Challender & Anor, R (on the application of) v Legal Services Commission

This case arises out of the death of Michael Challender on 29 September 2000. A coroner’s inquest into the death opened on 13 October 2000 but was then adjourned pending a police investigation which has now been concluded. The claimants, who are respectively the sister and the partner of the deceased, applied for public funding to be legally represented at the reopened inquest. That application has been refused by the Legal Services Commission (“the LSC”). The claimants challenge that refusal as being in breach of the European Convention on Human Rights, the main focus of the argument being on article 2. They seek an order requiring the LSC to request the Lord Chancellor to authorise legal representation at the inquest.

The factual background is as follows. Michael Challender was found dead in a friend’s flat at 177 Wulfruna Court, Wolverhampton. He had spent the previous evening at a different flat and had been moved to 177 Wulfruna Court in the early hours of the morning. There is CCTV evidence apparently showing him being moved in a wheelbarrow from one flat to the other by a group of men at a time when he was unconscious. It is not certain where he died. Post mortem examinations showed that he died of respiratory arrest associated with an overdose of alcohol and morphine/heroin. Information was supplied to the police to suggest that he had been injected with heroin by another (named) person shortly before his death, though there was no suggestion of any element of compulsion or lack of consent in relation to the act of injection. There is conflicting expert medical evidence relating to that issue.

A consultant pathologist, Mr Scott, who carried out the second post mortem, concluded:

“1.

There was no evidence that the deceased died of external violence.

2.

He appears to have died as a result of an overdose of Morphine combined with alcohol. There was no evidence of a recent injection site and the levels of the drug found are consistent with ingestion of Morphine or Heroin. The combined Morphine and alcohol have the effect of depressing the respiratory centres of the brain ….”

A consultant forensic pathologist, Dr Cary, instructed on behalf of the claimants has expressed a different view:

“6.

In my opinion all the findings are in keeping with opiate intoxication through the injection of heroin being a significant contributory factor to death. The lack of demonstration of a needle puncture mark in no way excludes the most likely mode of administration of intravenous injection. Some issues could be clarified through further testing as described above. However the findings at present are consistent with the witness evidence which would appear to provide prima facie evidence that death has arisen as the result of administration of heroin through injection by a third party.”

The claimants prefer the opinion of Dr Cary. They believe that the deceased was injected with heroin by a third party in circumstances that amounted to unlawful killing.

The CPS, following two police investigations and advice from leading counsel, informed the claimants that it had been decided not to bring a prosecution. A letter dated 25 June 2002 to the first claimant from the Chief Crown Prosecutor at CPS West Midlands sets out in considerable detail the reasons why that decision was taken. The central part of the letter reads:

“Information had been supplied to the police to suggest Michael had been injected with heroin shortly before his death by [A] and it is for this reason that he and the other occupants of the flat were arrested.

The injection of drugs by one person into another is an unlawful act which, if it causes death, can lead to a conviction of manslaughter. Whilst the law on this point is by no means certain and has been heavily criticised, the case was investigated by the police to establish the possibility of prosecuting an offender on this basis.

To do so it is necessary to place enough admissible evidence before a jury to satisfy them so they are sure that one or more defendants committed an unlawful act and thereby a conviction can follows.

The girlfriend of [A] (Miss [D]) gave an account in interview whereby she states she saw [A] inject heroin into your brother. She has refused to make a statement to this effect or give evidence in support of a prosecution and therefore we cannot rely on her as a witness. In addition to this, she was using heroin on the evening in question and this taken together with factors I cannot disclose, makes her an unreliable witness.

A witness [H] made a statement to the police in which he says [A] admitted to him that he had given your brother heroin. He does not say that he received an admission that [A] had injected heroin, but this is the inference he makes and the reason for the police investigation. [A] denies these issues which places the burden of proof upon the prosecution to prove this fact.

[H] remains the only person capable of giving evidence on this crucial issue.

There are a number of reasons why the evidence of [H] cannot be relied upon to prove an unlawful injection of heroin.

1.

The two post mortems do no support the theory that heroin was injected. They have found no evidence of a site of injection. The conclusion drawn is that the level of drug found is consistent with ingestion of heroin and alcohol, as opposed to injection.

2.

[H] does not state he received an admission regarding the injection of heroin.

3.

[H] has certain features in respect of his history which for legal reasons I am unable to expand upon but which makes him an unreliable witness.

4.

In your statement dated 26 November 2001 you refer to the fact that [H] is now unwilling to give evidence without the support of others. There are no other witnesses who will agree to make statements or give evidence.

5.

In addition to the above the police in their second investigation obtained evidence to be able to prove that your brother had taken drugs in the past and had been admitted to hospital in May 2000 during which he was treated for a drugs overdose.

Whilst I appreciate that you have found it difficult to accept your brother may have taken drugs, the fact remains that there are reliable witnesses capable of and willing to give that evidence. In relation to the night of your brother’s death, there are no reliable witnesses to prove your brother was injected with drugs.”

The letter went on to consider the outcome of an investigation into an earlier, apparently heroin-related, death in the same flat. It stated that the investigation did not prove or suggest any unlawful act and therefore had no evidential value when considering the facts of Michael Challender’s case. A further matter looked at had been the circumstances surrounding the movement of Michael from one flat to another, together with the delay in calling for medical assistance. Since it was not possible to prove the unlawful supply of a drug and the evidence heavily supported the assertion that Michael was already dead when moved to a different location, it was considered that the failure to act would have no legal consequence and could not give rise to liability for a criminal offence.

What the claimants say is that the inquiry at the inquest will focus on whether a third party administered, encouraged or assisted in the injection of heroin into the deceased, and that the factual and legal issues are complex. Legal representation for the claimants is needed in order to assist the coroner to investigate the case effectively. An effective inquest is not only important as a means of assuaging the family's grief and ensuring that they know how the death occurred, but it may also result in further evidence that would cause the CPS to take a different view about prosecution; or it could result in recommendations or comments by the coroner aimed at the prevention of deaths of this sort.

