Grice - The Obligations of the State to Investigate Death.
29 March 2021
Thomas Buxton considers the case of R (on the application of Sharon Grice) v Her Majesty’s Senior Coroner of Brighton and Hove v The Chief Constable of Sussex Police, Sussex Partnership NHS Foundation Trust  EWHC 3581 (Admin)
In this decision from December last year, the High Court provides an interesting and helpful examination of the scope of the requirements under Article 2 ECHR for an effective investigation.
The Claimant applied for judicial review of a Coroner’s decision not to reopen the inquest into her daughter’s murder following a criminal trial. L, her former partner, was convicted of her (D’s) murder.
The parties met at their place of employment in the summer of 2015. They began a relationship a short time later which broke up at the end of the year. D complained thereafter to police about L’s stalking behaviour involving waiting outside her home, damaging and slashing the tyres on her and her new boyfriend’s cars, and sending unsolicited notes and flowers. L was given a verbal warning. A month later police arrested L for assaulting D outside her home: he was released without charge after showing police text messages indicating that he was in a continuing relationship with D.
The police issued D with a fixed penalty notice for wasting police time (she did not initially tell them that she and L had been in a relationship.) Incidents escalated in frequency and seriousness, including one where L used a house key he had taken after forcibly entering D’s premises, to enter her home while she was sleeping. He was given a caution for theft and issued with a notice for harassment. Two further complaints were made to police by D; they were logged as low risk, after which D did not report any further incidents for fear she would not be taken seriously. A few weeks later, on 25 August 2016 D’s body was found on the bed at her home, with her throat slit.
L was arrested, interviewed and charged with her murder. The Coroner opened and adjourned an inquest into D’s death pending the criminal investigation and trial. On 22 March 2017 L was convicted of murder. In his sentencing remarks the judge criticised the inadequacy of the police response to D’s complaints. Four further investigations or reviews were subsequently conducted as follows: (a) a statutory Domestic Homicide Review; (b) an investigation into the case by the IOPC; (c) an inspection by HM Inspectorate of Constabulary and Fire & rescue Services concerning Sussex Police and its response to cases of stalking and harassment; and (d) police disciplinary proceedings, resulting in findings of misconduct against three officers.
The family invited the Coroner to resume the inquest, arguing that the criminal trial had focused on the facts of the killing rather than on the conduct of the police in relation to how they treated D or their breaches of duty towards her. It was not in dispute that Article 2 was engaged by reason of potential breach of their operational duty to safeguard the life of D. The Coroner decided not to resume the inquest and held that the criminal trial and other investigations which followed were sufficient to meet the investigative obligation under Article 2 ECHR. It was this decision that was challenged.
In refusing the application for judicial review, Mr Justice Garnham held that the Coroner’s decision was correct and did not breach Article 2: ‘In my judgment, there were here prompt independent enquiries initiated by the state of its own motion, which were effective, both in the manner in which they established the relevant facts and in the results they achieved, which provided a sufficient element of public scrutiny of the investigation or its results to secure proper accountability and which involved the family to the extent necessary to safeguard their legitimate interests.’ .
Giving judgment, the Court set out the statutory scheme under the Coroners and Justice Act 2009 (“CJA”) explaining the general provisions and principles governing inquests, whose purpose is to answer the four factual questions: who, how, when and where the deceased came by his/her death (“by what means”). Following the incorporation of the ECHR into domestic law, Article 2 (the right to life) imposes procedural obligations in respect of investigating deaths: ‘Where the Article 2 procedural obligation to establish a Convention-compliant investigation is engaged in relation to a death…. the statutory provisions governing inquest conclusions are modified so that the question ‘how’ the deceased came by his/her death is read as “by what means and in what circumstances” the deceased came to die. In practice, this can open up scope for conclusions addressing wider circumstances of death and underlying causes, and it may require a somewhat expanded form of narrative conclusion…. It has been given statutory force in such inquests by section 5(2) of the CJA.’ .
That procedural obligation applied in this case because questions existed as to whether the state or its agents (the police) breached one or more of the substantive Article 2 duties in relation to the death.
The Court reminded itself that the Coroner is given a broad discretion as to the scope of the inquiry and the engagement of Article 2 will have little effect on the scope of inquiry or proceedings: ‘This is because any properly conducted inquest will consider the circumstances surrounding and events leading to the death. The key effect of Article 2 engagement is upon conclusions at the inquest.’ .
Having been informed that a person had been charged with the murder of D the Coroner was obliged to suspend the inquest. Paragraph 8(1) of Schedule 1 of the CJA provides that once suspended an investigation may not be resumed unless, but must be resumed if, the senior coroner thinks that there is sufficient reason for resuming it. The decision of a Coroner on whether or not to resume an inquest has been described as one “of a highly discretionary character”. Here the central issue was whether other procedures had collectively answered the statutory questions (including how the deceased came to die) in a manner which adequately served the public interest. It fell therefore to the Coroner to consider the totality of the investigations and procedures undertaken at the time of her decision.
There is no prescriptive approach to the form of an Article 2 investigation and, although its precise constituents will vary from case to case, the minimum requirements were set out in Jordan v United Kingdom (24746/94) (2003) 37 EHRR 2,  5 WLUK 158 : the authorities must act of their own motion; the investigation must be independent, effective and reasonably prompt; there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability; and there must be involvement of the next of kin to the extent necessary to safeguard his or her legitimate interests. In delivering his judgment, Garnham J went on to observe that it was also important to record what was not required:
- No particular procedure had to be adopted in order to fulfil the Jordan requirements. The requirements can be satisfied by a set of separate investigations, rather than by a single, unified procedure.
- The requirement for the family of the deceased to be involved in the investigation did not mean the investigating authorities had to satisfy every request for a particular step to be taken.
- The requirement for public scrutiny did not invariably require a public hearing nor did it mean that the family had to be able directly to test the evidence.
- There was no requirement that each element of the investigative procedure met each one of the tests. [84-85].
The true test is, therefore, whether the processes, viewed collectively, meet the State’s investigative obligations and are Convention-compliant. The murder trial was not sufficient here because it became apparent that there were serious failings by the police contributing to D’s death. The Court observed that, in Article 2 terms, the trial went beyond determining L’s criminal responsibility. The sentencing judge’s remarks (intended to bring the failings of the police to public attention) prompted the IOPC and other investigations. These were prompt and effective; they variously identified individual and corporate failings, involved the family and published findings, ensuring a degree of public scrutiny to secure accountability. Disciplinary proceedings also ensured that the officers involved were held to account.
The family was devastated and outraged by the events and had derived no or little comfort from the investigations following upon D’s death. This may have led to a wish to further challenge the attitude of Sussex police and find a means to enquire more deeply into the perceived attitude of the force and its systemic failure to protect victims of stalking. This case defined the limits of investigation on its particular facts, proscribing the use of the coronial process as a form of ‘public enquiry’ where, as the Coroner herself submitted, other investigations had adequately covered or gone beyond the remit of an Article 2 inquest.
At the inquest’s close, and so as not to be inconsistent with L’s conviction for murder, the conclusion could only be ‘unlawful killing’. Moreover, a Regulation 28 report requiring action to prevent future deaths could achieve no more than that which had already been provided through the independent inquiries already undertaken.