AC-2024-LON-003241 - [2025] EWHC 3014 (Admin)

Fecha: 17-Nov-2025

Did the Coroner inappropriately gloss the test for an Article 2 operational breach?

Did the Coroner inappropriately gloss the test for an Article 2 operational breach?

81.

The second complaint is that in the Ruling, the Coroner had mischaracterised the test for a substantive Article 2 breach when she stated that “in matters involving criminal acts of someone who is not a state agent the level of risk to cross the real and immediate threshold is very high”. As to this:

I accept that in Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [30], Lord Bingham stated “I would for my part accept that a court should not lightly find that a public authority has violated one of an individual's fundamental rights or freedoms .. But I see force in the submission … that the test formulated by the Strasbourg court in Osman … is clear and calls for no judicial exegesis.”

ii)

However, the “real and immediate” risk threshold has frequently been recognised as “high” or “very high”: see e.g. Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [36]; Van Colle v Chief Constable of Hertfordshire[2008] UKHL 50, [30], [69], [115]; R (AP) v HM Coroner for Worcestershire [2011] EWHC 1453 (Admin), [79]; R (Kent County Council)v HM Coroner for the County of Kent [2012] EWHC 2768 (Admin), [43]; G4S Care and Justice Services Ltd v Kent County Council [2019] EWHC 1648 (QB), [74]; R (Ferguson) v HM Assistance Coroner for Sefton, Knowsley and St Helens [2025] EWHC 1901 (Admin), [24]; and Chief Constable of Sussex Police v XGY [2025] EWCA Civ 1230, [83].

iii)

More fundamentally, however, the Coroner was persuaded that a risk at the requisite level did exist. However, applying Galbraith, she found that there was “insufficient evidence on which a jury could properly find that it was a risk of which any police officer was or should have been aware.”

iv)

For those reasons, this point is not arguable and goes nowhere.