The coroner himself, when asked whether he would be willing to indicate that he would be assisted by the deceased’s family being legally represented at the inquest, stated in a letter of 7 May 2003:

“I confirm that I would be assisted in the conduct of this Inquest if the family of the deceased is legally represented.”

At the forefront of their arguments concerning the need for legal representation has been article 2 of the Convention. The effect of article 2 has recently been summarised as follows by Lord Nicholls in In re McKerr [2004] UKHL 12, an important case to which further reference is made later in this judgment:

“19.

This article expressly imposes a positive obligation on the state to protect everyone’s life. The state must take appropriate steps to safeguard the lives of those within its bounds. But the state’s obligation does not stop there. The European Court of Human Rights has held that by implication article 2 also requires there should be some form of effective official investigation when individuals have been killed as a result of the use of force: see McCann v. United Kingdom (1996) 21 EHRR 97 (the ‘death on the Rock’ case), and McKerr v. United Kingdom (2002) 34 EHRR 20, para 111. The European Court of Human Rights has described this as a ‘procedural’ obligation imposed by article 2. The purpose of the investigation is to secure that domestic laws protecting the right to life are effectively implemented and, in cases involving state agencies, to ensure those responsible for deaths are made properly accountable: see Jordan v. United Kingdom (2003) 37 EHRR 2, para 105. The requisites of an investigation, if it is to fulfil this procedural obligation inherent in article 2, were considered recently by your Lordships’ House in R (Amin) v. Secretary of State for the Home Department [2003] UKHL 51, [2003] 3 WLR 1169.”

The claimants rely on the procedural obligation under article 2 to carry out an effective official investigation into the death of Michael Challender. They say that the relevant investigation in this case is the coroner's inquest and that they should be afforded publicly funded legal representation in order to ensure their effective participation and that the inquest is an effective investigation of the facts.

The claimants’ solicitors have had extensive contact with the LSC in an effort to secure public funding for such representation. Their application was initially refused by letter dated 30 December 2002. Following further representations the matter was reviewed by Mr Colin Stutt, Head of Funding Policy, who confirmed the refusal in a letter dated 24 January 2003. The refusal was maintained in subsequent correspondence, including a letter dated 12 May (after consideration of the coroner’s views as expressed in his letter of 7 May) which became the formal target of the judicial review challenge. Following the hearing before me, the matter was reviewed again, at my suggestion, in the light of all the considerations that had been put forward in the judicial review proceedings themselves. By letter dated 11 March 2004 the LSC confirmed that its position remained the same.

The LSC was established by s.1 of the Access to Justice Act 1999. It was required by s.4 of the Act to establish the Community Legal Service, and by s.5 to establish the Community Legal Service Fund from which it would fund services. Section 6(6) provides that the LSC “may not fund as part of the Community Legal Service any of the services specified in Schedule 2”. Paragraph 2 of Schedule 2 specifies “advocacy in any proceedings” except in certain courts and/or circumstances. Advocacy at an inquest is not one of the exceptions. Accordingly the funding of legal representation at an inquest falls outside the LSC’s normal powers.

Section 6(8) of the Act provides, however, 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.”

In deciding when to seek authorisation from the Lord Chancellor under s.6(8)(b), the LSC is required to take into account any guidance given to it by the Lord Chancellor under s.23 as to the manner in which he considers it should discharge its functions.

The Lord Chancellor has issued a direction authorising the LSC to fund advocacy services on behalf of the immediate family of the deceased at an inquest concerning a death occurring in police or prison custody or during the course of police arrest, search, pursuit or shooting.

The Lord Chancellor has also issued guidance on the types of cases falling outside the terms of the direction which he is likely to consider favourably under s.6(8) of the Act if a request is made to him by the LSC. The guidance states:

“Paragraph 2 of Schedule 2 excludes the provision of advocacy services before coroner’s courts and most tribunals. Coroner’s courts are excluded because the inquisitorial nature of the process means that public funding for legal representation is not usually appropriate.

…

[If the financial eligibility requirements are fulfilled] I would consider funding if either there was a significant wider public interest in the client being represented at the inquest or if the following conditions applied:

(i)

the client is a member of the deceased’s immediate family (but if there are other family members some of whom are not financially eligible it may be appropriate to refuse funding or restrict it to a proportion of the costs of representation) and

(ii)

the circumstances of the death appear to be such that funded representation is necessary to assist the Coroner to investigate the case effectively and establish the facts. For most inquests, the Coroner will be able to carry out an effective investigation without the need for funded representation, but such representation may well be needed for inquests concerning agencies of the state. Any representations by the Coroner on this issue will be taken into account, but there is no requirement to seek the Coroner’s views before making an application.”

In summary, the reasons for the LSC’s refusal of funding are that the case does not fall within the terms of the direction concerning deaths in custody etc.; and it does not justify a request for authorisation within the terms of the guidance, since (i) the case is not considered to come within the “significant wider public interest” criterion and (ii) it is not considered that “the circumstances of the death appear to be such that funded representation is necessary to assist the Coroner to investigate the case effectively and establish the facts”. The reasons given also involve a rejection of the claimants’ submission that the case falls within the ambit of article 2 of the Convention; but it is said that funding is not required even if the case does fall within article 2, since the absence of funded representation would not render the coroner’s investigation ineffective.

Thus the LSC’s letter of 24 January 2003 referred first to the Lord Chancellor’s guidance and to the LSC’s view that the case did not fall within the “significant wider public interest” criterion. On the remaining issue whether funding was necessary to assist the coroner to investigate the death effectively, the letter continued:

“As you may know, the latter test for funding arises from the need under ECHR Art.2 to ensure that certain deaths are effectively investigated by the state. The European Court of Human Rights has considered the nature of this procedural duty arising under Art.2, and it is clear from the decisions of that court, including the decision in the case of Jordan to which you refer, that the duty of the state to carry out an effective official investigation of a death arises whenever a state agent is or may be responsible for the death or whenever the death occurred as a result of the use of force.

