Humberstone, R (on the application of) v Legal Services Commission

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.

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.”

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;

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.

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’.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

The Coroner was joined as an interested party but he took no part in the proceedings.

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.

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."

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.

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.”

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.

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…".

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."

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).”

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.”

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

I agree.

I also agree.