David Ferguson, R (on the application of) v HM Assistant Coroner for Sefton, Knowsley and St Helens [2025] EWHC 1901 (Admin)

[2025] EWHC 1901 (Admin)Case No AC-2025-MAN-000030
IN THE HIGH COURT OF JUSTICE
KING’S BENCH DIVISION
ADMINISTRATIVE COURT
Venue SITTING IN MANCHESTER, Manchester Civil Justice Centre, 1 Bridge Street West Manchester M60 9DJDate 23/07/2025
Before
MRS JUSTICE HILL DBE
Between
R (on the application ofClaimantDAVID FERGUSON)Claimant
George Murray (instructed by Satchell Moran Solicitors) for ClaimantLouis Browne KC (instructed by Sefton MBC Legal Services Department) for DefendantLujzka Halsall-Fischel (instructed by Legal Services Department – Merseyside Police) for First Interested Party for The Second Interested Party did not appear and was not representedHearing Hearing date: 17 July 2025
Approved JudgmentThis judgment was handed down remotely at 2.30pm on 23 July 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MRS JUSTICE HILL

Introduction

[1]The Claimant is the brother and next of kin of James Joseph Farley who died on 11 April 2023, at the age of 26, when he jumped from the fourteenth floor of a car park in Bootle, Merseyside. The Defendant (“the Coroner”) is the coroner conducting the investigation into Mr Farley’s death.[2]By this claim, filed on 24 January 2025, the Claimant seeks judicial review of the Coroner’s 26 October 2024 decisions to the effect that(i) the enhanced investigative duty under Article 2 of the European Convention on Human Rights (“the ECHR”) was not engaged; and(ii) the inquest would be heard without a jury because section 7(2)(b) of the Coroners and Justice Act 2009 (“the CJA”) did not apply. The Claimant contends that both of these decisions were wrong in law. He seeks orders quashing the decisions and giving appropriate declaratory relief.[3]By order of HHJ Halliwell (sitting as a Judge of the High Court) dated 21 March 2025, the claim proceeded to a “rolled-up” hearing on 17 July 2025.[4]The Coroner adopted a neutral stance in these proceedings, albeit having filed Detailed Grounds explaining the decisions.[5]The First Interested Party (“the Chief Constable”) was recognised as such in the inquest and in these proceedings because Mr Farley had had contact with several Merseyside police officers shortly before his death, and it is their conduct which the Claimant contends engages Article 2. The Chief Constable submitted that the Coroner’s decision was correct such that permission should be refused or the claim dismissed.[6]The Second Interested Party (“the Trust”) was recognised as such because Mr Farley had been referred to their mental health services prior to his death. However, the arguments relating to Article 2 and the summonsing of a jury did not relate to the care provided to Mr Farley by the Trust. Accordingly, the Trust did not file an Acknowledgment of Service or play any part in the proceedings.[7]Both the Coroner and the Chief Constable contended that the claim had not been brought “promptly” or “without undue delay” as required.[8]The Chief Constable also argued that even if any errors with respect to the jury decision had not occurred, the outcome for the Claimant would not have been substantially different, thus invoking sections 31(3D) and (2A) of the Senior Courts Act 1981 (“the SCA”).[9]I was greatly assisted by the comprehensive written and oral submissions from all counsel. The Claimant did not attend the hearing in person. At the outset of the hearing I asked that his counsel convey to him the condolences of the court; and reiterate to him that although as with many cases of this nature it is necessary to traverse the facts and law in some detail, nothing said at the hearing or in this judgment should detract from the fact that at the centre of the claim is a bereaved family.[10]The Coroner has indicated that the position in respect of Article 2 will be kept under review throughout the inquest. However, it was not suggested that this judicial review was premature, no doubt because it includes a challenge to the decision not to summons jury which could not, unlike that in relation to Article 2, be re-visited once the evidence has been heard.[11]This judgment is structured as follows: The legal framework: paragraphs [12]-[37]; The factual background: paragraphs [38]-[91]; The Coroner’s decisions: paragraphs [94]-[101]; The issues: paragraph [102]; Issue (1): Delay: paragraphs [103]-[113]; Issue (2): Sections 31(3D) and (2A) of the SCA: paragraphs [114]-[120]; Issue (3): Permission: paragraph [121]; Issue (4): Ground 1 - the Article 2 operational duty: paragraphs [122]-[216]; Issue (5): Ground 2 - the Article 2 systems duty: paragraphs [217]-[225]; Issue (6): Ground 3 - the jury issue: paragraphs [226]-[240]; and Conclusion and relief: paragraphs [241]-[242].

The legal framework

(i) : The CJA, sections 5 and 7

[12]Section 5 of the CJA defines the matters to be ascertained in a Coroner’s investigation in material part as follows: “5. Matters to be ascertained(1) The purpose of an investigation under this Part into a person’s death is to ascertain— (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death.(2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c. 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death.(3) Neither the senior coroner conducting an investigation under this Part into a person’s death nor the jury (if there is one) may express any opinion on any matter other than — (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c)…”.[13]Section 7 of the 2009 Act provides in material part: “7. Whether jury required(1) An inquest into a death must be held without a jury unless subsection (2) or (3) applies.(2) An inquest into a death must be held with a jury if the senior coroner has reason to suspect— (a) that the deceased died while in custody or otherwise in state detention, and that either— (i) the death was a violent or unnatural one, or (ii) the cause of death is unknown, (b) that the death resulted from an act or omission of— (i) a police officer, or (ii) a member of a service police force, in the purported execution of the officer’s or member’s duty as such, or (c) that the death was caused by a notifiable accident, poisoning or disease.(3) An inquest into a death may be held with a jury if the senior coroner thinks that there is sufficient reason for doing so.” in the purported execution of the officer’s or member’s duty as such, or (ii): Article 2 in overview