I note here that responsibility for Mr Challender’s death does not appear to lie with the state. Nor does there appear to be any suggestion that the death arose from the use of force. Whilst I note your reference to an admission by a third party that he injected heroin into the deceased before he died. Even if that fact were true, it would not turn Mr Challender’s death into one that arose out of the use of force.

In the circumstances, it appears that this case does not fall within the ambit of the Art.2 duty to investigate and there is no obligation on the state in this case to fund the family’s representation at the inquest. In any event, quite apart from the fact that this case does not appear to invoke the procedural duty arising under Art.2, there is no absolute duty to fund representation for the family of the deceased at the inquest. Whether funding for representation ought to be granted will depend on the facts of each case.

As you know, your time in preparing for the inquest can be funded under Legal Help and this will ensure that your clients can participate in the inquest to an appropriate degree. It is only advocacy at the inquest that is an excluded service. Whilst I note that there will be a number of witnesses present at the inquest whom you would wish to cross examine on behalf of the family, I am not persuaded that the coroner him or herself will be unable to effectively examine those witnesses and establish the facts surrounding the deaths.

I realise that this will be disappointing news for your clients, however, on the basis of the above, I consider that even if Mr Challender’s death did trigger the positive obligation to investigate under Art.2, funding advocacy services for your clients would not be necessary to discharge any duty to investigate effectively ….”

Further detailed points were made, in particular in a letter from the LSC dated 25 April 2003 in response to representations about the test of “significant wider public interest” and the legal complexities of the case.

The main thrust of the submissions by Mr Manjit Gill QC on behalf of the claimants is that the LSC has erred in its view that the case falls outside the ambit of article 2, and in its understanding of what is required by way of an effective investigation if the case does fall within article 2, with the result that it has adopted an unduly restrictive interpretation of when funded representation is “necessary”, within the terms of the guidance, to assist the coroner to investigate the case effectively. There are subsidiary points under articles 6, 8 and 14 of the Convention.

A week after the substantive hearing in this case, the House of Lords handed down judgments in three other cases involving article 2 and coroners’ inquests: R v. HM Coroner for the Western District of Somerset, ex parte Middleton [2004] UKHL 10, R v. HM Coroner for the County of West Yorkshire, ex parte Sacker [2004] UKHL 11, and In re McKerr [2004] UKHL 12. Since they seemed potentially relevant and In re McKerr, in particular, appeared to raise an issue not previously canvassed before me as to whether article 2 could be relied on in respect of a death prior to 2 October 2000, further written submissions were made by each side pursuant to directions given by me.

In the light of all the submissions, oral and written, that I have received it seems to me that the logical order in which to consider matters is now as follows: (i) whether article 2 can be relied on at all, given the timing of the death (i.e. the temporal scope of article 2); if so, (ii) whether the case falls within the ambit of the duty under article 2 to carry out an effective investigation (i.e. the substantive scope of article 2); if so, (iii) whether the article 2 obligation to investigate requires the claimants to be given funding for legal representation at the coroner's inquest; and in any event (iv) whether reliance on articles 6, 8 and 14 assists the claimants.

The first question is whether article 2 of the Convention can be relied on at all in a case where the relevant death took place on 29 September 2000, a few days before the Human Rights Act 1998 came into force on 2 October 2000. Subject to arguments considered below, it is only through the medium of the 1998 Act, and in particular section 6, that the claimants can challenge the LSC's decision on grounds of error of law relating to the scope or effect of article 2.

In my judgment it is clear from McKerr that the claimants cannot rely on article 2 in this way. McKerr concerned a death in Northern Ireland in 1982. There had been a protracted history of investigations by the United Kingdom authorities: criminal proceedings, a subsequent police investigation and an inquest that was opened and then re-opened on a number of occasions but ultimately abandoned because the coroner considered that its purpose could not be achieved in the light of a public interest immunity certificate. On an application to the European Court of Human Rights it was found that article 2 of the Convention had been violated by the failure to hold an effective official investigation, and a sum was awarded by way of just satisfaction. Judicial review proceedings were then brought in the national court, alleging that the government's failure to provide an article 2 compliant investigation was in breach of section 6 of the 1998 Act and article 2 of the Convention, and seeking declaratory and mandatory relief and damages. The issue on which the House of Lords had to rule was whether it was open to the claimant to rely in this way on article 2 in the national court. Their Lordships held unanimously that it was not.

Lord Nicholls, having stated that it was now well settled, as a general proposition, that the Human Rights Act is not retrospective, went on to consider how this applied to the obligation under article 2 to hold an investigation into a death:

“22.

In my view the answer lies in appreciating that the obligation to hold an investigation is an obligation triggered by the occurrence of a violent death. The obligation to hold an investigation does not exist in the absence of such a death. The obligation is consequential upon the death. If the death itself is not within the reach of section 6, because it occurred before the Act came into force, it would be surprising if section 6 applied to an obligation consequential upon the death. Rather, one would expect to find that, for section 6 to apply, the death which is the subject of investigation must itself be a death to which section 6 applies. The event giving rise to the article 2 obligation to investigate must have occurred post-Act.

23.

I think this the preferable interpretation of section 6 in the context of article 2 ….”

Lord Steyn (para 50), Lord Hoffmann (paras 69-70), Lord Rodger (para 81) and Lord Brown (paras 90-92) gave opinions to the same effect. For example, Lord Brown stated:

“91.

The duty to investigate is, in short, necessarily linked to the death itself and cannot arise under domestic law save in respect of a death occurring at a time when Article 2 rights were enforceable under domestic law, i.e. on and after 2 October 2000.

92.

Such is the argument and to my mind it is irresistible ….”

