Application of Article 2 in Misadventure cases.

Libby Anderson considers a recent judgment regarding the applicability of article 2 to misadventure cases at inquest. 

Introduction

Key case: R (Robinson) v HM Assistant Coroner for Blackpool & Chief Constable for Lancashire [2025] EWHC 781 (Admin)

In a judgment handed down on 3 April 2025, Mr Justice Kerr dismissed three grounds for judicial review in a case in which the jury returned a conclusion of death by misadventure.

The inquest arose from the death of Mr Robinson, who was the driver of a vehicle marked as stolen which activated an ANPR camera in Blackpool. When stopped by police following a short pursuit, Mr Robinson exited the car and police sought to restrain him. In the course of the struggle, he placed a package of drugs in his mouth and quickly became unresponsive. Police commenced CPR and called for ambulance assistance. Paramedics were able to remove the package using forceps, and Mr Robinson was taken to hospital. Ultimately, Mr Robinson suffered a fatal acute upper airway obstruction despite the efforts of police and paramedics to assist him.

The inquest was heard over 5 days, the evidence being heard over first four days and submissions being made on day five. The coroner deferred the decision on whether Article 2 was engaged until the conclusion of the evidence. The family sought to persuade the coroner that Article 2 was engaged on the grounds that police had breached their positive obligation to protect life under Article 2, including the use of excessive force in circumstances where officers knew that Mr Robinson had swallowed a package, and that incorrect first aid procedures were applied. They invited the coroner to leave the conclusion of unlawful killing and the finding of neglect open to the jury. Having heard submissions, the coroner declined to engage Article 2 and left the conclusion of misadventure and the option of recording a narrative verdict open to the jury. A conclusion of misadventure was returned. No PFD report was issued in this case. Instead, the Coroner also wrote a Letter of Concern to the National College of Policing to address issues around the training of officers around the removal of drug packages and subsequent management.

The judicial review considered the applicability of Article 2 to this case, the adequacy of the coroner’s summing up, and the failure to issue a PFD report in the circumstances. The claimant, the deceased’s mother, sought a fresh inquest and declaratory relief.

Applicability of Article 2

In the High Court, the claimant argued that the coroner should have determined that the circumstances of Mr Robinson’s death were such that the procedural obligation on the state arose to conduct an inquest involving an enhanced investigation in accordance with article 2 [paras 36 – 45].

The primary submission was that the circumstances of the death meant that article 2 automatically applied, i.e. that Mr Robinson’s death of non-natural causes in police custody automatically triggered article 2. The claimant argued that, if necessary, the court should extend the categories of cases to which article 2 automatically applies, to include:

(1) unnatural death occurring while in the involuntary (whether lawful or unlawful) custody or control of the state;

(2) unnatural death occurring while in the involuntary custody or control of the police following the deceased committing an intentional act liable to cause himself harm;

(3) unnatural death occurring while in the involuntary custody or control or the police at a time when the arresting or detaining officers are aware that the person has swallowed a package that consequently poses a risk to life;

(4) death in police custody or control after the deceased entered a physical or mental state needing medical emergency care, of which the police were or should have been aware; and

(5) death occurring after the use of force by police officers to effect or in the course of an arrest or physical control.

The claimant also argued that there was an arguable breach by state agents of the positive operational duty under article 2 to protect life, arising because the police officers knew/ought to have known that there was a real and immediate (i.e. present and continuing) risk to Mr Robinson’s life.

The Court found no good reason to extend the existing categories of case in which Article 2 applies automatically [para 55]. The circumstances of the death must be such that “they fall into a category which necessarily gives rise, in every case falling within the category, to a legitimate ground to suspect state responsibility by way of breach of a substantive article 2 obligation” (Popplewell LJ in Morahan at [122(7)]).

The cause of death here was misadventure, i.e. doing an intended act with unintended fatal consequences for the doer [para 57], as distinguished from a suicide or unlawful killing while in state custody, where article 2 would be engaged. In considering the suggested extended categories, the court stated:

“Misadventure cases are not apt to attract the automatic application of article 2 because the misadventure may be unpredictable; the state agents may bear no blame for it; and it may require urgent medical attention beyond their expertise, where the state’s obligation would be, at most, to call for it and do their best with first aid meanwhile” [para 61].

The court concluded that the coroner was right to ask himself whether there was, on the evidence before him, an arguable breach of the positive operational duty to protect Mr Robinson’s life [para 62] and agreed that “if the operational duty arose at all, it was not arguably breached because the officers did not fail to take reasonable steps within their powers to protect Mr Robinson’s life. Although arguably they should have commenced CPR a few minutes earlier, that would probably not have made any difference to the outcome” [para 69].

The court ruled that there was no violation of article 2 and so article 2 did not apply, and this ground of challenge did not succeed.

