way home, Dante appeared quite well and played in a park for a while. However, on leaving the park, he became breathless and began to wheeze. Ms Humberstone's partner, Mr Jamie Mayer, brought Dante's inhaler which he used. Mr Mayer then carried Dante home. At 6.30pm Dante was still complaining that his chest hurt and at 7.22pm an ambulance was called. A single paramedic arrived first and checked Dante's oxygen level, which was low. Oxygen was given through a mask but Dante collapsed. Ms Humberstone maintains that, at this point, the paramedic dropped a butterfly clip down Dante's throat and had to retrieve it with some sort of instrument. The paramedic then made a telephone call to ambulance control. He asked Mr Mayer to administer cardiopulmonary resuscitation. Eventually, the ambulance arrived and Dante was taken to Sheffield Children's Hospital where he arrived at some time before 8pm. Attempts to resuscitate him were unsuccessful and Dante was declared dead at 8.30pm. This was not only the tragic loss of a young life but it must have been dreadful for his mother and her partner.
13. Twelve days later, Ms Humberstone was arrested on suspicion of manslaughter by gross negligence. The police acted apparently as the result of suggestions made by medical practitioners that Ms Humberstone had not cared for Dante properly. At the police station, she could not be interviewed for some time. Even when declared fit for interview, it was thought necessary that she should be accompanied by 'an appropriate adult'. In due course, the police decided not to charge Ms Humberstone.

The application for funding

14. Mr Christopher Dorries, HM Coroner for South Yorkshire (West) ("the Coroner") decided to hold an inquest into Dante's death. Ms Humberstone consulted solicitors who, on 9 February 2009, applied to the Commission for funding for representation at the inquest. The Coroner wrote a letter supporting the application. He drew attention to the fact that it appeared likely that the medical witnesses would criticise Miss Humberstone's care of her son and said that 'her evidence might be called into question'. It appears that he probably meant to say that her conduct might be called into question. He also expressed his concern that, unless represented, Miss Humberstone would be unable to play a proper part in the proceedings because of the allegations and counter-allegations, her emotional involvement and the complexity of the medical issues.
15. The application was first refused on 20 February 2009, after which Ms Humberstone's solicitors requested a review of the funding decision. Before that could take place, the Coroner conducted a pre-inquest review on 25 February at which Miss Humberstone was assisted by her solicitor, Mr Peter Mahy, acting as a McKenzie friend. It became clear during that hearing that a number of 'interested persons' would be represented at the inquest. These included the ambulance service, the hospital authority and the individual doctors and nurses involved.
16. It appears that the Coroner was still concerned at the prospect that Ms Humberstone would not be represented at the inquest. He wrote a further letter to the Commission expressing himself in quite strong terms and asking that this second letter be taken into account at the review. He drew attention to the fact that the other interested parties would be professionally represented, some at public expense. He explained some of the difficulties he would face in conducting the inquest. It is clear that he anticipated that the medical professionals would unite in blaming Ms Humberstone for her son's death. Although he would be able to assist her to some extent, there was a limit to what he could do, as he had to maintain his impartiality. He noted that there would be no one to advise Ms Humberstone whether she should refuse to answer particular questions on the ground of possible self-incrimination.
17. In addition to the points made by the Coroner in his two letters, Ms Humberstone's solicitor made full submissions on her behalf. He submitted that she would be disadvantaged at the inquest if unrepresented by reason of her limited intellectual ability. She had left school at 15 with no academic achievement. The inquest was scheduled to last for five days and the medical issues would be complex. Also the proceedings would inevitably arouse strong emotions. Mr Mahy referred to Ms Humberstone's emotional state at the police station.
18. There followed a series of decisions by the Commission each refusing to recommend funding. After each decision, an objection was raised by Ms Humberstone's solicitors; legal proceedings were threatened. On 7 May 2009, the Commission offered to take a fresh decision. The final decision letter, which is the only one which I need to consider in detail, was written on 5 June 2009 by Mr Colin Stutt, the Head of Funding, Legal and Governance Team. Mr Stutt refused to make a recommendation to the Lord Chancellor. Quoting the guidance, he said that for funding to be granted for representation at an inquest there had to be either:

(a) significant wider public interest, as defined by the Funding Code Guidance, in the applicant being legally represented at the inquest; or

(b) a likelihood that funded representation for the family of the deceased is necessary to enable the Coroner to carry out an effective investigation into the death, as required by Article 2 ECHR.

19. Mr Stutt noted that the application had not been based on the existence of any wider public interest under (a). As for (b), he said that, even if the inquest could properly be said to entail a possible breach of the state's article 2 obligations (which was not accepted), the circumstances were not of an exceptional nature such as would require the family to be represented: see R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129; [2004] 1 WLR 971. Mr Stutt said that he had taken the Coroner's views into account but they were not determinative. He did not regard it as directly relevant that the medical professionals involved in the case would be represented. He expressed the view that Ms Humberstone would be able to participate effectively in the inquest both as a witness and as the mother of the deceased. Effective participation did not imply active legal participation in the sense of cross-examining witnesses; that would be the responsibility of the coroner. Ms Humberstone would have the option of whether or not to answer any questions put to her and she did not need representation to make such decisions. In her capacity as mother of the deceased, she could obtain legal help and this would "enable her to make submissions and identify particular matters that they (sic) wanted the coroner to explore". Finally Mr Stutt noted that Ms Humberstone had been arrested on suspicion of gross negligence manslaughter but that no charges had been brought. If, at the end of the inquest, Ms Humberstone were to be charged with a criminal offence, she would then be entitled to apply for legal assistance funded by the Criminal Defence Service. In conclusion, Mr Stutt explained that he was bound to follow the Lord Chancellor's guidance and the law; he must refuse the application.