In Middleton and Sacker the deaths also occurred before 2 October 2000. But in each case no question had been raised on the retrospective application of the Human Rights Act and the Convention, which were simply assumed to be applicable; and in each case it was made clear that by proceeding on that basis their Lordships did not intend to cast any doubt on the decision in McKerr (see Middleton at para 50 and Sacker at para 29).

Mr Gill submits that McKerr does not defeat the claimants’ arguments. He points out first that the issue in McKerr was whether some further investigation should be held into a death that had occurred in 1982 and in respect of which there had already been a coroner’s inquest, whereas the issue in the present case is whether, in the context of an acknowledged duty to carry out an inquest irrespective of the Human Rights Act, the LSC’s decision to refuse funding and its interpretation of the Lord Chancellor’s guidance violates the procedural obligation of article 2: the present case therefore concerns the link between an undisputed domestic law obligation to carry out an inquest and the need to make procedures at that inquest, which has yet to take place, article 2 compliant. In my view that is not a relevant point of distinction. The claimants’ case still depends upon the procedural obligation under article 2 having legal force in domestic law in relation to the investigation of a death that occurred before the Human Rights Act came into force; whereas McKerr holds decisively that the obligation exists in domestic law only in relation to deaths that occurred after the Act came into force. For this court to hold, in relation to a death that occurred before the Act came into force, that the LSC had violated article 2 by refusing funding, or had interpreted the guidance in a way that violated article 2, would be to give the procedural obligation under article 2 a legal force which the House of Lords has held it does not have. It makes no difference that the LSC’s funding powers and the coroner’s duty to investigate exist under domestic law independently of article 2, or that the funding decision itself is made and the inquest is carried out after the Human Rights Act came into force. The article 2 obligation to investigate cannot be invoked as a basis for challenging the funding decision where, because of the timing of the death, the article 2 obligation simply does not arise under domestic law.

Mr Gill submits, as I understand it, that article 2 can still be relied upon because there is an issue concerning the interpretation of the Lord Chancellor's guidance. Neither the guidance itself nor the LSC’s interpretation of it draws any distinction between deaths before the Human Rights Act came into force and deaths after it came into force. He submits that those matters serve to distinguish the case from McKerr where, it is noted, Lord Nicholls said in paragraph 30 that the claimant was not asking the House “to interpret the statutory provisions relating to coroners in a way which would make them compliant with the investigative requirements of article 2”.

There has been no argument before me as to the effect of s.3 of the Human Rights Act (to which only the briefest of references was made in Mr Gill's final written submissions). I am inclined to the view that, even if the guidance comes within the definition of "subordinate legislation" in s.21, so that under s.3 it must be read and given effect, so far as possible, in such a way as to be compatible with the Convention, it is no more open to the claimants to rely on s.3 than to rely on s.6 in relation to a death that occurred before the Act came into force, since in each case the result sought cannot be achieved unless, in relation to that death, article 2 has legal force in domestic law. This might give rise to an unsatisfactory state of affairs if the guidance had to be interpreted differently according to when the death took place. In truth, however, I do not think that that is a problem in this case. Although the claimants' case is presented in part in terms of an erroneous interpretation of the guidance, it is in substance a case about the application of the guidance rather than the meaning of the guidance. At the heart of the case is the LSC's approach towards the condition that "the circumstances of the death appear to be such that funded representation is necessary to assist the Coroner to investigate the case effectively and establish the facts". But, as explained later in this judgment, the claimants do not contend that article 2 requires the condition to be given a different meaning from that given to it by the LSC. What they are really contending is that the LSC adopted an unduly restrictive approach in the application of the condition to the circumstances of the present case. I therefore view this as a s.6 case rather than a s.3 case. As already indicated, however, I would reach the same conclusion concerning the temporal scope of article 2 even if it were viewed in part as a s.3 case.

Mr Gill advances a separate argument that because the LSC has itself stated that its interpretation of the guidance and its funding decision were in accordance with the Convention, the position can be tested by reference to the Convention irrespective of the question of its incorporation in domestic law: see R v. Secretary of State for the Home Department, ex parte Launder [1997] 1 WLR 839, 867, where for particular reasons the House of Lords was prepared to consider an argument that the Secretary of State had misdirected himself on the Convention which he himself said he had taken into account. It is true that the LSC proceeded on the basis that the relevant test in the guidance arose out of the investigative obligation under article 2 and set out reasons why the case was not considered to fall within the ambit of article 2 and was in any event not one where funding would be required if the case did fall within the ambit of article. A problem with Mr Gill’s submission, however, is that it is not enough for the claimants to show here that the LSC misdirected itself with regard to article 2. The whole case is directed towards the securing of funding for legal representation at the inquest. In order to obtain the favourable decision from the LSC which they seek – indeed, in order to obtain the mandatory order they seek - they have to show that article 2 requires funding to be provided. They cannot do that without relying on the article 2 obligation to investigate as having legal force under domestic law.

The conclusion I therefore reach is that the date of Michael Challender's death is sufficient to defeat the claimants' case under article 2. Nevertheless, since they were argued fully at the hearing before me, I think it right to deal in the alternative with the other issues raised under that article.

The claimants contend that the LSC erred in the view expressed in the letter of 24 January 2003 that the obligation to carry out an effective investigation under article 2 only arises "whenever a state agent is or may be responsible for the death or whenever the death occurred as a result of the use of force" and that the present case falls outside the scope of the obligation.

The scope of article 2 has been examined recently by the House of Lords in R (Amin) v. Secretary of State for the Home Department [2003] 3 WLR 1169. Since the relevant Strasbourg authorities are referred to in the judgments in Amin, it is unnecessary to refer to more than a handful of them. An oft repeated statement of principle is to be found in McCann v. United Kingdom (1995) 21 EHRR 97, at para 161:

“The obligation to protect the right to life under [article 2(1)], read in conjunction with the State's general duty under article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms defined in [the] Convention', requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State.”