Adequacy of summing up

The family alleged that, even if the coroner was correct that an article 2 inquest was not required, the summing up was inadequate, and that the jury may have been wrongly directed that they must choose between a simple verdict of misadventure and a narrative verdict without appreciating that they could do both. It was also submitted that the summing up was biased in favour of the police and that the coroner should have placed more weight on criticisms of the officers’ actions by expert witnesses [paras 72 – 76].

The court found that there was not much force to these criticisms and that the summing up was adequate [para 83]. The summing up as to whether the short form conclusion of misadventure and the narrative conclusion were alternatives or not could have been clearer, but equally, no party sought clarification in respect of this [para 90]. However, any unclearness was not fatal to the integrity of the inquest [para 91]. There is no authority that a jury can be compelled to return a narrative conclusion, whether in addition to a short form conclusion or otherwise [para 92].

The court rejected the submission of bias in favour of the police, stating “without the use of hindsight, this was a dangerous situation in which the officers were entitled to look to their own safety and prevent the suspect from escaping” [para 85].

This ground therefore failed.

Failure to issue PFD

The coroner declined to make a PFD report because such a report must be made in the circumstances stated in the Coroners and Justice Act 2009, Schedule 5, paragraph 7, which requires a senior coroner investigating a death to make a report where:

“(1) … (b) anything revealed by the investigation gives rise to a concern that circumstances creating a risk of other deaths will occur, or will continue to exist, in the future, and (c) in the coroner's opinion, action should be taken to prevent the occurrence or continuation of such circumstances, or to eliminate or reduce the risk of death created by such circumstances … .”

Any PFD report must also comply with the process stated in the Coroners (Investigations) Regulations 2013, regulation 28.

The coroner therefore proposed to send a non-statutory letter of concern instead, setting out the concerns raised by Mr Robinson’s death and suggesting that provision of training scenarios based on the incident involving Mr Robinson may be beneficial. This was consistent with the evidence of Dr Forrest, who provided medical evidence about the response training of police officers. He explained that the enhanced training of police officers does not cover the removal of large foreign objects with airway instruments, or the scenario where large drug packages obstruct or burst in a person’s upper airway. He recommended that removal of drug packages and subsequent management should be “highlighted nationally to senior officers in each force.” The coroner invited each recipient to confirm their response and how such learning points may be considered.

The claimant argued that the coroner evaded his statutory duty to make a PFD report and had not complied with Revised Guidance No.5, and that this decision was wrong in principle [para 96-97].

The court found that for this ground to succeed, the claimant would have to establish that the coroner would be acting irrationally if he were to have formed the view that one or both criteria were not met [para 100]. The coroner had not wanted to dictate priorities in the training agenda but sought to flag the issue and allow those with the power to take such action on what their view was [paras 102-103]. The coroner took a carefully considered and rational view, not out of line with Revised Guidance No. 5 [para 103].

This ground was dismissed.

Conclusion

All three grounds failed. The court concluded that if either of the first two grounds had succeeded, it would have been hesitant to order a fresh inquest. The original inquest had a wide scope, the evidence was plentiful and thorough and was largely ‘akin to an article 2 inquest’ [para 104]. A fresh inquest would involve the same evidence and would elicit no new material facts but would only give a fresh jury the opportunity to agree or disagree with the first one, on the same facts, which would not be justified [para 107]. Even if a PFD report had been mandatory, such a report is ancillary to the inquest conclusion and would not require a fresh inquest to be held [para 104].

Comment

The primary interest in this case lies in its consideration of how article 2 may or may not be brought into play in cases involving misadventure, particularly in police cases given the fast-moving nature of many interactions between police and the public which may result in injury or death.

The question in such cases is often the degree to which police officers were to blame. In cases where there is blame, narrative verdicts may well be appropriate. However, in this case, the jury plainly took the view that significant blame did not attach to the police and so returned the short form conclusion of misadventure; the court found that the evidence supported this proposition [para 106]. This case emphasised that there is no authority or power to compel a narrative verdict, stating:

“the growth of narrative conclusions, spurred by the advent of article 2 and encouraged by grieving and aggrieved families has to be balanced against discouragement of lengthy accounts of the circumstances of death” [para 105].

This case also reaffirmed the principle that challenges or issues relating to PFD reports, as matters ancillary to the main inquest, would not lead to a fresh inquest being ordered even if the coroner’s approach was found to be flawed.

It is interesting to note that the High Court often used the word ‘verdict’ rather than ‘conclusion’ to describe the jury’s decision throughout the judgment, notwithstanding the fact that changes to coronial law in 2013 introduced the term ‘conclusions’ to replace ‘verdict’ in order to reflect the non-adversarial nature of proceedings.

Click here to read the judgment.