Article 2 of the European Convention on Human Rights

20. It is convenient at this stage to interpose what I hope will be a brief uncontroversial explanation of the state's obligations under article 2 of ECHR, as much of what follows in this judgment relates to the existence and extent of those obligations.
21. The ECHR was imported into domestic law by the Human Rights Act 1998. Article 2(1) provides that: "Everyone's right to life shall be protected by law". That primary duty imposes on the state a duty not to take life and also a duty to take appropriate legislative and administrative steps to protect life, for example by the provision of a police force and criminal justice system. It imposes on state authorities such as the police and prison authorities the duty to protect those in their immediate care from violence either at the hands of others or at their own hands: see LCB v United Kingdom [1998] 27 EHRR 212; Osman v United Kingdom [1998] 27 EHRR ; Edwards v United Kingdom [2002] 35 EHRR 487 and R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653, [2003] UKHL 51. The duty also extends to organs of the state, such as hospital authorities, to make appropriate provision and to adopt systems of work to protect the lives of patients in their care: see Savage v South Essex Trust [2009] 1 AC 681.
22. So much is not disputed in these proceedings. In addition to these substantive duties, there is an obligation on the state in respect of the investigation of deaths and it is the scope of this duty which falls to be considered in this appeal. That duty has been described in Jordan v United Kingdom [2001] 37 EHRR 52 as requiring the initiation of an effective public investigation by an independent official body into any death where it appears that any of the state's substantive obligations has been or may have been violated and it appears that agents of the state are or may be in some way implicated.
23. This duty may be fulfilled in England and Wales by the conduct of a coroner's inquest although, in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, the House of Lords held that, in a case where the state's duty under article 2 was at least arguably engaged, the inquest had to range more widely than was usual pursuant to the Coroners Rules 1984 and had to include consideration of 'by what means and in what circumstances' the deceased had died. This type of inquest, where article 2 is potentially engaged, is now often known as a 'Middleton' inquest.
24. Where such an inquest is necessary, the state may bear a further responsibility, namely to provide representation for the close family members so as to enable them to play an effective part in the inquest. In R (Khan) v Secretary of State for Health (see above), the Court said that the inquest could only be an effective investigation if the close family members could play an effective part in it. Such representation would not be necessary in the great majority of cases but, in what were there described as 'exceptional' cases, it would be.
25. The main issue in the present case is whether the state's obligation to conduct an effective investigation into a death (with the associated possible necessity to provide representation) arises in all cases where a death occurs while the deceased was in the care of the state or whether it arises only in a much narrower range of cases where it is arguable that the state has breached its substantive article 2 obligations.

The Proceedings for Judicial Review

26. Ms Humberstone's claim for judicial review was begun on 19 August 2009 and permission to proceed was granted on 6 October. The claim form alleged that the application for funding had been made under section 6(8)(b) of the 1999 Act. It was alleged that the inquest would engage article 2 of the ECHR because engagement was not limited to cases of direct state involvement such as with deaths in police or prison custody; it could arise in cases of medical negligence. The duty to protect life could arise in the provision of emergency treatment such as was given by the paramedic in the present case. Mr Stutt had been wrong in law to say that article 2 was not engaged.
27. It was also alleged that Mr Stutt had been wrong in his approach to the question of whether the claimant could effectively participate in the inquest. Mr Stutt had considered Ms Humberstone's position only as a family member; he should have considered her position also as an eye-witness to the death and as someone whose conduct might be called into question. Her position at the inquest was exceptional and Mr Stutt's failure to recognise that had been unreasonable. Ms Humberstone might be blamed for the death. She needed advice as to self-incrimination. She also needed help with the medical issues, particularly causation, which the coroner had identified as an important disputed issue. (I interpose to say that, as I understand it, there is no doubt that the death was due to a severe asthmatic attack but causation issues would arise as to whether the death could have been avoided. for example by better supervision by the mother or by the more prompt arrival of the ambulance.) The outcome for Ms Humberstone was very important not merely because she was in danger of being stigmatized as a bad mother who had caused or contributed to her son's death. In addition, her position as the carer of her other four children could well be jeopardized by adverse comment about her.
28. The claim was supported by witness and documentary evidence including the police custody record and a transcript of the police interview. These went to support the submission that Ms Humberstone had been in an emotional state at the police station; traumatised, distressed and crying. As already noted, permission to interview her was dependent on the presence of an appropriate adult.
29. By its acknowledgment of service, the Commission defended the claim. It was contended that the circumstances, although tragic for Ms Humberstone, were not exceptional. It was said that Mr Stutt's decision letter showed that he had applied the guidance correctly. It was acknowledged that there were issues relating to Ms Humberstone's care of her son but she had been quite articulate in her own defence during her police interview. Representation would not be necessary to enable the Coroner to conduct the inquest effectively. The facts were distinguished from others where representation had been allowed. The Commission did not expressly deny that the inquest would engage the state's duties under article 2 of the ECHR. Nor even in counsel's skeleton argument was it expressly denied that article 2 was engaged. However, Mr Stutt's letter had put that question in issue.
30. The Coroner was joined as an interested party but he took no part in the proceedings.

The judgment of Hickinbottom J

31. After summarising the facts, and quoting the whole of the Coroner's second letter, to which I have referred, the judge turned to the law. He described the duties of a coroner in holding an inquest arising under the Coroners Act 1988 and referred to the Coroners' Rules 1984. By section 11(5)(d) of the Act and rule 36 of the Rules, the coroner's duty is to ascertain who the deceased was and how, when and where he came by his death. The proceedings are to be inquisitorial and investigative not adversarial. Witnesses are questioned first by the coroner. However, by rule 20, specified categories of person are entitled to attend the inquest and examine witnesses. Ms Humberstone would be entitled to examine witnesses on two grounds; first because she is a close family member of the deceased and second because she is a person whose act or omission might, in the opinion of the coroner, have caused or contributed to the death. The judge noted that the hospital and ambulance authorities and the doctors and nurses would also fall within the latter provision of rule 20. The judge noted that rule 22 provides that a witness is entitled to refuse to answer a question which might incriminate him or her and the coroner is under a duty to ensure that a witness is aware of that right.
32. Turning then to the law on funding under the 1999 Act, the judge noted that because the Lord Chancellor had not made a relevant direction under section 6(8)(a) or an authorisation under section 6(8)(b), Ms Humberstone had had to apply for funding under section 6(8)(b) on an individual basis. The decision to fund would be that of the Lord Chancellor, if the Commission requested him to do so. The guidance provided an indication of the kind of case which the Lord Chancellor was likely to consider favourably. The judge quoted paragraphs 27.2.8-10 from the section of the guidance which related to funding for representation at inquests:

"8. Before approving an application I would expect the Commission to be satisfied that either:

There is a significant wider public interest... in the applicant being legally represented at the inquest; or

Funded representation for the family of the deceased is likely to be necessary to enable the coroner to carry out an effective investigation into the death, as required by Article 2 of ECHR….