Although the principle was first expressed in relation to deaths resulting from the use of force by agents of the state, it has been extended to cover deaths in custody or in hospital, on the basis that a negligent failure to protect those in its care can equally engage the responsibility of the state. Domestic law examples are Amin (death in custody) and R (Khan) v. Secretary of State for Health [2003] EWCA Civ 1129 (death in NHS hospital).

In Amin Lord Bingham described the development of the principle. He said that the primary purposes of article 2 are well described in Osman v. United Kingdom (1998) 29 EHRR 245, at para 115:

“The Court notes that the first sentence of article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of another individual.”

Lord Bingham went on to summarise the cases in which the additional investigative obligation was articulated. One such case was Edwards v. United Kingdom (2002) 35 EHRR 487, a case of death in custody upon which the House of Lords placed substantial reliance in Amin. In Edwards the Strasbourg Court, in a clear reflection of McCann, described the additional obligation in these terms:

“69.

The obligation to protect the right to life under article 2 of the Convention, read in conjunction with the State's general duty under article 1 of the Convention to 'secure to everyone within [its] jurisdiction the rights and freedoms defined in [the] Convention, also requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility ….”

Menson v. United Kingdom (application no. 47916/99, decision of 6 May 2003) concerned a racist attack on a victim who was set on fire and killed in the street by assailants who were not agents of the state. In its decision on admissibility the Strasbourg Court noted that the case was to be distinguished from cases involving use of lethal force either by agents of the state or by private parties with their collusion, or in which the factual circumstances imposed an obligation on the authorities to protect an individual's life, for example where they have assumed responsibility for his welfare. The decision continued:

“However, the absence of any direct State responsibility for the death of Michael Menson does not exclude the applicability of Article 2. It recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction …, [Article 2(1)] imposes a duty on that State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman … para 115).

With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in Michael Menson's case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see [Edwards] para 69).

…

Although there was no State involvement in the death of Michael Menson, the Court considers that the above-mentioned basic procedural requirements apply with equal force to the conduct of an investigation into a life-threatening attack on an individual regardless of whether or not death results …” (pages 12-13).

On the facts of Menson the court held that there was no breach of the state's investigative obligation and that the application should be rejected as manifestly ill-founded.

In Finucane v. United Kingdom (application no. 29178/95, decision of 1 July 2003) the Strasbourg Court held that there had been a breach of the article 2 obligation to investigate in a case where the death occurred in circumstances giving rise to suspicions of collusion between his killers and the security forces. The statement of general principles concerning the duty under article 2 included this:

“67.

The obligation … requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force …. The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility.”

Although both counsel have referred in their further written submissions to passages in the speeches of their Lordships in McKerr, Middleton and Sacker as bearing on the substantive scope of article 2, the issue now before the court was not under consideration in any of those cases and I do not consider that they take the matter forward to any material extent.

In the light of the various statements of principle in the Strasbourg case-law, Mr Gill contends that the article 2 obligation to investigate extends at least to all cases where a death has occurred in circumstances that may have been unlawful or that may give rise to an obligation on the state to put in place systems which are protective of the right to life. He submits that there is no basis for saying that a death otherwise than in custody etc. must be accompanied by the use of force before it can engage the investigative obligation under article 2. Such an approach would severely limit the ambit of article 2 and the state's obligation to investigate cases of, for example, death by neglect, euthanasia, or cases where vulnerable individuals had willingly gone along under peer pressure with unlawful acts which had fatal consequences. The LSC, it is submitted, is adopting an unduly rigid approach.

Mr Gill seeks to derive support for those submissions not just from the Strasbourg case-law but also from certain observations made by their Lordships in Amin, the high-point from his point of view being a passage in the speech of Lord Hope:

“Some form of effective investigation is, of course, needed where prisoners have been killed as a result of force by, inter alios, agents of the state: McCann …para 161. But, as the words 'inter alios' indicate, the obligation to safeguard the lives of prisoners is not confined to those who are at risk of the acts of state agents. It extends with equal force to all those whose lives are at risk from the criminal acts of another individual: Osman … para 115” (emphasis added).

Miss Collier submits that none of the speeches in Amin is authority for the proposition contended for by the claimants, and that in any event their Lordships were not called upon to consider the question and any observations relating to it were obiter and not fully considered. In her submission, the Strasbourg case-law does not warrant the extension of the article 2 obligation to investigate to cases where there is no state involvement (whether deliberate or by way of neglect) and no use of force. Indeed, the LSC does not accept that the article 2 obligation necessarily does arise simply by reason of the fact that the death resulted from the use of force, if there was no state involvement at all: Menson, the only case dealing with such a situation, was a decision on admissibility which did not go to a full hearing.

An alternative submission made by Mr Gill, and resisted by Miss Collier, is that if the article 2 investigative obligation does not extend beyond cases where death resulted from the use of force, the present case is nevertheless to be regarded as involving the use of force and therefore as falling within the scope of the obligation.

As to that last point, if one had to construe references to "the use of force" as if they laid down a precise test for when the article 2 investigative obligation was engaged, in my judgment the injection of heroin into a willing participant could not sensibly be characterised as the use of force. The statements of principle referring to the use of force were formulated in the context of, or were referring to, acts of violence. What is alleged in this case is not an act of that kind, even if it is an unlawful act which can found a charge of manslaughter where death ensues.