in the purported execution of the officer’s or member’s duty as such, or

[14]The “Convention rights” in issue under section 5(2) of the CJA are typically those in Article 2, which provides thus: “(1) Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction for a crime for which this penalty is provided by law”.[15]The nature of the duties derived from Article 2 was comprehensively considered by Popplewell LJ in R (Morahan) v West London Assistant Coroner [2021] EWHC 1603 (Admin), [2021] QB 1205. His judgment was upheld by the Court of Appeal at [2022] EWCA Civ 1410, [2023] KB 81 and cited with approval by the Supreme Court in R (Maguire) v Blackpool and Fylde Senior Coroner [2023] UKSC 20, [2023] 3 WLR 103.[16]Popplewell LJ explained that Article 2 has been interpreted as imposing three distinct duties on states and those exercising state functions:(i) a negative duty to refrain from taking life without justification;(ii) a positive duty to protect life; and(iii) an investigative duty to inquire into and explain the circumstances of a death: Morahan at [30].[17]The positive duty in (ii) above has two aspects, the “positive operational duty” and the “framework duty, of which the latter aspect is sometimes referred to as a systems duty”: Morahan at [30](2). The legal principles relevant to each of these aspects are set out at [22]-[33] and [34]-[37].[18]As to the investigative duty to inquire into and explain the circumstances of a death: “There are two different investigative duties which have a different scope and different juridical basis. One is a substantive duty to investigate every death as an aspect of the framework duty; the other is a procedural obligation which arises only in some cases, and is parasitic on the possibility of a breach by a state agent of one of the substantive operational or systems duties. When the latter arises, it is a duty of enhanced investigation, to initiate an effective public investigation by an independent official body. This is the enhanced investigative duty”: Morahan at [30](3).[19]Popplewell LJ address the issue of when the enhanced investigative duty arises in Morahan thus: “75. Lord Bingham’s formulation in Middleton [v West Somerset Coroner [2004] 2 AC 182] identifies the duty as arising when there is a sufficiently arguable breach by the state of one of its substantive obligations (“it appears that [a substantive obligation] has been or may have been violated”)…This threshold is a low one because to impose a more onerous burden would run the risk of the coroner determining, in advance of the full evidential picture, what the outcome of any inquest might be. Nevertheless it must amount to more than mere speculation. There must be a real evidential basis which makes the suggestion of a breach of a substantive obligation by the state a credible one”.[20]Popplewell LJ returned to the threshold issue later in the judgment, thus: “102. Nor do I regard that threshold of arguability as any different from the relatively low threshold which arises outside the category of cases giving rise to an automatic duty, where there is, for example, an arguable breach of the positive operational Osman duty in the particular circumstances of an individual death. The latter arises where, in the words of Burnett CJ in Maguire, a breach can credibly be suggested…These different expressions (grounds to suspect, legitimate suspicion, possibility, potential, more than fanciful, credible suggestion) are, in my view, simply alternative ways of expressing a single concept of a single threshold of arguability. It is a concept which is similar to the domestic test for summary judgment, keeping in mind that in the article 2 investigative duty context the test often falls to be applied at an early stage when the evidence is all in the hands of the state authorities (a factor also taken into account in the summary judgment jurisprudence: the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital National Health Service Trust v Hammond [2001] Lloyd’s Rep PN 526)” (iii). The Article 2 positive operational duty[21]The positive operational duty is “a duty, first articulated in Osman v UK [1998] 29 EHRR 245, to take positive measures to protect an individual whose life is at risk in certain circumstances”: Morahan at [30](2)(b).[22]Popplewell LJ explained the nature of the duty further in Morahan thus:
“38. The positive operational duty arises where the state agency knows or ought reasonably to know of a real and immediate risk to an individual’s life, and requires it to take such measures as could reasonably be expected of it to avoid such risk (Osman [v UK [1998] 29 EHRR 245] paras 115, 116). In this context: (1) Risk means a significant or substantial risk, rather than a remote or fanciful one. In Rabone the risk in question was one of suicide and was quantified as being 5%, 10% and 20% on successive days, which was held to be sufficient (see paras 35-38). (2) An immediate risk to life means one that is “present and continuing” as opposed to “imminent” (Rabone para 39). (3) The relevant risk must be to life rather than of harm, even serious harm (G4S Care and Justices Services Ltd v Kent County Council [2019] EWHC 1648 (QB), paras 74-75 and R (Kent County Council) v HM Coroner for the county of Kent [2012] EWHC 2768 (Admin) at paras 44-47). (4) Real focuses on what was known or ought to have been known at the time, because of the dangers of hindsight (Van Colle [v Chief Constable of the Hertfordshire Police [2009] 1 AC 225] at para 32). (5) Overall, in the light of the foregoing considerations viewed cumulatively, the test is a stringent one (see Van Colle, per Lord Brown of Eaton-under Heywood at para 15; and G4S, paras 71-73). It will be harder to establish than mere negligence, but that is not because reasonableness here has a different quality to that involved in establishing negligence; rather it is because it is sufficient for negligence that the risk of damage be reasonably foreseeable, whereas the operational duty requires the risk to be real and immediate: see Rabone at paras 36-37. 39. It is also clear that the existence and scope of the duty must not impose an impossible or disproportionate burden on state agencies in carrying out their necessary state functions and must take into account the individual’s rights to liberty (article 5) and private life (article 8): see Osman at para 116, Rabone at 104 and Fernandes de Oliveira [v Portugal (Application No 78103/14) (2019) 69 EHRR 8, EctHR (GC)] at paras 111, 125, 131.”
[23]“Real” in this context means objectively well-founded: Re Officer L[2007] UKHL 36, [2007] 1WLR 2135 at [20].[24]Popplewell LJ’s description of the “real and immediate” test as a “stringent” one in Morahan at [38](5) reflects observations to similar effect in, for example,(i) Van Colle at [69] where Lord Hope referred to the “very high threshold”;(ii) Re Officer L at [20], where Lord Carswell described it as a “criterion” that is “not readily satisfied”, and a “high threshold”; and(iii) Savage v South Essex Partnership NHS Foundation Trust [2009] 1AC 681 at [41] where Lord Rogers held that the House of Lords had been “at pains to stress that the threshold (real and immediate risk to life) for triggering the duty is high”.[25]The duty applies only “in certain well-defined circumstances”: Osman at [115]. More specifically, it is not all risks to life, or even all risks to life within limited categories, which attract the duty, but only real and immediate risks to life in those categories of which the state agent is or ought to be aware: Morahan at [48]. This reflects the conclusion of Lord Dyson JSC in Rabone at [21] to the effect that “the existence of a ‘real and immediate risk’ to life is a necessary but not sufficient condition for the existence of the duty”.