9. For most inquests where the Article 2 obligation arises, the coroner will be able to carry out an effective investigation into the death, without the need for advocacy. Only exceptional cases require the public funding of advocacy in order to meet the Article 2 obligation. In considering whether funded representation may be necessary to comply with this obligation, all the circumstances of the case must be taken into account, including:

The nature and seriousness of any allegations, which are likely to be raised at the inquest, including in particular any allegations against public authorities or other agencies of the state.

Whether other forms of investigation have taken place, or are likely to take place, and whether the family have or will be involved in such investigations.

Whether the family may be able to participate effectively in the inquest without funded legal representation. This will depend on the nature of the issues raised and the particular circumstances of the family. In most cases, a family should be able to participate effectively in the inquest without the need for advocacy on their behalf. Legal Help can be used to prepare a family for the inquest: to prepare submissions to the coroner setting out the family's concerns and any particular questions they may wish the coroner to raise with witnesses.

10. The views of the coroner, where given, are material though not determinative. There is however no expectation that the coroner's views should be sought before making an application or that the coroner will wish to express a view."

33. The judge noted that it was not alleged that there was any wider public interest at stake and that the request was based upon the contention that funded representation was likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by article 2 of ECHR.
34. The judge then quoted paragraph 27.4.5-11 of the guidance given under the heading 'Representation is Likely to be Necessary':

"5. This category of cases arises from the need under Article 2 of the ECHR to ensure that certain deaths are effectively investigated by the state.

6. The Commission, in assessing this category of case, looks to the guidance provided in the judgment in [Khan] as to the particular circumstances in which the Article 2 investigative obligation requires funding to be provided for the deceased's family to be legally represented at the inquest or at an equivalent investigation.

7. Khan states that the coroner's inquest is the natural occasion for the effective judicial inquiry into the cause of a death that the Convention requires. However, the court also recognised that the holding of an inquest could not fulfil the Article 2 obligation if the family of the deceased was unable to play an effective part in it. The court accepted that in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented. However, there would be exceptional cases where such representation was necessary for the Article 2 obligation to be fulfilled. The court considered that the case in Khan was such a case.

8. The Commission, in considering whether a case can reasonably be said to fall into the 'exceptional' category, takes into account the following:

(a) The nature and seriousness of any allegations which are likely to be raised at the inquest, in particular any allegations against public authorities or agencies of the state. Particular regard will be given to any of the following circumstances: closely related multiple and avoidable deaths from the same cause within the same institution; criminal conduct; attempts to conceal information or otherwise interfere with an investigation into the circumstances surrounding the death.

(b) Whether other forms of investigation have taken place, or are likely to take place, and whether the family have or will be involved in such investigations.

(c) Whether the family may be able to participate effectively in the inquest without funded legal representation. This generally depends on the nature of the issues raised and the particular circumstances of the family.

(d) Any views, concerning the necessity of representation, expressed by the coroner, although these are not determinative.

9. The starting point for our consideration in these cases is that, in the majority of cases, a family can participate effectively in the inquest without the need for advocacy on their behalf. In general, the ability to attend and understand the proceedings together with an opportunity to raise any particular matters of concern to them with the coroner would be sufficient to ensure participation.

10. In The Queen on the application of Tobias Main v The Minister for Legal Aid [2007] EWCA Civ 1147 [("Main")], the Court of Appeal held that the coroner could reasonably be expected to carry out a proper investigation into the deaths of the deceased without full representation of the family, in a case where the actual facts appeared unlikely to be in dispute, and there were not suspicions of serious wrong-doing or dereliction by an agent or agents of the State. It was emphasised that an inquest is an inquisitorial and not an adversarial process.

11. Legal Help is available to prepare a family for the inquest: and, as stated in Main, to make submissions and identify any particular matters which they wanted the coroner to explore. It is only advocacy before the coroner that is an excluded service under the Act."

35. The judge then outlined the issues arising in the claim for judicial review. By this time it was clear that, at the forefront of the Commission's position was the argument that the inquest was not one at which the state's article 2 obligations could arise and that there was no obligation on the state to investigate Dante's death or to fund representation. Alternatively, if article 2 were engaged, this was not a case in which the duty to provide representation could arise. The Coroner would be able to carry out an effective investigation even if Ms Humberstone were unrepresented.
36. The judge embarked on a consideration of the authorities in relation to the scope of the article 2 duty. After referring briefly to R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), he cited paragraph 89 of Vo v France 40 EHRR 259:

"They [i.e. the principles of Strasbourg jurisprudence derived from Article 2]… require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or private sector, can be determined and those responsible made accountable…".

37. He then referred to R (Takoushis) v Inner London Coroner [2005] EWCA Civ 1440 from which he cited paragraphs 98 and 105 of the judgment of Sir Anthony Clarke MR giving the judgment of the court:

"We recognise [the cases] tend to refer to the state's positive obligation to set up an effective judicial system but it seems to us that central to the court's approach throughout is that the relevant events should be subject to an effective investigation. In order to comply with Article 2, the state must set up a system which involves a practical and effective investigation of the facts….

… It seems to us, however it is analysed, the position is that, where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability."

38. Finally, he considered the purposes of an investigation and quoted a passage from Amin:

"… to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others." (Amin at [31] per Lord Bingham: see also R (L (A Patient) v Secretary of State for Justice [2008] UKHL 68 ("L") especially at [21] and following per Lord Phillips of Worth Matravers)."

39. He concluded at paragraph 51 of his judgment that article 2 would be engaged and there would be a duty to hold an effective investigation even where there was no reason to believe that state agents had failed to perform the primary duty imposed by article 2. He said:

"The state may be sufficiently implicated in a death to trigger the obligation of investigation even without any likelihood or even possibility of the state having breached its primary duty under Article 2 to preserve life."

And further:

"The obligation on the state … may arise in circumstances where the deceased was not in the particular care of the state. … Indeed, the trend in these cases is towards recognising that the state has an obligation to ensure that an effective investigation is conducted in any death in which there may be doubt as to the circumstances of death."