In my view, however, it is unhelpful and inappropriate to go down the route of determining whether the facts of a particular case amount to "the use of force". That is too narrow an approach when dealing with the application of the Convention. In McKerr Lord Nicholls, citing Jordan v. United Kingdom (2003) 37 EHRR 2, stated that the purpose of the investigation required by article 2 is "to secure that domestic laws protecting the right to life are effectively implemented and, in cases involving state agencies, to ensure those responsible for deaths are made properly accountable" (see para 19, quoted above). The same point is made, for example, in the judgment of the Strasbourg Court in Edwards, where it is stated that "the essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving State agents or bodies, to ensure their accountability for deaths occurring under their responsibility" (see para 69, quoted above). The point about effective implementation of domestic laws protecting the right to life is a direct reflection of what was said in para 115 of Osman, even though Osman was looking not at the specific question of investigations but at the general obligation to put in place and operate effective provisions of criminal law to deter the commission of offences against the person. The obligation to carry out an effective investigation is not a wholly separate issue but a facet of the same basic principle. This is how the matter was approached in Menson, where the court referred to the general obligation expressed in para 115 of Osman before stating that on the facts of the particular case "this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life-threatening injuries in suspicious circumstances". Although Menson was only a decision on admissibility, I think that weight can properly be attached to its reasoning. It also accords with what was said in Amin by Lord Hope, who also referred to the general obligation expressed in para 115 of Osman when expressing in broad terms the scope of the article 2 investigative obligation (though I accept that his observation was obiter and that the present issue was not one to which their Lordships were giving specific consideration in that case).

The reasoning to which I have referred applies even where the state is not directly involved in the death (whether through the acts of agents of the state or because the deceased was in the care of the state). The involvement of the state in the death gives rise to additional reasons why an effective investigation is needed, but the state's obligation to ensure the effective implementation of domestic laws protecting the right to life can be a sufficient basis for the need to carry out an effective investigation even in cases with no state involvement in the death.

On the basis of the above I would reject the LSC's contention that the article 2 investigative obligation is limited at most to cases of state involvement or the use of force. In my view the principles articulated in the case-law support a broader approach. In the present case there is some evidence to suggest, and the deceased's family have alleged, that Michael Challender's death occurred in circumstances that amounted to unlawful killing. That seems to me to bring the case within the broad scope of the court's reasoning in Menson and of Lord Hope's observation in Amin, and to be capable of engaging the article 2 investigative obligation. That is enough for present purposes, without attempting to formulate any precise definition of the circumstances in which the article 2 investigative obligation arises.

What I say on this issue is necessarily obiter in the light of my conclusion on the temporal scope of article 2. I have indicated enough to show why I think it appropriate to go on to consider the next issue (albeit that my conclusion on that will also be obiter), namely what is required by way of an effective investigation, if the article 2 obligation to carry out an effective investigation does apply, and in particular whether the claimants need legal representation at the inquest in order to meet the requirement of an effective investigation.

The LSC has made clear that its primary submission in the case is that even if article 2 applies, the duty to carry out an effective investigation does not require that the claimants be legally represented at the inquest or, therefore, that they receive public funding for that purpose, because the coroner's investigation will in any event be effective. The claimants accept that in most cases the coroner will not need assistance by way of legal representation for the family of the deceased in order to conduct an effective investigation, but they submit that in the particular circumstances of the present case such assistance is needed and that the LSC erred in reaching the contrary view.

It is clear from the case-law that the form of investigation required to meet the obligation under article 2 depends on the circumstances. The essential requirements were expressed as follows in Edwards, though the context was of course a death in custody and arising out of the use of force:

“69.

… What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of the investigative procedures.

…

71.

The investigation must also be effective in the sense that it is capable of leading to a determination of whether the force used in such cases was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.

…

73.

For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the next-of-kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.”

It is to be noted that in Menson, where the relevant requirements were stated in similar terms, the court held that the requirements were satisfied in circumstances where there had been a police investigation leading to the identification, arrest and conviction of the culprits, and a public inquest in which a jury returned a verdict of unlawful killing.

In R (Khan) v. Secretary of State for Health, upon which Mr Gill places heavy reliance, it was held that in the particular circumstances the article 2 investigative obligation required funding to be provided for the deceased's family to be legally represented at the inquest or at an equivalent investigation. The case involved the death of a young girl in an NHS hospital in circumstances giving rise to allegations of gross negligence and of a possible cover-up by the hospital Trust. There was an extensive police investigation, following which the CPS decided that no criminal proceedings would be taken. A coroner's inquest was then opened, but adjourned while efforts were made to obtain legal funding for the deceased's family. The parents of the dead girl had been very badly affected by events:

“24.

Two and a half years had now elapsed since Naazish's death. By this time Mr Khan and his wife had withdrawn into themselves. Mrs Khan had effectively become a hermit, and Mr Khan was suffering from what was later diagnosed as a psychiatric illness. He did not open letters, and he allowed county court judgments to be entered against him by default as a consequence. He felt unable to deal with people. The junior post he now held with his firm did not involve this necessity, and his solicitor sometimes experienced difficulty and delay in obtaining instructions ….”

The court stressed the importance of involving the deceased's family in the investigation of what had gone wrong (paras 40-43). It held inter alia that what is required by way of an investigation under article 2 cannot be reduced to a catechism of rules and that a flexible approach is needed, responsive to the dictates of the facts, case by case (para 67). It took the view that the state's obligation under article 2 had not already been performed, stating:

“69.

… [U]nder our law it is the coroner's inquest, when it takes place, which furnishes the natural occasion for the effective judicial inquiry into the cause of a death that the Convention requires. The police investigation, in which the family played no part, and which culminated in a decision not to prosecute, could not act as a substitute ….”

It went on to find that the holding of an inquest could not fulfil the article 2 obligation if Mr Khan was unable to play an effective part in it:

“74.

If the public judicial investigation required by Article 2 is to be an effective one … the inquest will not be an effective one unless Naazish's family can play an effective part in it. The evidence shows … that they are in no fit state to play that part themselves. 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 ….

75.

In particular, the evidence is so complex that the coroner has enlisted the services of an independent medical expert to assist him. The Trust and its doctors and nurses will have the benefit of legal representation at public expense, and the family are likely to wish to explore the prospects of a verdict of neglect and/or a report by the coroner pursuant to Rule 43 of the Coroners' Rules. Mr Khan clearly could not manage this on his own.”