[26]Rabone had concerned the self-inflicted death of a voluntary psychiatric patient during a home visit which the defendant hospital had authorised. At [21]-[24], Lord Dyson identified certain “indicia” or essential features of case in which the Strasbourg court had recognised the existence of the duty while, as Popplewell LJ held in Morahan at [44] “recognising that they did not necessarily provide a sure guide in what was a developing jurisprudence”. Popplewell LJ continued at [44]: “The four identified factors were(1) the existence of a real and immediate risk to life as a necessary but not sufficient condition for the existence of the duty;(2) an assumption of responsibility by the state for the individual’s welfare and safety, including by the exercise of control;(3) the especial vulnerability of the individual; and(4) the nature of the risk being an exceptional risk, beyond an ordinary risk of the kind that individuals in the relevant category should reasonably be expected to take”.[27]Applying the “real and immediate” test in Rabone, Lord Dyson agreed with Simon J and the Court of Appeal that the risk of suicide had been “real” (rather than “remote or fanciful”) even when it had been only 5% (at the point the deceased was allowed to leave the hospital), as well as over the subsequent days when it rose to 10% and 20%: [35]-[38]. Lord Dyson also agreed with the Court of Appeal that a risk could be “immediate” even if it was not “imminent”, because when applying the test “[t]he idea is to focus on a risk which is present at the time of the alleged breach of duty and not a risk that will arise at some time in the future”. The risk of suicide had been immediate at the point the deceased left the hospital and remained so during the two days until her death: [39]-[41].[28]The novel issue at the heart of Morahan was whether an NHS trust owed the positive operational duty to a voluntary inpatient with a history of mental illness and harmful drug use from the risk of accidental death by overdose of recreational drugs shortly after she left a rehabilitation unit. She had initially been detained in the unit, but her detention had been rescinded. Having reviewed the key authorities from [41]-[64], Popplewell LJ derived “three important and related points” from his analysis: “65…First, the existence or otherwise of the operational duty is not to be analysed solely by reference to the relationship between the state and the individual, but also, and importantly, by reference to the type of harm of which the individual is foreseeably at real and immediate risk. This follows from the operational duty to protect life having the unifying feature of being one of state responsibility, and the need to focus on the scope of the duty which may be owed. There may be an operational duty to protect against some hazards but not others.66. Secondly, the foreseeable real and immediate risk of the type of harm in question is a necessary condition of the existence of the duty, not merely relevant to breach. Without identifying such foreseeable risk of the type of harm involved, it is impossible to answer the question whether there is an operational duty to take steps to prevent it.67. Thirdly, in cases where vulnerable people are cared for by an institution which exercises some control over them, the question whether an operational duty is owed to protect them from a foreseeable risk of a particular type of harm is informed by whether the nature of the control is linked to the nature of the harm…”.[29]On the facts of Morahan, it was held that the NHS trust had not been under a positive operational duty to protect the deceased from the risk of accidental death by overdose of recreational drugs, irrespective of whether that had been a real and immediate risk of which the NHS trust had been, or ought reasonably to have been, aware, because(i) the NHS trust had not assumed responsibility to treat the deceased for drug addiction of a life-threatening nature,(ii) the deceased was not especially vulnerable, in the sense relevant to the existence of the duty, and(iii) the risk in question was not exceptional; and that, accordingly, since there had been no arguable breach of the state’s substantive duties under Article 2, the enhanced investigative duty did not arise.[30]The Coroner placed reliance on the following cases as illustrating the difficulties in showing a breach of the positive operational duty.[31]First, in Van Colle, no breach of the duty was found in a situation where a defendant, about to be tried for theft, murdered the chief prosecution witness, despite the police having been aware of a series of threats and intimidation by the defendant towards him: see this description of the facts of Van Colle in R (Kent County Council) v Coroner for Kent North-West District [2012] EWHC 2768 (Admin) at [43].[32]Second, in Mitchell v Glasgow City Council[2009] UKHL 11, [2009] 1 AC 874, the House of Lords struck out an Article 2 claim against a local authority because there was nothing in the relationship between the authority as a landlord and one of its secure tenants to place the authority under the positive operational duty (for example, because the tenant who had been murdered was not “ill or otherwise in need of care because of old age”): [68]-[70] per Lord Rodger; and even if the duty had been owed, there was no basis on the facts for averring that the authority, rather than the police, ought to have known that one tenant posed a real and immediate risk to the life of the other: at [32]-[34], per Lord Hope.[33]Third, in Kent County Council itself, the Divisional Court held that the duty did not arise in circumstances involving the death of a 14 year old boy from an overdose of methadone, on the basis that the immediate risk was a risk of harm, not a risk to life. (iv): The Article 2 systems duty[34]In Morahan at [30](2)(a), Popplewell LJ described this aspect of the positive duty to protect life thus: “(a)…a duty to put in place a legislative and administrative framework to protect the right to life, involving effective deterrence against threats to life, including criminal law provisions to deter the commission of offences, backed up by a law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions; and in the healthcare context having effective administrative and regulatory systems in place (Van Colle v Chief Constable of the Hertfordshire Police [2009] 1 AC 225 at para 28, Rabone [v Pennine Care NHS Trust (INQUEST intervening) [2012] 2 AC 72] at paras 12 and 93). This is the framework duty, of which the latter aspect is sometimes referred to as a systems duty”.[35]He observed, citing R (L (A Patient)) v Secretary of State for Justice [2009] 1 AC 588 at paragraph 89, per Lord Walker, that that there is “often no clear dividing line” between the positive operational duty and the systems duty “below the national level”: Morahan at [30](2)(b).[36]In Savage at [50], another case concerning a self-inflicted death by a person who was mentally unwell, Lord Rodger observed that the systems duty meant that the hospital “had, for example, to employ competent staff and take steps to see that they were properly trained to high professional standards” and their “systems of work…plant and equipment…had to take account of the risk that detained patients might try to commit suicide.”[37]In Maguire at [145]-[146], the Supreme Court reiterated existing caselaw to the effect that in the area of healthcare provision, the systems duty operates at a high level, is relatively easily satisfied and will only be found to have been breached in rare cases; and that individual lapses in putting a proper system into effect are not to be confused with a deficiency in the system itself.