40. In the light of his conclusion as to the scope of the article 2 duty of investigation, it was inevitable that he would conclude, as he did, at paragraphs 72 and 77 of his judgment, that article 2 was engaged. He recognised, at paragraph 75, that there was at present no evidence of wrongdoing by the health care authorities and medical professionals which could amount to more than simple negligence but repeated, at paragraph 76, his view that the duty of investigation could arise even when there is no possibility that a state agent has breached the primary article 2 duty. It was enough that Dante had been in the care of the state at the time of his death and because there was a possibility of agents of the state being responsible for the death. Mr Stutt, he held, had been wrong to hold that article 2 was not engaged in this case.
41. The judge then considered whether the decision to refuse funding breached the state's obligation to carry out an effective investigation. After mentioning the breadth of what he described as the discretion afforded to the Commission in cases such as this, the judge concluded that the refusal had been unlawful. It had not taken into account either the nature and seriousness of the allegations which were likely to arise at the inquest or whether the family would be able to participate fully without funded representation. Both of those were matters which the guidance required the Commission to take into account.
42. As to the first of those issues, the judge considered it to be relevant that Ms Humberstone was likely to face allegations in relation to her treatment of her son. Mr Stutt had taken into account that Ms Humberstone would need to participate in the inquest as Dante's mother and as an eye-witness of events. He had refused to take into account the risk that Ms Humberstone would face significant criticism of her conduct. As the Coroner had made clear, it was likely that Ms Humberstone would face criticism in respect of her long term supervision of Dante's medical treatment. Mr Stutt's refusal to take that into account was, in the judge's view, a vitiating error.
43. As to the second issue, the judge was of the view that Mr Stutt had failed properly to consider whether Ms Humberstone would be able to take an effective part in the inquest if unrepresented. He had failed to take into account her personal characteristics. She had left school at 15 with no academic qualifications. Her evidence was that she had not been able to follow the proceedings at the pre-inquest review, despite assistance from Mr Mahy and the Coroner. Mr Mahy had said that she had found it difficult to follow what was going on at that hearing and that she would not be able to take an active part in the actual inquest unless represented. The Coroner had expressed serious doubts as to her ability to deal with the complexities of the medical issues in relation to causation or the allegations she was likely to face.
44. In the light of those two deficiencies in Mr Stutt's reasoning, his decision could not stand. Judicial review was granted and the matter remitted for reconsideration. As I have said, the Commission did reconsider and changed its mind, without prejudice to the appeal to this Court.

The Appeal to this Court – the submissions

45. In view of the wide scope which Hickinbottom J accorded to the article 2 duty of investigation, it is not surprising that the Commission was anxious to appeal the decision as a matter of principle regardless of the outcome of this particular case. Nor is it surprising that the Ministry of Justice should wish to intervene in the appeal, as it was permitted to do. Although the Ministry served a separate skeleton argument, it appeared on the appeal by Miss Natalie Lieven QC, who also represented the Commission as appellant.
46. Miss Lieven's main submission was that the judge had greatly overstated the scope of the article 2 duty of investigation. He had set the threshold far too low. He had confused and elided the state's duty to provide appropriate judicial systems available for the investigation of deaths and the separate duty to initiate an effective investigation (the enhanced duty of investigation) in a much more limited range of circumstances. The duty of enhanced investigation was parasitic upon and co-terminous with the substantive duty under article 2. The substantive duty clearly arose in cases such as a death in police or prison custody. The threshold might be less easily identifiable in cases where the death occurred while the deceased was in the care of a hospital authority. Only if there was evidence to suggest that the death had been caused or contributed to by some systemic failure in the provision of care would article 2 be engaged; it was not engaged by an allegation of ordinary clinical negligence. There must be clear evidence of a genuine systemic failure; an allegation which was 'dressed up' as a systemic failure would not be enough. For example, an error by an individual health professional must not be 'dressed up' as a systemic failure to provide appropriate training or supervision. She submitted that article 2 was not engaged on the present facts. The only allegations against servants of the state were of ordinary clinical negligence.
47. In any event, even if article 2 were engaged, submitted Miss Lieven, this was not one of the exceptional cases in which representation for Ms Humberstone was likely to be necessary to enable the coroner to conduct an effective investigation. The issues were not serious or complex. The Coroner would assist Ms Humberstone. Moreover, she could obtain funding for legal help which would enable her solicitor to draft submissions to put to the Coroner. That would be enough. Also, the judge had been wrong to take into account the fact that Ms Humberstone might face allegations that she had caused or contributed to the death. The purpose of an article 2 or Middleton inquest was to ensure that any possible failing by the state should be fully investigated. Allegations against the mother, who was not an agent of the state, were irrelevant. Further, the judge had been wrong to criticise Mr Stutt for any failure to take account of Ms Humberstone's personal circumstances. He had given proper consideration to those factors and had been entitled to decide as he had.
48. If the inquest did not give rise to an article 2 duty of enhanced investigation, there was no obligation on the state to provide representation at an inquest. However, this discretion should only be exercised in 'an extremely unusual' case. Miss Lieven submitted that the circumstances would have to be even more exceptional than those required for representation at an article 2 inquest. Mr Stutt had acknowledged the existence of this residual discretion but had been right to refuse to recommend its exercise to the Lord Chancellor.
49. Mr Simblet, counsel for Ms Humberstone, submitted that this probably would be an article 2 inquest. He submitted that recently obtained documents showed that, at the very least, there were allegations that the ambulance service had taken an excessive time to send an ambulance. That gave rise to questions of systemic failure of the state's provision for the ambulance service and article 2 was engaged. In addition there were other allegations of clinical negligence which, if the judge was right in setting the threshold as he did, would attract the article 2 obligation. If this were to be an article 2 inquest, the question to be asked was whether representation was likely to be necessary for the effective conduct of the inquest. There could not be an effective inquest unless the family could take an effective part. Ms Humberstone was entitled to question witnesses. The fact that the mother was of limited education and intelligence was clearly relevant to that question. This was demonstrated by her difficulty in following the early stages of the inquest procedure. The medical issues were complex. The Coroner had indicated in his letter that he was concerned about the mother's difficulties. For those reasons alone, representation was likely to be necessary. Mr Stutt had erred in failing to take account of those difficulties. Even if he were wrong to take account of the allegations against the mother, the judge had been right to quash the decision and require reconsideration.
50. In any event, the judge had been right to take account of the allegations against the mother. The guidance required the Commission to take into account the nature and seriousness of any allegations which are likely to be raised at the inquest, in particular any allegations against the public authorities or other agencies of the state (emphasis added). That requirement plainly envisaged that allegations other than those made against public authorities and agencies of the state could be relevant. The existence of allegations against the mother as well as those against state agencies would increase the complexity of the proceedings and would add to the mother's difficulties in taking an effective part in the proceedings. Mr Stutt had disregarded this factor and this was an additional reason why the decision could not stand.
51. If this were not to be an article 2 inquest, the application fell to be considered under the residual discretion. It was accepted that only in exceptional cases would this discretion be exercised but this was an extremely unusual case. In addition to all the matters that had been raised previously, the fact that the mother was facing criticism in respect of her child care was, at this stage, highly relevant. It was important to her that she should avoid criticism. Not only would it be deeply distressing if the evidence suggested that she had been at fault, such evidence could affect her freedom to care for her other children in future. There was even a possibility that she might face criminal charges. It was also relevant that all the other interested parties were to be represented. She alone would be disadvantaged and this would be unfair. These were extremely unusual circumstances.