The court held that the state was required in those circumstances either to provide reasonable funding in order to ensure that the Khan family was represented at the inquest or, if the Secretary of State lacked the power to provide such funding, to set up some other type of inquiry at which funding would be available (para 87).

At the hearing Mr Gill appeared to accept that cases where funding would be required would be exceptional, as indicated in Khan, but he submitted that the claimants' case is another such exceptional case. In his subsequent written observations, however, he has suggested that Khan was decided in the context of the narrow approach of the Court of Appeal in Amin and that the subsequent decisions of the House of Lords in Amin itself and, more recently, in Middleton and Sacker show that the coronial system is complex and antiquated and needs to be brought up to date, that an inquest should be able to adopt a more broad-ranging approach than was previously thought and, more importantly, that the procedure is "not purely inquisitorial or purely adversarial" (Middleton, para 26). He submits that all this suggests that there is perhaps a broader range of cases than was assumed in Khan which will give rise to the need for representation at an inquest.

Against that background Mr Gill submits that effective participation by the family and effective investigation by the coroner in the present case require that the claimants are legally represented, in view of the factual and legal complexity of the issues that the coroner will be required to explore. There are factual issues relating to the possible participation of a third party in the injection of heroin into the deceased: who did what within the group, and what state was the deceased in at the time? There is a material disagreement between medical experts on the issue of injection of heroin. All this needs skilful cross-examination of witnesses. Submissions will also be required on the legal consequences of the facts found. The criminal liability of a person participating in the injection of heroin into another is itself a matter of legal complexity: see R v. Dias [2002] 2 Cr App R 96 and R v. Rogers [2003] 1 WLR 1374, together with the commentary on Rogers at [2003] Crim LR 556-557. There is, submits Mr Gill, no way in which the claimants can be expected to represent themselves in dealing with such matters.

Mr Gill further submits that the relevant test is whether there is a risk that the ability of the coroner to achieve an effective investigation will be undermined if the family lacks legal representation. He points to what was said in paragraph 71 of the judgment in Edwards (also in Menson) that "[a]ny deficiency in the investigation which undermines its ability to establish the cause of death or the persons responsible will risk falling foul of this standard"; and he submits that compliance with article 2 requires such a risk to be avoided. In his witness statement for the LSC, Mr Stutt states in terms that the LSC interpreted the relevant condition in the Lord Chancellor's guidance ("the circumstances of the death appear to be such that funded representation is necessary to assist the Coroner to investigate the case effectively and establish the facts") as meaning that without representation it might not be possible to have an effective investigation. Mr Gill does not accept that even this would be enough to satisfy the "no risk" test. But in any event he submits that it is not the approach adopted by the LSC at the time of its decision. In the LSC's letter of 24 January 2003 Mr Stutt stated: "I am not persuaded that the coroner … will be unable to effectively examine those witnesses and establish the facts surrounding the deaths". To say that it has not been shown that the coroner will be unable to carry out an effective investigation is very far from saying that there is no risk of his being unable to do so.

Mr Gill raises what he describes as related errors by the LSC in relation to three matters arising out of the correspondence at the time of the decision: whether the inquest will touch on issues of criminal responsibility; the relevance of the LSC's view that the law as to criminal liability in this area was clear; and the relevance of the coroner's letter that he would be assisted by legal representation of the family at the inquest. In relation to the first he makes the point that, whilst the issues at an inquest are different from those at a criminal trial and the coroner cannot name the person(s) responsible for the death, the inquest will inevitably involve questions concerning the responsibility of the individuals against whom the CPS considered prosecution and may lead to a reconsideration by the CPS, as well as informing the family of the person(s) likely to be responsible. In relation to the second matter Mr Gill, as already indicated, takes issue with the view that the law in this area is clear. In relation to the third matter, he submits that, reading between the lines, the coroner's letter is to be taken as indicating a view that the coroner needs assistance at the inquest.

For the LSC, Miss Collier raises the preliminary question whether, if this case comes within the scope of the article 2 investigative obligation, the criminal investigation was nevertheless sufficient to meet that obligation and no coroner's inquest is required at all for that purpose. She refers to the statements in the case-law that what form of investigation will achieve the requisite purposes may vary in different circumstances. She suggests that what was done by the police and CPS in this case did amount to an effective investigation. I note what was said by the Court of Appeal in Khan about the status of the coroner's inquest for article 2 purposes and that a police investigation in which the family played no part and which culminated in a decision not to prosecute could not act as a substitute for a coroner's inquest. In this case the family was involved to some extent in the earlier consideration of the case (though there is some dispute about the extent of that involvement), but I doubt whether that was sufficient to meet the article 2 requirement. In any event the LSC's consideration of the case proceeded on the assumption that the inquest was going to be the relevant investigation for article 2 purposes, and in my view it is better for me to proceed on the same basis when I consider this aspect of the case. Whether and in what circumstances a police investigation will suffice can be left open.

Miss Collier submits that, despite its view that article 2 did not apply, the LSC clearly considered the question of effective investigation on the basis that it did apply. What Mr Stutt says in his witness statement about the approach adopted, i.e. asking whether without representation it might not be possible to hold an effective investigation, should be accepted: there is no inconsistency with what was said in correspondence, and the correspondence and witness statement should be read together to determine the full reasoning process.

It is submitted that factual and medical complexity are not uncommon at inquests and that there is nothing about the circumstances of this case to place it in an exceptional category. The issues here are such that the coroner will be able to ask the relevant questions and engage in sufficient exploration of the facts without assistance from legal representatives on behalf of the family. The relevant question is whether another person injected heroin into the deceased and whether that gave rise to an unlawful killing. That is not a legally difficult question. It is established that the administering of an injection of heroin to another is unlawful. In Dias the court endorsed the Crown's approach that the supply of heroin is unlawful and can be a dangerous act causing death, and stated that "[t]he most obvious case is where the supply takes the form of one person injecting the other who dies"; see also Archbold, para 19-100. The position is more complicated when the deceased injects himself but another person actively participates in the act; but that is not this case, and in any event the basic position in relation to that is as set out in Dias and Rogers.