The factual background

[38]The following summary of the factual background is taken from material that was before the Coroner when he made the decision under challenge. This comprises the statements the Coroner had obtained and disclosed to the Interested Persons in the inquest process and information summarised in the report of Ian Carney of Merseyside Police’s Professional Standards Department, dated 15 November 2023 (“the PSD report”), which the Claimant relied on in his submissions to the Coroner.[39]The PSD report contained references to footage from one of the officer’s body worn cameras and from several CCTV cameras. The footage has now been served by the Chief Constable and I viewed it prior to the hearing. However, the footage itself was not available to the Coroner before he made the decision.

Relevant police powers, policy and guidance

[40]At the time Mr Farley’s death, Merseyside Police operated a policy entitled Responding to People with Mental Ill-health or Learning Disability dated April 2019 (“the policy”). The Chief Constable has not, despite the duty of candour that applies in these proceedings, disclosed the policy to the Claimant. However, the Claimant has obtained a three-page summary of the policy that is publicly available and extracts from the policy are set out in the PSD report at pages 27-28.[41]Under the policy, a “mental health incident” is defined as one which is “thought to relate to someone’s mental health where their vulnerability is at the centre of the incident or where the police have had to do something different additionally or differently because of it”.[42]The policy describes the operation of a Mental Health Triage Car (“the Triage Car”). This is a “…a joint mental health service and policing approach to individuals who have contact with, or who contact the police and have a mental health component to their presentation”. Its aim is to “improve the service provided to the people of Merseyside, who the police encounter and who may be experiencing difficulties with their mental health or learning disability”. This aim is achieved by “intervening at the earliest opportunity and directing people to the most appropriate support or service available”. The policy continues:
“5.2.2 The following triage car remit has been agreed by all agencies involved: The Mental Health Triage staff can be requested to assist with any policing incident with a mental health component. The mental health component can be a piece of information that leads an officer or member of police staff to suspect that an individual may have mental health issues. The Mental Health Practitioner alongside the triage officer is there to support Merseyside Police by triaging any police incidents that are identified in order to support officers in making decisions about people with all vulnerabilities. Many health needs and vulnerabilities are inter-related and co-dependent. The Mental Health Triage model is a process where people with mental health problems, learning disabilities, substance misuse issues and other vulnerabilities, who come into contact with the police may be identified as requiring assessment at the earliest opportunity. The triage car should be Reactive, Proactive and Preventative.”
The triage car should be Reactive, Proactive and Preventative.”[43]Under the Mental Health Act 1983, section 136(1)(a), if it appears to a police constable that a person is “suffering from mental disorder” and “in immediate need of care or control”, the constable may, if he or she “thinks it necessary to do so in the interests of that person or for the protection of other persons” remove the person to a place of safety.[44]The policy provides that when dealing with someone “who is suspected of having a mental disorder, who is in need of immediate care and control”, officers should consider: “a) Any information provided by the individual themselves c)…information provided by relatives/friends. d) …information provided by any professionals at scene. e) The local environment e.g. would removing them to a different location de-escalate their presentation or are they in danger e.g. on a bridge. f) Requesting Niche/PNC checks for information to assist with decision making. g) Request a Mental Health Triage car to attend (if available)…”.[45]The policy continues: “24/7 MH Crisis Professionals lines are available for officers to seek advice from a qualified Mental Health Practitioner when dealing with an individual they suspect to be in MH Crisis or are dealing with an incident with a mental health component and there is no MH Triage Car available and/or where they are considering utilising powers under S136 MHA” [bold in the original].[46]The PSD report at page 29 summarises the relevant section of the College of Policing’s Authorised Professional Practice, as follows:
“[The College of Policing] had adopted the THRIVE (threat, harm, risk, investigation, vulnerability, and engagement) definition of vulnerability. This states that a person is vulnerable if, as a result of their situation or circumstances, they are unable to take care of or protect themselves or others from harm or exploitation. Applying the THRIVE approach requires the following four steps. • Identify an individual’s vulnerability or vulnerabilities. • Understand how these vulnerabilities interact with the situation to create harm or risk of harm. • Assess the level of harm or risk of harm. • Take appropriate and proportionate action if required, involving partners where they have the relevant skills and resources. In conjunction with the THRIVE approach the College of Policing current guidelines focus on the following to support officers to: • Spot the clues associated with vulnerability-related risk. • Create an environment that encourages individuals to disclose relevant information. • Be curious and obtain a rich picture of circumstances associated with an incident.”

Events prior to 11 April 2023

[47]Mr Farley suffered from psychosis and depression and appears to have been a heavy user of drugs and alcohol.[48]On 11 November 2015 while he was living with his mother, a report was made to Merseyside Police that he was self-harming by cutting his left forearm and that he was hearing voices.[49]On 16 October 2016 a Vulnerable Persons Referral Form (a “VPRF/1”) was made about Mr Farley after he took an overdose of mental health medication, Amisuplride. He initially left hospital but was returned by the police on a voluntary basis to be assessed.[50]In 2017 Mr Farley’s mother passed away. He was treated for his psychosis by the Early Intervention Team (“EIT”) in Sefton until March 2018 and then transferred to the Crosby Community Mental Health Team (“CMHT”). After his discharge from the EIT he stopped taking his anti-psychotic medication. Poor compliance with medication, including non-attendance at depot medication clinics, would become a feature of Mr Farley’s presentation from then on.[51]By March 2021 he had abandoned his flat, making himself homeless, and was given temporary accommodation in Southport.[52]On 2 April 2021 the Trust made a vulnerable adult referral to Merseyside Police because the staff were concerned that he had not been seen for a number of days and had failed to attend for a depot injection. Police officers located him in the entry area and he was safe and well.[53]On 20 June 2022 Mr Farley was found by police officers in a car park on Marine Terrace in Liverpool. He was face down and “motionless for 15 minutes”. He was drunk and police officers took him home. A further vulnerable adult referral was made.[54]On 19 February 2023 Mr Farley was found on the roof of the car park at Aintree Hospital. He was encouraged down by security staff. He reported suicidal ideation. He was referred to the liaison psychiatry service at the hospital, “Core 24”. He was assessed by Elicia Gregory, Registered Mental Health Nurse and Clinical Lead at Core 24, and her colleague Rebecca Taylor.[55]Mr Farley reported fleeting suicidal thoughts due to auditory hallucinations. He reported hearing voices of a derogatory nature and said he had been struggling with the voices for 8 years. He was pleasant, polite and jovial throughout the assessment. He denied further thoughts, plans or intent of deliberate self-harm or suicidal ideation during the assessment. He reported being regretful of attending the car park, which he described as “stupid”. He expressed enthusiasm about re engaging with community mental health services and Sean’s Place, an organisation providing mental health support for men.[56]Ms Gregory and her colleague discharged Mr Farley home and referred him back to the CMHT for further review of his mental state and his medication. He was given Mersey Care crisis information and “Crisis Café” information. A referral was made to Sean’s Place. A follow up call was made confirming he was at home and safe and well with a plan to relax for the rest of the day. He told the staff member he had support from his carer and would contact services should he require support. The staff member advised that an out-patient appointment with CMHT would be arranged for him soon. He was also seen by Sean’s Place.