Discussion

Engagement of article 2

52. The first question for consideration is whether the inquest into Dante's death would engage the state's article 2 duties of investigation. The Strasbourg jurisprudence on the question of engagement of the obligation of investigation is not always easy to understand and successive courts in this country have struggled to interpret it. It seems to me, on examination of the authorities to which I will shortly turn, that the cases describe two different obligations arising under article 2. First, there is a duty imposed on the state to set up an effective judicial system by which any death, which might possibly entail any allegation of negligence or misconduct against an agent of the state may be adequately investigated and liability established. That will apply in a wide range of circumstances. Second, there is a duty proactively to conduct an effective investigation into the circumstances of a death in a much narrower range of circumstances where the evidence suggests a possible breach of the state's substantive duty to protect the life of those in its direct care. This is the duty which Miss Lieven called the duty of enhanced investigation. It seems to me that the judge did not recognise the existence of these two duties. He appears to have thought that if the wider duty arose, article 2 was engaged and the Lord Chancellor's guidance in respect of article 2 inquests applied. Having struggled with the authorities, I have much sympathy with the judge's position. However, I have come to the conclusion that he was wrong and that the Lord Chancellor's guidance in respect of article 2 inquests was intended to cover only the narrower range of inquests which attract the duty of enhanced investigation.
53. In order to explain my conclusion, it is necessary to trace the judge's reasoning and to examine the passages from the authorities on which he relied. He began, at paragraph 44, by setting out what he described as the primary duty of the state under article 2, namely not to take life and to have in place appropriate legislative and administrative arrangements to protect persons from threats to life while in its care. By way of example, he mentioned the obligation which rests on police and prison authorities to protect those in their care from violence. He referred to the obligation on hospital authorities to adopt systems of work which will protect the lives of patients while in their care. By implication, the judge accepted that the state's substantive (he called it primary) duty under article 2 would not encompass responsibility to protect patients from a simple act of negligence by a health professional. There can be no doubt that that is the law: see for example Savage v South Essex NHS Trust [2009] 1 AC per Lord Rodger of Earlsferry at paragraphs 69 and 70.
54. The judge then turned to consider the duty of investigation, which he described as the 'secondary' obligation. He considered whether it was a discrete obligation but observed that it was more usually regarded as part of the positive obligation to establish a framework of legal protection of the substantive right. In that regard, he referred to the judgment of Richards J, as he then was, in R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 Admin He referred particularly to paragraph 59(iii) of that judgment but did not cite either that or any other of Richards J's conclusions derived from his careful analysis of the relevant Strasbourg case law: Erikson v Italy [1999] 29 EHRR CD 152, Powell v United Kingdom 30 EHRR CD 362, Sieminska v Poland 29 March 2001 and Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002 – I, p 1. All four cases were concerned with the application of art 2 in the context of allegations of medical negligence falling short of systemic failings which would be the direct responsibility of the state.
55. I propose to quote the whole of Richards J's conclusions. Not only are they very helpful, they have been expressly approved by this Court in R (Takoushis) v Inner London Coroner [2006] 1 WLR 461 after detailed consideration of the same four Strasbourg authorities. Also, with one minor modification, I respectfully agree with them. Quoting these conclusions will obviate the necessity for me to analyse those cases myself.
56. At paragraph 59 of his judgment, Richards J said:

"I have not found it is all easy to analyse those four Strasbourg authorities on the application of article 2 to cases of alleged medical negligence. The conclusions I have reached in relation to them, however, are as follows:

(i) Simple negligence in the care and treatment of a patient in hospital, resulting in a patient's death, is not sufficient in itself to amount to a breach of the state's positive obligations under article 2 to protect life.

(ii) Nevertheless, where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation. Given (i) above and the general context, the reference here to potential responsibility for loss of life must in my view include a potential liability in negligence. Thus the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligations to protect life.

(iii) There is a degree of confusion in the expression of how the need for an effective investigation fits within the structure of article 2. Some of the language used links the requirement of an effective investigation with the positive obligation to establish a framework of legal protection, including an effective judicial system for determining the cause of death and any liability on the part of the medical professionals involved. In other places, on the other hand, there is express reference to the separate procedural obligation to investigate. Two considerations lead me to the view that the former rather than the latter is the preferable analysis. First, in each of the cases, the availability of a civil action in negligence and/or the applicant's settlement of such an action is central to the court's conclusion that there has been a sufficient investigation of the death: ie it is the existence of an effective judicial system that seems to be decisive. Secondly, Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002-I, p 1, is both the most recent decision and also a decision of the Grand Chamber; and the judgment in that case analyses the matter solely in terms of the positive obligation to set up an effective judicial system, without reference to the separate procedural obligation to investigate.

(iv) Whether the matter is analysed in terms of the positive obligation to set up an effective judicial system or in terms of the procedural obligation to investigate may not ultimately be of great significance. Although certain minimum criteria are laid down, the actual nature of an investigation required under article 2 varies according to context; and the Strasbourg cases on deaths resulting from alleged medical negligence show that, if the procedural obligation does apply, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it.

(v) On my preferred analysis, however, there is no separate procedural obligation to investigate under article 2 where a death in hospital raises no more than a potential liability in negligence. In such a situation an inquest does play a part, though only a part, in the discharge of the state's positive obligation under article 2 to set up an effective judicial system for determining the cause of death and questions of liability. But it does not need to perform the function of discharging a separate investigative obligation on the state under article 2. It will only be in exceptional cases, where the circumstances give rise to the possibility of a breach of the state's positive obligations to protect life under article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation.