Miss Collier submits that one cannot read between the lines of the coroner's letter in the way suggested by the claimants. If the coroner had thought that legal representation for the family was necessary, he would have said so. There have been cases where coroners have expressed such a view. On the other hand it is common for coroners to say that they would be "assisted" by legal representation; and if that were sufficient to call for funding, it would be necessary to fund representation at thousands of inquests.

My conclusions on this issue are as follows. First, I am satisfied that the LSC did consider the question of effective investigation on the basis that article 2 applied and that its consideration was not in some way vitiated by an assumption that article 2 did not apply. It is clear from the correspondence that the matter was approached in this way. I also accept that the test applied was whether, in the absence of legal representation for the family, it might not be possible to have an effective representation. Although the court exercises appropriate caution in relation to later evidence about the reasoning process behind an impugned decision, Mr Stutt's witness statement does no more than supplement or cast light on, rather than contradict, what was said at the time of the decision, and I see no reason to reject it. In any event the matter has been reconsidered by the LSC since the hearing and the decision has been affirmed, no doubt on the basis of the approach set out in the witness statement. As to that approach, I see no material difference between asking whether it might not be possible to have an effective investigation without legal representation for the family and asking whether there is a real risk that the ability of the coroner to hold an effective investigation would be undermined without such representation.

I therefore take the view that there was no error in the LSC's legal approach. Further, the conclusion reached was in my view reasonable and in compliance with the requirements of article 2. This is not a case of exceptional factual or legal complexity. The CPS’s letter of 25 June 2002 sets out very clearly why it was considered that no unlawful act could be proved. It is within the competence of the coroner to consider those matters and to carry out the necessary investigation without assistance from legal representatives for the family. The factual issues relevant to whether a third party injected heroin into the deceased fall within a limited compass. The difference in expert medical opinion is on a relatively narrow point. The legal position is reasonably clear: the areas of potential complexity explored in the Criminal Law Review commentary on Rogers, relating to the limits of "active participation" in a case where the deceased self-injects, and to possible defences, do not appear to arise on the facts but are capable in any event of being dealt with by the coroner without legal representation. An important additional consideration is that the claimants will be able to obtain advice and assistance under the Legal Help scheme, which will cover the making of written submissions to the coroner, and will be able to attend the inquest themselves. All that they will be denied through lack of funding will be legal representation in the form of advocacy at the inquest. It does not seem to me that the circumstances are such as to place this case into the exceptional category where legal representation is needed in order to ensure effective participation by the deceased's family and an effective investigation.

The views expressed by the coroner are material though not determinative. It is significant that he does not express the view that legal representation is necessary. I reject the claimants' contention that, reading between the lines, the coroner should be understood as expressing such a view. I note that the language he used was the language he was invited by the claimants' solicitors to use; but in my view, had he thought that legal representation was necessary, he would have said so.

The present case is distinguishable from Khan in a number of ways. The medical and factual issues are not as complex. There is no additional dimension of an alleged cover-up. The claimants do not suffer from the personal problems or disabilities of the claimants in Khan and there is no suggestion that they will be unable to participate personally in the inquest. It was known that other interested parties were going to be legally represented at the inquest in Khan. In any event the question whether legal representation is needed in order to ensure effective participation in the inquest and an effective investigation is highly fact-sensitive, and the decision reached on one set of facts in Khan cannot determine the outcome on a different set of facts in the present case.

I see nothing in the cases post-dating Khan to support a broader approach than that expressed in Khan itself when it was said that in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself and that only in exceptional cases will article 2 require legal representation for the family of the deceased.

To the extent that I have not specifically covered the points made in Mr Gill's submissions, it suffices to say that I do not think that any of them is of sufficient substance to affect my conclusion or to call for the giving of further reasons in support of that conclusion.

Accordingly, if it were open to the claimants to rely on article 2 in relation to a death prior to 2 October 2000, I would uphold the LSC's primary submission that the decision to withhold funding in this case was in compliance with the substantive requirements of article 2.

At the hearing Mr Gill did not press the case under other provisions of the Convention, accepting that the outcome depended in reality on article 2. The problem subsequently identified concerning the temporal scope of article 2 caused him to place greater weight on other Convention provisions in his subsequent written submissions. Nevertheless they can in my view be dealt with very briefly.

It is submitted that the refusal of funding is a breach of article 6 of the Convention. The inquest is said to involve a determination of the claimants' "civil rights" because they have rights under article 2 and other articles; the outcome of the inquest may be directly or indirectly decisive for their civil rights to sue those responsible for Michael Challender's death; and the proceedings may have an effect on the reputation of the claimants and the deceased. I reject the contention that the inquest will be determinative of any civil rights of the claimants. In any event, for the reasons already given under article 2, legal representation is not necessary for effective participation by the claimants in the inquest. The article 6 claim is therefore misconceived and adds nothing.

Although reliance is also placed on article 8, I simply do not understand how the conduct of the inquest could possibly give rise to a breach of the claimants' rights under article 8; and however the case is put, I take the view that my findings under article 2 must in reality be determinative against the claimants.

A case is advanced under article 14 on the basis that the LSC has drawn impermissible distinctions in the way in which it protects article 2 rights as between different classes of person (e.g. on the one hand, families of deceased persons who are killed by State agents or by the use of force and, on the other hand, families of those who do not possess that status or characteristic). In my view the distinction on which the claimants rely is not one of status within article 14; but in any event the article 14 argument is doomed to failure in the light of my findings that the LSC did consider the case on the assumption that article 2 applies and reached the lawful view that article 2 did not require funding.

For the reasons given, the LSC's decision not to seek authorisation from the Lord Chancellor for the funding of legal representation for the claimants at the inquest of Michael Challender was in my judgment lawful and the claim for judicial review must be dismissed.