The events of 11 April 2023

[57]At some point prior to 9.33 am on 11 April 2023, Mr Farley went on to the fourteenth floor of the multi-storey car park at the New Strand shopping centre in Bootle. CCTV footage shows him carrying an open bottle of beer and a black plastic bag. He jumped up on to the railings surrounding the car park and then jumped back down again. Two security guards saw him and spoke to him, apparently asking him to leave. He took the lift down and exited the centre.[58]At around 9.36 am he entered another car park, around 100 yards away on Delaware Road. CCTV footage shows him walking towards the ramps that lead to the top of the car park.[59]At 9.57 am, a concerned member of the public called 999, having observed him for a couple of minutes. During the call she said: “He’s on the floor, he’s sitting down on the floor on the actual roof of the car park, I don’t know if he’s got headphones I can’t see that far, but he’s talking away whether it’s to someone or to himself but he’s getting really aggressive. He look[s] visibly crying, just a bit worried in case he’s having a bit of a meltdown”.[60]The operator and asked for a patrol to attend on a grade 1 (emergency response). The information provided by the caller was recorded on the police Storm Log (reference MP-20230411-0242), which was available to the officers deployed to the incident, as follows: 09.57:38 999 call received into Merseyside Police 09.57:50 Male was on roof of car park 09.57:57 Male is walking round on roof 09.58:43 Now sitting on floor punching the ground 09.59:10 He is crying, looks agitated and is talking – There is nobody else there 10.03:20 Noted, patrols to make a silent approach. Ambulance to be advised[61]At 10.06 am several police officers arrived at the scene but did not locate Mr Farley until around 10.18 am, having initially looked in the wrong car park.[62]The officers principally involved with Mr Farley were(i) PC 7166 Frances McCoy, a newly qualified constable serving in her probationary period, having completed the tutoring phase of her training in February 2023;(ii) PC 4081 Jones, a constable still in her tutoring phase, with five weeks’ operational policing experience; and(iii) Sgt 5418 Saunderson, an officer with 14 years’ experience, two of which had been as a Sergeant.[63]At around 10.18 am, PC McCoy approached Mr Farley alone. She described him as “sitting on the floor of the car park… at the top of the ramp in a small square section of car park not near to any edges”.[64]PC McCoy said “Alright mate what’s up?”. He said “Er nothing I’m just, I’m just drunk”. PC McCoy asked him if she could “mind” his beer for him and he handed it over. She asked him what he had in the bag and he said it was vodka. They had various exchanges about how he was feeling and he said “Fine, I’m just drunk, having a bit of a rant to myself…having a bit of a go at myself really…I just, I just suffer with voices in my head and stuff like that, like I’m fine. I’m genuinely fine. I just, I just needed a bit of a, a release of…”. He said he was on medication “but obviously like I just needed a bit of a release like…[t]he reason you’ve seen me like this is cos I’ve got a lot on my mind; I’ve got a lot on me chest and it’s just the way I deal with it basically”.[65]PC Farley asked Mr Farley whether he had any intentions to hurt himself. He said “No it’s nothing like that it’s just, obviously like I’m just, I’m just releasing…do you know what I mean?”. She asked “How are you feeling right now?” and he said “Fine… I’m feeling fine, I’m just, it’s just a bit like I suffer with voices in me head”.[66]Meanwhile, Student Officer Jones spoke to Robert Foster, the security guard who had seen Mr Farley on the top floor of the New Strand car park. The PSD report quotes Mr Foster as telling Student Officer Jones that he had seen Mr Farley in the other car park and that Mr Farley had said to him “I’ve got issues” and “I’ve lost a girlfriend”. In his statement dated 22 June 2023, Mr Foster said that when he first saw Mr Farley he was “stood looking over the wall towards the car park of the police station”.[67]At around 10.19 am, Sgt Saunderson joined PC McCoy with Mr Farley. As the Sergeant began to ask him questions, PC McCoy said “I must have left my Pronto in the car”. The Pronto is a device on which officers can access and record information on police systems. Mr Farley said to the sergeant “I’m not intending to hurt myself…I’m just releasing things off me chest…I’m just, like I, I get voices in me head and I just, it’s just a way to release”. Sgt Saunderson asked whether Mr Farley would like to go to the hospital. He said he did not.[68]Mr Farley and the officers walked away from the area where Mr Farley had initially been found. As they did so, he said “I didn’t expect them to be so many here [sic]” (presumably a reference to the number of officers present). At various points he said “flipping hell you must all be concerned…sorry, sorry, I’m not intending to do anything dangerous” and “I’m not intending to do anything stupid…or anything bad, that is why I was sat there talking.”[69]Sgt Saunderson’s evidence was that as they were walking down the car park he and PC McCoy were joined by Student Officer Jones, at which point he decided to leave the two constables to deal with Mr Farley. He found PC Davidson, the officer tutoring Student Officer Jones, and instructed him that a VPRF/1 would have to be completed.[70]PC McCoy and Student Officer Jones accompanied Mr Farley down to street level. Once out of the car park, they asked Mr Farley for a number of details. He told them that he took 10mg of Olanzapine (an anti-psychotic medication) and 50mg of Sertraline (an anti-depressant) daily and provided his date of birth, address, the name and address of his GP and other personal details. When asked whether he had any “mental health”, he told the officers that he was “diagnosed with psychosis about 7 years ago” and “that’s why I talk to myself basically”. PC McCoy explained to Mr Farley that she would “put in a referral” for him (ie. a VPRF/1).[71]Having taken the necessary details, PC McCoy asked Mr Farley “What’s your plans now James?”, to which Mr Farley replied “Erm, probably go home?” and “To be fair I think I’ve caused enough trouble”. Mr Farley apologised again. PC McCoy’s evidence is that there was a brief further exchange in which Mr Farley gave her permission to throw away the remainder of the bottle of vodka she had taken from him.[72]At around 10.22 am the officers allowed Mr Farley to leave, being satisfied that he did not pose a risk. The officers returned to other duties. When at ground floor level Mr Farley headed away from the car park.[73]At 10.41 am, CCTV footage from the New Strand shopping centre shows Mr Farley enter via the entrance next to the Addison Arms Public House on Stanley Road. He was not carrying the bag or a bottle of beer he had had with him on the roof. He walked through the Strand into a lift. At 10.42 am he can be seen inside the lift punching the doors. He exited the lift on the thirteenth floor and walked up the ramp to the fourteenth floor.[74]At 10.43 am Mr Farley walked to the edge of the car park and jumped over the side, falling to the ground. At 10.45 am a call was made to police to the effect that a man had jumped from the car park and was on Vermont Way. Emergency services attended and he was taken to Aintree Hospital. Resuscitation efforts were unsuccessful. He was pronounced dead at 11.41 am.[75]A subsequent search of Mr Farley’s home found two notes, both undated and unsigned, but understood to have been written by him. In the first (exhibit CP/3) Mr Farley wrote “Before I die I want my family to know I love them”. He referred to the pain of losing his mother and referenced his best friend Danny. The second (exhibit CP/4) was addressed to Mr Farley’s brothers, nieces and nephews. Mr Farley said he loved them and hoped they had a good life.