(vi) It also seems to me to follow from my preferred analysis that an inquest cannot be challenged on the ground that it is insufficient to meet the state's positive obligations under article 2. The totality of available procedures, including most obviously the possibility of a civil claim, in negligence, must be looked at in order to determine whether the state has complied with the positive obligation to set up an effective judicial system. Since an inquest forms only one part of the whole, its failure to provide the totality cannot be a ground for finding it incompatible with article 2. This is a sufficient reason for rejecting an alternative submission made briefly by Mr Powers in argument, which I have not otherwise mentioned, to the effect that the failure to hold an effective inquest constituted a breach of the state's positive obligations under article 2."

57. Richards J then considered whether his conclusions were consonant with recent domestic authorities, including Middleton and Khan and concluded that they were.
58. I would summarise his conclusions by saying that article 2 imposes an obligation on the state to set up a judicial system which enables any allegation of possible involvement by a state agent to be investigated. That obligation may be satisfied in this country by criminal or civil proceedings, an inquest and even disciplinary proceedings or any combination of those procedures. This obligation envisages the provision of a facility available to citizens and not an obligation proactively to instigate an investigation. Only in limited circumstances (I depart from Richards J only so far as to decline to call them exceptional) will there be a specific obligation proactively to conduct an investigation. Those limited circumstances arise where the death occurs while the deceased is in the custody of the state or, in the context of allegations against hospital authorities, where the allegations are of a systemic nature such as the failure to provide suitable facilities or adequate staff or appropriate systems of operation. They do not include cases where the only allegations are of 'ordinary' medical negligence.
59. From a reading of the whole of Richards J's conclusions, it will be apparent that, if (as appears to be the case) the judge relied only on the conclusion in paragraph 59(iii), he would not have appreciated the distinction which Richards J was describing and which is evident from a consideration of his conclusions as a whole.
60. Since the judgment in Goodson, as I have already said, Richards J's analysis has been expressly approved in Takoushis. In that case, the Court of Appeal had to consider the adequacy of an inquest where the coroner had refused to go thoroughly into allegations about the adequacy of the triage system operated in the Accident and Emergency Department at St Thomas's Hospital. There the allegations went beyond simple medical negligence and entailed a possible systemic failure. The court recognised the distinction which Richards J had described. When considering the question of the engagement of article 2, at paragraph 38, Sir Anthony Clarke MR, giving the judgment of the court said:

"Before going any further we think it may be helpful to clarify what is meant in this context by saying that article 2 is or is not engaged. For reasons which will become apparent later in this judgment, we are satisfied that article 2 is engaged in the sense that it gives rise to certain obligations on the part of the state whenever a person dies in circumstances which give reasonable grounds for thinking the death may have resulted from a wrongful act of one its agents. A common example is where there are grounds for thinking that a death may have been caused by negligence on the part of a member of staff in an NHS hospital. In such cases the question is not whether article 2 imposes any obligation on the state in relation to the investigation of the death, but whether, in order to discharge its obligation under article 2, the state must carry out an appropriate investigation itself (which in this country will normally be done through the medium of the coroner's inquest) or whether it discharges its obligation by establishing a satisfactory system under which the death can be properly investigated by civil, criminal, disciplinary or other procedures or a combination all of them. As we understand it, when the parties and the judge (Elias J as he then was) spoke in terms of article 2 being engaged what they meant was that the state had an obligation to investigate the death itself through the medium of a coroner's inquest which therefore had to comply in all respects with the requirements of that article."

61. In that passage, we see the Court distinguishing between two types of article 2 obligation in respect of investigation: the wide obligation to provide judicial procedures available to citizens by which any death can be investigated if a citizen wishes to have allegations investigated and the obligation of proactive investigation by the state in a narrower range of circumstances. The decision of the court was that the circumstances of the death did impose on the state the duty of proactive investigation (to be effected by coroner's inquest) because the allegations went beyond the negligence of individual professionals and included allegations of systemic failure. The old inquest was quashed and a new inquest ordered.
62. Having done that, the court went on to examine more closely the question of when article 2 was engaged (in the sense of imposing an obligation of proactive effective investigation) because it recognised that the distinction drawn between individual and systemic neglect may be indistinct and there may be some overlap between the two. (I interrupt my account of this decision to say that the facts of the present case may be a good example of that; it may not be easy to say whether the inquest into Dante's death will entail allegations of systemic neglect or only allegations of individual negligence.)
63. The court began its analysis by considering a group of cases concerned with deaths caused by the direct actions of state agents (eg shooting by a soldier) and deaths in custody in whatever detailed circumstances. It noted the affirmation within these cases of the obligation on the state to conduct a full and effective investigation into the death and also to provide representation for the close family members where such was necessary to enable them to participate in the investigation. The court noted the case of Middleton (which was a death in custody case) and its conclusion that an inquest which investigated 'how' the deceased died but not 'by what means and in what circumstances' would not comply with the article 2 obligation. By the article 2 obligation, the court meant the obligation of proactive effective investigation.
64. The court then turned to examine the nature of the duty in respect of voluntary patients who died in hospitals. It considered Richards J's judgment and analysed for itself the four Strasbourg cases he had considered. It also considered Vo v France (not considered by Richards J) which was to similar effect as Powell and Calvelli and Ciglio. The court expressly approved Richards J's analysis, subject only to the reservation that the judicial system which provided for investigation by civil proceedings might not be providing a practical and effective investigation if, for example, the amount of money which could be recovered in such proceedings made their pursuit impractical or because an admission of liability prevented the continuance of any examination of the circumstances. The court expressed its conclusions as follows:

"105. Subject to what is said in paras 97-103 above (where the court expressed its reservations about the effectiveness of adversarial civil proceedings) we agree with those conclusions. It seems to us that, however it is analysed, the position is that, where a person dies as a result of what is arguable medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of article 2 as identified by the European court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability.

106. The question is whether the system in operation in England in this case meets those requirements. In our opinion it does. The system includes both the possibility of civil process and, importantly, the inquest. We can understand the point that the possibility of civil proceedings alone might be sufficient because they do not make financial sense and may not end in a trial at which the issues are investigated. However, in the context of the other procedures available, an inquest of the traditional kind, without any reading down of the 1988 Act (The Coroners Act 1988), by giving a wider meaning to "how" as envisaged in the Middleton case [2004] 2 AC 182, and provided that it is carries out the kind of full and fair investigation which is discussed earlier in this judgment … in our opinion satisfies the requirement that there will be a public investigation of the facts which will be both practical and effective.

