Maguire, Detention, and Article 2 Inquests

Maguire [2023] UKSC 20 is the most recent, and highest, authority on the engagement of Article 2 ECHR in inquests. The Supreme Court’s judgment ties together the Maguire and Morahan authorities (both of which had previously reached the Court of Appeal). It runs to 77 pages, with a leading judgment from Lord Sales, and a concurrence from Lord Stephens. 

The judgment has been credited with a comprehensive review of the case-law and a reaffirmation of the high threshold for engagement of Article 2 in healthcare settings. The focus here is on what lies between the judgment’s lines and the implications for practice. 

A full account of facts would exhaust a blog post. In short: Jackie Maguire died while living in a care home subject to Deprivation of Liberty Safeguards (DoLS). At the end of a Middleton-type inquest into her death, the Coroner declined to leave a narrative conclusion to the jury, who concluded that her death was one by “natural causes”. 

Ms Maguire’s family unsuccessfully challenged the Coroner’s decision in the High Court, Court of Appeal, and now the Supreme Court. The courts confirmed that, by the end of the inquest, there was no “automatic” engagement of the enhanced procedural obligation; and there was no arguable breach of any substantive Article 2 right. A Jamieson-type inquest conclusion was therefore deemed sufficient.

A “Continuum” of Detention?

The Supreme Court’s analysis of the case law was lengthy but, in some respects, raised rather than answered questions. 

The Supreme Court asserted that while Jackie Maguire was deprived of her liberty, this had to be understood on a “continuum” of interferences with the right to liberty (§148(4)). The Court of Appeal had already concluded that Ms Maguire’s situation was different to someone in prison or in mental health detention (§102). The Supreme Court held that the better analogy for her was where the state had authorised loss of liberty in a family home (§148(4)).

However, neither the Court of Appeal nor the Supreme Court explained what defines any continuum of detention that may exist. The Supreme Court, in the relevant paragraph, referred to the purpose of Jackie Maguire’s detention as being for her own benefit or to keep her safe. That, though, does not assist.

Purpose of detention does not suggest a continuum but rather different categories: with prisoners (punishment and/or protection of others), mental health detainees (protection of self/others), police detainees (crime investigation and prevention), and those subject to DoLS (protection of self) all being different.

If the continuum were based on purpose then involuntary psychiatric patients might be thought to be closer on the continuum to care home detainees than they are prisoners. However, neither the Court of Appeal nor Supreme Court judgments support that conclusion.

It may be that each category of detainee must be understood differently. There may be no continuum, as such, or at least not if its rationale is said to be the purpose of detention.

Suspicion of the State as Rationale

In contrast, the rationale for the enhanced procedural obligation is clear. It arises where there is a “particularly compelling reason” for the state to account for the death (§15) because of potential “state responsibility” for it (§17).

In the paradigmatic case, because of the control the state has over prisoners, a violent or unnatural death in prison of itself raises sufficient suspicion to trigger the enhanced procedural obligation. It is “automatic” in those cases.

If a case is not an “automatic” one there must be an arguable breach of Article 2 to raise the suspicion that triggers the enhanced procedural obligation. 

Suspicion of state responsibility does not necessarily flow from the purpose of detention. The automatic suspicion in prison cases arises because of the long, sad, history of ill-treatment of prisoners across the Council of Europe.

But similar policy considerations could arise in respect of detainees in care homes or other settings. For context: there was an estimate of 541,535 concerns of abuse of vulnerable adults in 2021/2022 (in various settings). This was an increase of 9% on the previous year and follows an average increase of 8% annually since 2016/2017.

Moreover, many vulnerable adults and children have less legal capacity and less actual agency to protect themselves than some prisoners do. If such a person dies an unnatural or suspicious death, it’s not clear fromMaguire what rationale there might be to investigate that death to a lesser degree, than a similar death in prison.

The Stage of Inquiry

This brings me to the final, somewhat overlooked, feature of Maguire. The decision under review was whether it was correct to refuse to leave the jury a narrative conclusion. The inquest itself had been conducted as a Middleton-type inquest. It was only at the end that the enhanced procedural obligation was disengaged.

This could be understood as analogous to the “funnel” approach to fact-finding whereby the Coroner’s inquiry starts in broad terms but narrows as it reaches its conclusion. 

In terms of the enhanced procedural obligation, there may be:

• an automatic engagement at the outset of an inquest, because the deceased was in detention, and their death appears unnatural or otherwise suspicious (which, in Coronial law, is very broadly defined). As the inquest reaches its conclusion, the suspicion might have been allayed, and with it, the basis for the automatic engagement of the enhanced procedural obligation; or
• an arguable breach of at least one of the substantive Article 2 rights at the beginning of the process, sufficient to engage the enhanced procedural obligation, but at the conclusion of fact-finding that arguability may have fallen away. 

So, Maguire may reinforce the challenge of engagement of Article 2 in healthcare cases, but it does so most forcefully in relation to the end of the process. At the start of the inquiry, there may be suspicion to allay in respect of a detainee, or arguable breaches to explore (regardless of detention).

Implications for Inquest Practice

Put broadly, the engagement of the enhanced procedural obligation has three consequences: (i) the availability of public funding for the family; (ii) potentially a broader scope of inquiry; (iii) the availability of a judgmental conclusion.

Recent case-law, however, has eroded the distinction between Jamieson and Middleton inquests in respect of the second and third points: 

• There need not be any difference in scope between a Jamieson and Middleton inquest and, if there is potential for Article 2 to become engaged, Coroners would do well to define scope to capture “in what circumstances” the death occurred: Boyce [2022] EWHC 107 (Admin), §72; Patton [2022] EWHC 1377 (Admin), §81; Morahan [2022] EWCA Civ 1410, §8.
  
  
• Moreover, in Dove [2023] EWCA Civ 289, the Court of Appeal concluded that even where Article 2 is not engaged, it may still be possible to include in the record of inquest that, for example, “the deceased took her own life as a result of a deterioration in her mental state exacerbated by the abrupt cessation of her ESA on 7 February 2017 by the Department” (I have previously discussed the potential for use of judgmental language here).

The key impact that the engagement of the enhanced procedural obligation has at the outset of the inquest remains that it provides a basis for families to secure public funding. That does not drive Coronial decision-making. But if Maguire is being relied upon to resist the engagement of Article 2, families would do well to remind Coroners that that decision was made at the end, not the beginning, of the investigation.