The PSD investigation and report

[76]The PSD investigation conducted by Mr Carney focussed on the conduct of Sgt Saunderson, PC McCoy and Student Officer Jones. He was considering whether they had breached Home Office Complaint Code A1, involving police action following contact, because it was alleged that they had responded insufficiently to the incident involving Mr Farley.[77]In the course of his investigation, Mr Carney sought the opinion of Sgt 5061 Shelley, the supervisor of the force’s Mental Health Triage Team. Mr Carney summarised Sgt Shelley’s views at page 26 of the PSD report. He began the summary as follows:
“Sergeant Shelley concluded James Farley appeared to be having a mental health crisis which is evidenced by:- • The initial call reporting the male on the car park was agitated, aggressive and talking away and punching the ground. • James states ‘I’m just drunk’ ‘I’m having a bad day’ ‘I’m just having a rant to myself’ ‘I suffer with voices in my head’ ‘I’ve got a lot on my mind, a lot on my chest’ He also confirms he has a diagnosis of a mental illness (Psychosis) and that he is prescribed olanzapine and sertraline. • Strand Security Officer is recorded on Body Cam as stating James told him he had ‘lost his girlfriend.’ • James does state ‘I’m fine honestly’ and repeats this on a number of occasions. James was polite and compliant with officers and appeared suggestable to options. • James confirms he was diagnosed with Psychosis 7 years ago and that he is prescribed olanzapine 10mg and Sertraline 50 mg.”
[78]Mr Carney noted that Sgt Shelley had made the following positive observations about the officers’ response: “Sergeant Shelley reports the officers have not gone against force policy and have correctly completed a VPRF1 and asked the correct questions about thoughts of him harming himself… The officer states the decision not to implement S136 of the Mental Health Act is acceptable”.[79]However, Sgt Shelley was also critical of several aspects of the officers’ response:
“He suggests not all the opportunities were explored. He states the MH triage car was available and the Mental Health practitioner paraded for duty at 10:30 hours. He states the triage officer could have conducted background checks with mental health services and advised the officers to contact 24/7 Mental Health Crisis Lines. He also suggests if contacted it is feasible they could have asked officers to remain with him whilst they made to the scene as the practitioner arrived… Sergeant Shelley states the options available to the officers were:- • Contact with the triage officer on duty covering North. • Consult with the urgent careline. The above consultations would have provided the officers with James’s mental health background and would have assisted with making a more informed decision around safeguarding. The officer also comments more positive action such as persuading him to go to hospital or take him home to a family member as a protective factor whilst he was drunk and in crisis would have provided more robust safeguarding.”

Sergeant Shelley states the options available to the officers were:-

[80]Mr Carney also sought the views of Constable Sherwen, a Mental Health Operational Liaison Officer, which were summarised at pages 26-27 of the PSD report as follows:
“Constable Sherwen states she has contacted Mersey Care Trust. James Farley, at the time of his death, was open to South Sefton Community Mental Health Team. He had a mental health diagnosis and had issues with alcohol. James was also awaiting housing with CHART. It is recorded on Mersey Care systems that James was on top of a car park in February that year (2023) and went to A&E, however it is unclear if he attended himself or was taken by someone. She confirmed [who] she spoke with was the Mersey Care Triage Car manager, he stated if he had had an enquiry via triage car or the Professionals Line from the officers at scene and they described how he was presenting, he definitely would have wanted James to be seen and assessed by either a Mental Health Practitioner or by attending A&E. The officer adds in her email ‘Although the triage nurse was not on duty at the time the incident started, we did have a triage officer on duty and it is standard practice for them to contact the Mersey Care professionals line (if there isn’t a triage nurse).’ ‘A MH practitioner in A&E, a triage MH practitioner and a MH practitioner answering the professional’s line [sic] would all have access to the information above and would likely have the same opinion as the manager we spoke with.”
[81]Mr Carney’s conclusions as to the officers’ conduct were set out at pages 30-32 of the PSD report, in material part as follows:
“I agree with Sergeant Shelley…that James Farley is suffering a mental health crisis… There is no evidence to suggest the officers who dealt with James Farley were intentionally negligent or acted with malice. However the officer’s decision making was ultimately flawed, they made decisions based solely on their personal interpretation of how he presented to them rather than any fact based evidence. The information they received was that a male was on the top floor of the car park, agitated, talking to himself, and hitting the floor. It appears because he was sat in the middle of the roof rather than at the perimeter, and was co-operative and compliant, the perceived risk/harm/threat by the officers was reduced from their initial considerations. The officers did not conduct any basic police checks on James Farley, PNC would not have provided any information however Niche may have provided useful information that may have triggered more intrusive questioning. The officers were too easily swayed by James Farley[‘s] insistence he was not going to self-harm despite him being intoxicated with alcohol, the admission that he was hearing voices in his head and issues with his mental health. At no point did the officers question what the voices were telling him; if they had this may have triggered different considerations and options. Constable [Jones] was still in her tutor phase and Constable McCoy had a few months of operational policing experience, consideration has to be given to their inexperience of dealing with these types of situations, however Sergeant Saunderson is an experienced police officer and in his judgement James Farley was not experiencing a mental health crisis and therefore made the decision not to treat him as a vulnerable person and states he allowed the officers to deal with him as they thought appropriate. The intervention by Sergeant Saunderson in my opinion had a negative effect on the situation. Inexperienced officers seek confirmation of their actions and their decision making by more experienced officers particularly a supervisor, his lack of guidance or instruction implies he is satisfied with the actions of the officers. His only instruction was to take a VPRF1, which is a slow time referral to the multi-agency safeguarding hub (MASH). Constable McCoy in her account mentions it was her belief she was acting correctly as other officers would have intervened, including no doubt Sergeant Saunderson if they believed she wasn’t doing something correctly. The officers attended promptly in accordance with policy and procedures. They used tactical communications and ensured the initial safety of James Farley by bringing [him] to the ground floor. The officers obtained details for a VPRF/1 referral form and asked him if he wished to go to hospital. They questioned him several times on his intentions and asked him what he was going to do at the conclusion of the police contact. However, there were several missed opportunities for the officers to ‘join the dots’ and a lack of operational policing experience contributed to their decision making. A Security Officer told the police that James Farley had been brought down from an adjacent car park. This information was not acted upon and was not conveyed to the radio room or officers dealing with James Farley. The police officers failed to conduct basic police checks, they failed to contact the MH triage car or contact a family member, Constable McCoy and Constable Jones have provided explanations why those inactions took place whilst Sergeant Saunderson says he left the matter to the two officers and had left prior to the final decisions being made. I disagree with Sergeant Saunderson[‘s] assertion [that] James Farley was not suffering from a Mental Health crisis. The pivotal failure was not to contact the Mental Health triage team, even without a MH nurse the officers would have contacted the NHS professionals through the 24/7 crisis phone number and advice could have been sought by them… If officers had decided to consult the service, they may or may not have gained further information in relation to the incident they were dealing with, however, they almost certainly would have been able to benefit from professional advice on how to deal with the situation from suitably trained individuals. This advice could have influenced their decision making and assessment of risk… Sergeant Saunderson says he did not consider James Farley to be in crisis and his identification of risk/harm was reduced when it was known he was sat in the middle of the roof and was compliant. He left the incident near its conclusion and provided the only advice of completing a VPRF/1. I am uneasy with this officer[’]s account as it is clear James Farley was experiencing a mental health crisis and for such an experienced officer his decision making and leadership on the day is below what is expected.”
[82]Mr Carney’s overall conclusion with respect to Code A1 was that the service provided by each of the three officers was “not acceptable”, because each of them had breached the part of the Standards of Professional Behaviour to the effect that “[o]fficers will be diligent in the exercise of their duties and responsibilities”. He concluded that their conduct was not so serious as to justify disciplinary action: rather, each officer should be dealt with by the Reflective Practice Review Process and should receive input from the Mental Health Triage Team.[83]Mr Carney observed that the gap in Student Officer Jones’ knowledge with respect to conducting police checks on people she interacted with may be reflected with other students and could be addressed by the Training Academy.[84]The appropriate authority for the purposes of the regulatory framework, DI Smith, agreed with Mr Carney’s findings and recommendations.[85]The Claimant’s wife (Mr Farley’s sister-in-law) appealed the decision not to instigate disciplinary proceedings against the officers to the Independent Office of Police Conduct (“IOPC”). By a report dated 15 March 2024, John Curle of the IOPC dismissed the appeal.