107. In these circumstances, while article 2 is engaged in the sense described above, the present system including the inquest does not fall short it its requirements in any way. On the contrary, it complies with it."

65. I observe that the whole of this section of the judgment is obiter. It concerns cases involving allegations of simple negligence rather than systemic negligence. The legal system in this country (with its various available components) complies with the wider obligations imposed by article 2. The ratio decidendi of the decision was that the allegations to be investigated in that particular case included systemic failures so that article 2 was engaged in the sense that it gave rise to a proactive duty of enhanced investigation.
66. I respectfully agree with the court's conclusions and would adopt them. It seems to me that they are consistent with what the House of Lords said in R (Gentle and another) v Prime Minister and others [2008] 1 AC 1356 to the effect that the procedural duty to investigate whether a death involved a breach of the substantive duty to protect life imposed by article 2 was parasitic upon the substantive duty and did not exist independently of it.
67. I am satisfied from examination of all these authorities that, in respect of duties of investigation, there are two senses in which article 2 may be said to be engaged. It may be engaged in a very wide range of cases in which there is an obligation to provide a legal system by which any citizen may access an open and independent investigation of the circumstances of the death. The system provided in England and Wales, which includes the availability of civil proceedings and which will in practice include a coroner's inquest, will always satisfy that obligation. In addition, article 2 will be engaged in the much narrower range of cases where there is at least an arguable case that the state has been in breach of its substantive duty to protect life; in such cases the obligation is proactively to initiate a thorough investigation into the circumstances of the death.
68. Turning back to Hickinbottom J's consideration of the engagement of article 2, it is apparent to me that he has not appreciated the distinction between these two obligations. He has in effect elided them. He has taken passages from the authorities which relate to the obligation to provide adequate legal processes which arises in a wide range of circumstances, and has concluded that article 2 is 'engaged' in any case in which there is an allegation of negligence by a health professional. He has not separately identified the proactive duty of investigation which lies on the state in the narrower range of circumstances where the state's substantive article 2 obligation may have been breached. Because he elided the two obligations, he has concluded that article 2 was engaged in the present circumstances even though he was of the view that the allegations to be looked into were of 'simple' individual negligence. The judge has not enquired whether the present case falls within the narrower group of cases where there also arises an obligation of proactive effective investigation. Nor has he considered whether the reference to article 2 in the Lord Chancellor's guidance relates to cases involving the wider obligation or only to the obligation of enhanced investigation. To those matters I will now turn.

Does this inquest engage the article 2 obligation of proactive investigation?

69. At the time of Mr Stutt's decision and that of the hearing before Hickinbottom J, it was not at all clear from the papers whether the Coroner would have to consider an allegation of systemic failure such as would require him to hold a Middleton inquest. The allegation against the nurse at the GP's surgery who declined to nebulise Dante in the late afternoon is clearly one of personal negligence or misjudgement. The allegation that the paramedic dropped something Dante's throat, if it is conduct to be criticised at all, could amount to no more than personal carelessness. The allegations which may be made against Ms Humberstone herself are not relevant to this issue. The only allegation which could be said to entail any possibility of systemic failure by the state is that the ambulance took a long time to arrive. Until shortly before the hearing in this Court, there was no evidence that the Ambulance Service was under-provisioned or that its operational systems were inappropriate. However, at the second pre-inquest review, Mr Mahy received many documents including a report from the Yorkshire Ambulance Service entitled Serious Untoward Incident. It relates to the Service's response to the request for help when Dante was suffering his attack. It appears that there was some delay in despatching an ambulance. There appear to have been two possible explanations for that delay. One is that all ambulances save one were busy and the only ambulance not actively occupied was not available because the crew was on a meal break. The other explanation is that the person who took the call and who despatched the single paramedic, (described as a rapid response vehicle) did not realise that a double-manned ambulance was or would be required as well. The chronology of events attached to this report shows that no attempt had been made to despatch an ambulance until the single paramedic telephoned into control from the house to ask if the ambulance was on its way. It was not and it took a further 6 minutes before an ambulance was despatched. It arrived 5 minutes later.
70. I am persuaded that this evidence, not previously available, does disclose sufficient grounds for concern about the resources and operational systems of the Yorkshire Ambulance Service as to engage the article 2 obligation proactively to undertake an enhanced investigation. It seems to me that the allegations are similar in nature to the allegations about the adequacy of the triage system which arose for consideration in Takoushis. I must make it plain that, without the Ambulance Service report, I would have said that the duty of enhanced investigation did not arise and I consider that, on the evidence before him, Mr Stutt was right so to conclude. The judge was also right to say that the allegations then made appeared to entail only individual negligence.
71. As I have said, it is not always easy to decide whether an inquest will engage article 2 and it is not possible to say that an allegation of individual negligence will never engage article 2. In Khan, the court said that a flexible approach must be taken and that, in the circumstances which there prevailed, the article 2 obligation arose. There the allegations against individual health professionals were not of systems failure or inadequacy of provision. There were allegations of gross negligence against individual health professionals and an allegation of a concerted cover up. That was enough to engage article 2. I repeat that it will be necessary for care to be taken to ensure that allegations of individual negligence are not dressed up as systemic failures but, provided that this possibility is always borne in mind, the appropriate conclusion should not be elusive.
72. In that regard, it seems to me that the person best placed to decide whether article 2 is engaged is the coroner who is to conduct the inquest. In the present case, the Coroner did not volunteer his opinion on this matter when writing his two letters in support of Ms Humberstone's application for representation. Knowing that he is a very experienced coroner, I am inclined to infer that he did not then have sufficient material on which to form a concluded view. I think that it would be helpful to the Commission if a coroner who wishes to support an application for representation tells the Commission whether or not he intends to conduct a Middleton inquest.

The Lord Chancellor's guidance

73. Returning now to the provisions governing the grant of legal representation. The Lord Chancellor's guidance draws a distinction between those inquests where article 2 is engaged and those where it is not. I am quite satisfied that the intention behind this guidance is that (save where the residual discretion may be invoked in extremely unusual cases) funding for representation will be provided only in the circumstances where the law requires it to be provided, namely where there is an article 2 obligation on the state to initiate an effective investigation and where representation is likely to be necessary to enable the close family to play an effective part in that investigation. His guidance must provide for representation where the law requires it but he need go no further.
74. I am satisfied that the duty in some circumstances to provide legal representation arises only in proceedings where article 2 is engaged and not otherwise. Where article 2 is not engaged, Parliament has given the Lord Chancellor the power to exercise a residual discretion in any individual case and he is entitled to issue guidance in whatever terms he thinks fit. That includes limiting the exercise of the discretion to 'extremely unusual' cases.
75. There are several respects in which I consider that the guidance in relation to article 2 inquests is less than satisfactory. The first is the way in which the test for representation is expressed. At paragraph 27.2. 8, it is said that the funded representation is likely to be necessary to enable the coroner to carry out an effective investigation into the death. At paragraph 27.3.3, it is said that advocacy services may be funded where the Commission is satisfied that funded representation is necessary to assist the coroner to investigate the case effectively and establish the facts. In both these paragraphs, the emphasis is on the needs of the coroner so that he can conduct an effective investigation. In one sense that is right; the duty on the state is fulfilled by the coroner's effective investigation. But, for the investigation to be effective, the family must be able to play an effective part. So, the immediate question for the decision–maker at the Commission, considering whether to recommend representation, is whether such is necessary to enable to family to play an effective part. In other words, the decision must focus on the effective participation of the family and not on the needs of the coroner.
76. My second concern relates to the stipulation that representation will only be given for an article 2 inquest in exceptional cases. This expression is used several times in the guidance. I recognise that the term exceptional was used in that context first by Richards J in Goodson and by the Court of Appeal in Khan where the court said, at paragraph 74:

"Although the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented, every rule has its exceptions and this in our judgment is an exceptional case."

77. It is however, important to remember the test which must be applied when deciding whether the state should fund representation. The duty to provide representation is derived from the fifth criterion which must be satisfied in an enhanced investigation as described in Jordan v United Kingdom [2003] 37 EHRR 52. The requirement is that the next of kin must be involved in the procedure to the extent necessary to safeguard their legitimate interests. This requirement was adopted by Lord Bingham of Cornhill in R (Amin) v Secretary of State for Home Department [2004] 1 AC 653 at para 20. From that requirement flows the duty to provide representation where it is likely to be necessary to enable the next of kin to play an effective part in the proceedings.
78. Whether such representation is likely to be necessary in a particular case is a matter of judgment dependent on the facts of the individual case and, as the Lord Chancellor's guidance correctly states, on all the circumstances of the case. However, I do not think that it should be necessary or appropriate to classify a case as 'exceptional' before it can be adjudged to give rise to a need for representation. In my judgment, references to 'exceptionality' are likely to take the mind of the decision-maker away from the question properly to be considered. I can understand that the court in Khan was anxious to avoid giving the impression that representation would be necessary in a great many cases. I can understand why it thought it appropriate to suggest that it would not be necessary in most cases, although I am unable to understand how and why the court felt able to go so far as to say that it would not be necessary in 'the overwhelming majority of cases'. Without a statistical analysis, I do not think anyone could say in what proportion of cases representation will be likely to be necessary.
79. A further concern arises from the statement at paragraph 27.4.9 that the starting point for consideration of whether funded representation will be necessary is that in the majority of cases the family will be able to participate effectively without the need for advocacy services. It is said that in general the ability to attend and understand the proceedings together with an opportunity to raise any particular matter of concern with the coroner will be sufficient. First, this passage seems to create a presumption against the grant of representation which I do not think is consistent with the application of the test. But, in addition, the passage seems to overlook the right of a close family member, pursuant to rule 20 of the Coroners' Rules to question witnesses. Of course some family members will be able to exercise that right competently, although I think it will often be difficult for them to do so. But to suggest that in general it will be enough for them to be able to tell the coroner of their concerns seems to me to contemplate that they can properly be deprived of their right to question witnesses.

The application of the guidance to this case

80. The judge approached this case on the basis that there would be an article 2 inquest. On the facts as they were then known, I think he was wrong to do so. However, I am now of the view that this will have to be an article 2 inquest and I propose therefore to examine the judge's reasoning as if he were right to hold that article 2 was engaged.
81. The judge held that Mr Stutt had been wrong to exclude from his consideration the fact that Ms Humberstone was likely to face allegations of negligence contributing to her son's death. I am quite satisfied that the judge was right to hold that this was a relevant consideration. At paragraph 27.2.9, the guidance enjoins the decision maker to consider the nature and seriousness of any allegations which are likely to be raised at the inquest, including in particular any allegations against public authorities or other agencies of the state. From that sentence it is clear that allegations against others besides state agents are also relevant.
82. The judge was also critical of Mr Stutt for failing to take account of the particular educational and social difficulties which Ms Humberstone would face if unrepresented. I have already summarised the judge's observations and holdings on this topic. I am quite satisfied that the judge was right about this. Paragraph 27.4.8(c) specifically mentions as relevant:

"Whether the family may be able to participate effectively in the inquest without funded representation. This generally depends on the nature of the issues raised and the particular circumstances of the family."

This subparagraph is rather odd in that it sets out the basic test for whether representation should be authorised; yet it is included as one of a list of factors to be taken into account. In any event, it puts beyond doubt the relevance of Ms Humberstone's intellectual abilities and the emotional perturbation she might be expected to suffer during the inquest. I mention in passing that, in Khan, the court particularly mentioned the difficulties which the family would experience in trying to participate. Mr Khan was an intelligent and educated man. He was suffering from depression as the result of the events surrounding his daughter's death. The issues raised would be complex and he would not be able to cope with them alone. Mr Stutt did not make any comparable examination of Ms Humberstone's difficulties.

83. Although the judge fell into error as I have described, he was right in my view in his identification of Mr Stutt's errors.
84. I wish to add that, even if I had come to the conclusion that this case did not engage article 2 (as I would have done but for the recent evidence), I would still have granted judicial review of it. Mr Stutt did not appear to give any reasons for considering that this was not an extremely unusual case which would justify funding outside the article 2 provision. His letter acknowledged the existence of the residual power but did not deal with it. It is not my function to say how I would have decided that issue. All I need say is that there were points to be made in Ms Humberstone's favour which deserved consideration.

Conclusion

85. For the reasons which I have given, which differ in some respects from the reasons given by the judge, I would dismiss this appeal.

Lord Justice Leveson

86. I agree.

Lord Justice Maurice Kay

87. I also agree.