The Coroner’s investigation

[86]Meanwhile, the Coroner had opened an investigation into Mr Farley’s death.[87]On 14 April 2023 Dr JE Medcalf, Consultant Forensic Pathologist, conducted a post-mortem examination in respect of Mr Farley. He concluded that his cause of death was “multiple injuries”. The blunt force injuries to Mr Farley’s body were “in keeping” with a fall from a height and there were scars on his left arm that were “fairly typical” of previous deliberate self-harm. Toxicological analysis revealed evidence of recent cocaine use and a somewhat raised blood alcohol level which Dr Medcalf opined would “potentially” have influenced Mr Farley’s actions.[88]On 26 June 2024, the Coroner confirmed that he had opened an inquest into Mr Farley’s death and that the Interested Persons were the Claimant, the Chief Constable and the Trust.[89]On 5 September 2024 the Defendant sent a “Notice of Inquest” to the Claimant and other Interested Persons. At section 2, he indicated that the scope of the inquest under section 5(1) of the CJA would be “Merseyside Police involvement with deceased on 11 April 2023; and Mental Health Service involvement with the deceased in particular between 19 February 2023 and 11 April 2023”. At section 3, he set out a list of 15 witnesses for the inquest, including Sgt Saunderson and PC McCoy. At section 4, he confirmed that he was making disclosure of the witness statements of all those named in section 3.[90]Pausing there, it is apparent that the Coroner intended to adopt a relatively broad scope to his investigation. The parties appeared to accept that the Article 2 decision might not make a significant difference, if any, to the scope of the inquest, albeit that it would affect the matters to be determined under section 5 of the CJA: see [11] above.[91]At section 5 the Coroner addressed the “Form of Inquest” in the following terms:
“The Coroner directs that this is not an Article 2 Inquest and this shall be heard by the Coroner sitting alone. However, should any Interested Person wish to submit that the Inquest should be an Article 2 Inquest and heard before a jury, then Written Submissions must be filed…no later than 14 days from the date of this Notice of Inquest.”
[92]On 19 September 2024, the Claimant filed comprehensive written submissions, drafted by counsel, objecting to the Coroner’s provisional decisions. The Claimant’s position was that the conduct of the officers, including but not limited to that which was found by DI Smith to have been not acceptable, arguably constituted a breach of the Article 2 “operational” duty and the inadequate procedures in place arguably constituted a breach of the Article 2 “systems” duty, thereby requiring the scope and conclusion of the inquest to be expanded by virtue of section 5(2) of the CJA. For the same reasons, he contended there was at least reason to suspect that Mr Farley’s death resulted from an act or omission by the officers, thereby requiring the inquest to be held with a jury by virtue of section 7(2)(b) of the CJA.[93]The Trust confirmed in correspondence that they considered that the Coroner’s provisional views with respect to Article 2 and summonsing a jury were correct. The Chief Constable did not file any submissions.

The Coroner’s decisions

[94]On 26 October 2024, the Coroner sent the Interested Persons a letter entitled “Reply to Submissions”, stating that he maintained his original decision regarding Article 2 and a jury and giving his reasons for doing so.[95]The Coroner set out his key conclusions with respect to Article 2 as follows:
“5. ARTICLE 2: In my opinion, ARTICLE 2 is not engaged because: a) the deceased was not within The State’s responsibility; and b) The State had no knowledge of a particular risk to the deceased. The Test for the Operational Duty to safeguard the lives of those whose life is at risk in particular circumstances will be whether the State Agency: • Knew, or ought to have known, at the time, of the existence of a real and immediate risk to the life of the deceased; and • Failed to take steps within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. “Real and Immediate risk” has been defined as: “Present and Continuing”
. In my opinion it was not so and the Operational Duty to safeguard life did not exist. The “failure to take steps” criteria must be interpreted in a way that does not impose an impossible or disproportionate burden on the Authorities and must be judged reasonably; this includes consideration of: the circumstances of the case; the ease or difficulty of taking precautions and resources available”.

In my opinion, ARTICLE 2 is not engaged because:

[96]He continued by saying he did not accept the submissions made on behalf of the Claimant, and gave a series of reasons, in paragraphs (a)-(g).[97]For ease of reference, I set out the Coroner’s paragraph (b) first, as that was where he set out the relevant legal principles, entirely correctly, as follows:
“(b) In The Supreme Court decision in R(Maguire) v. HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20, Lord Stephens summarised the applicable principles at [239]–[246]. “239. There are substantive positive obligations on a state to take steps to protect life and there are procedural positive obligations on a state regarding investigation of, and the opportunity to call state authorities to account for, potential breaches of substantive positive obligations. 240. I agree that the substantive positive obligations on a state to take steps to protect life are typically analysed as being of two types. First, a systems duty consisting of an obligation on the state to have appropriate legal regimes and administrative systems in place to provide general protection for the lives of citizens and persons in its territory. Second, an operational duty consisting of an obligation on the state to take preventative operational steps to protect a specific person or persons when the state knew or ought to have known of a risk to life; see Osman v United Kingdom 29 EHRR 245 and Rabone v Pennine Care NHS Trust [2021] 2 AC 72 241. Lord Sales states that such an operational duty arises when the state is “on notice that [the specific person or persons] are subject to a risk to life of a particularly clear and pressing kind”
. However, the criterion is a “real and immediate” risk to life. A real risk is one that is objectively verified and an immediate risk is one that is present and continuing; see In re Officer L [2007] 1 WLR 2135, at para 20. Lord Carswell in Re Officer I added that:
“It is in my opinion clear that the criterion is and should be one that is not readily satisfied: in other words the threshold is high.”
Those additional words were considered in Van Colle v Chief Constable of Hertfordshire Police [2009] AC 225. Lord Hope in referring to Lord Carswell’s words stated at para 66:
“I read his words as amounting to no more than a comment on the nature of the test which the Strasbourg court has laid down, not as a qualification or a gloss upon it. We are fortunate that, in the case of this vitally important Convention right, the Strasbourg court has expressed itself in such clear terms. It has provided us with an objective test which requires no further explanation. The question in each case will be whether on the facts it has been satisfied.”
Lord Bingham also referred to Lord Carswell’s words at para 30. Lord Bingham stated that “... the test formulated by the Strasbourg court in Osman and cited on many occasions since is clear and calls for no judicial exegesis”. I would caution that there should not be a domestic gloss on the Strasbourg criterion by using the phrase of “a particularly clear and pressing kind” in relation to “real and immediate risk”. 242. I agree that the procedural positive obligations on a state regarding investigation of, and the opportunity to call state authorities to account for, potential breaches of substantive positive obligations varies according to context. 243. I also agree that for present purposes there are three levels of the graduated procedural positive obligation. 244. First, the basic procedural obligation under which state authorities should take some steps to establish whether the cause of death is from natural causes rather than, say as a result of criminal means such as violence or other foul play. 245. Second, the enhanced procedural obligation. Lord Sales states that under this enhanced procedural obligation “a state may be required to take the initiative to take further steps to investigate possible breaches of the substantive obligations imposed by article 2 ...” . I consider that if the enhanced procedural obligation applies then the state is required to take the initiative. The state authorities must act of their own motion once the matter has come to their attention. They cannot, for instance, leave it to the initiative of the next of kin. 246. The enhanced procedural obligation automatically applies in certain categories of cases, such as where state agents have used lethal force, see McCann v United Kingdom 21 EHRR 97. It also applies in circumstances where there is an arguable breach of the state’s substantive positive obligations which are for present purposes the systems duty and/or the operational duty.”[98]The remainder of the Coroner’s reasoning for the Article 2 decision was as follows:
“(a) The procedural obligation to investigate deaths under ECHR Art 2 does not arise because it does not appear that any of the substantive obligations under the Convention have been breached... (c) On the facts here, I do not consider there to be any credible evidential basis on which the state knew, or ought to have known of a real and immediate risk to the deceased’s life. (d) Having carefully considered the evidential matrix presently available, I determine that there is no evidence of any breach of the general/systemic duty under Article 2. (e) As to causation, none of the errors relied upon by The Family to establish causation could, even arguably, be said to have been causative of the deceased’s death. (f) on the evidence before the Court, in my opinion, there is no Coronial Causation linking the events on the roof of the Car Park on Delamere Road Bootle at approximately 0957hrs , when Police attended, and the subsequent actions taken by Mr Farley, at a different car park, namely, Bootle New Strand Shopping Centre Car Park, at Vermont Way, at approximately 1045hrs that same day. (g) In reaching this decision I note, and take into account: • the short time period between the 2 events; • the Police involvement at the Car Park on Delamere Road Bootle; • the demeanour of Mr Farley and explanations which he gave to the Police.”
[99]In addressing the jury issue, the Coroner set out s.7 in full, before concluding as follows:
“6. JURY …By s7(2)(b) Coroner and Justice Act 2008, an Inquest must be held with a Jury if The Coroner has reason to suspect that the death resulted from an act or omission of a Police Officer in the purported execution of the Officer’s duty. The phrase: “ act or omission” should be interpreted as there being a requirement for some form of inappropriate act. On the evidence before the Court, it is my opinion that the death did not result from an act or omission of a Police Officer. In relation to my determining Coronial Causation between the events occurring on 11th April 2023: • The Standard of Proof is on The Balance of Probabilities; • The Threshold of Proof is that the events and Police involvement on 11th April 2023 must have contributed more than “Minimally” to the death on 11th April 2023; • The Causation question is whether, on the Balance of Probabilities, the Event or Conduct in question more than: Minimally, Negligibly or Trivially contributed to the death; and • The event or conduct of The Police Officers (on 11th April 2023) must make an actual and material contribution to the death of the deceased. In my opinion, on the evidence before the Court, there is no Coronial Causation established linking events involving Police Officers on 11th April 2023 at Delamere Road Car Park to those events later on 11th April 2023 resulting in the death of Mr Farley. For these reasons, the Inquest will be heard by The Coroner sitting alone.”
In relation to my determining Coronial Causation between the events occurring on 11th April 2023: For these reasons, the Inquest will be heard by The Coroner sitting alone.”

In relation to my determining Coronial Causation between the events occurring on 11th April 2023:

[100]On 11 November 2024 the Coroner adjourned the inquest that had been listed to start on 21 November 2024 in light of these proceedings.[101]Before leaving the procedural history,I would respectfully question the wisdom of the Coroner having determined the Article 2 and jury issues in this case on the basis of written submissions only. The Chief Coroner’s Guidance No. 22 on Pre-Inquest Review Hearings makes clear at [7] that these are precisely the sort of topics that will “often” be included in the agenda for such hearings. This reflects the guidance given in Brown v HM Coroner for Norfolk [2014] EWHC 187 (Admin) at [40]; and R (Fullick) v HM Senior Coroner for Inner North London [2015] EWHC 3522 (Admin), [2015] Inquest LR 321 at [49], to the effect that “[g]ood case management in more complex or difficult cases will usually require that matters of importance such as whether a jury is required should be aired and decided at a pre-inquest review hearing, particularly where the issue may be contentious…[s]ometimes, particularly where from the family’s point of view there is much to discuss, a public hearing may be better than correspondence”.

The issues

[102]The issues that require determination on this claim are as follows:(1) Was the claim form filed “promptly”, as required by CPR 54.5(1)(a) and/or without “undue delay”, for the purposes of section 31(6) of the SCA?(2) Can the Chief Constable successfully invoke the “no substantially different outcome” provisions in sections 31(2A) or (3D) of the SCA?(3) Should permission be granted?(4) Under Ground 1, was the Coroner wrong to find that the enhanced investigative duty under Article 2 was not engaged by reference to the positive operational duty?(5) Under Ground 2, was the Coroner wrong to find that the enhanced investigative duty under Article 2 was not engaged by reference to the systems duty?(6) Under Ground 3, was the Coroner wrong to conclude that section 7(2)(b) of the CJA was not engaged such that there was no requirement to summons a jury?(7) If the claim succeeds in any respect, what relief should be granted?

Issue (1): Delay

[103]Under CPR 54.5(1), a judicial review claim form must be filed “(a) promptly; and (b) in any event not later than 3 months after the grounds to make the claim first arose”.[104]Under the SCA, section 31(6) where the High Court considers that there has been “undue delay” in making an application for judicial review, the court may refuse to grant(a) leave for the making of the application; or(b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause “substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration”.[105]The decision under challenge in this case was dated 26 October 2024. The claim form was filed on 24 January 2025 and so a matter of days before the end of the maximum 3 months period permitted by CPR 54.5(1).[106]Accordingly, the Coroner and the Chief Constable contended that the claim had not been brought “promptly” for the purposes of CPR 54.5(1) and had been brought with “undue delay” for the purposes of section 31(6), such that permission or relief should be refused for that reason alone.[107]This point had been taken by both the Coroner and the Chief Constable in their Summary Grounds. It was therefore regrettable that the Claimant’s legal representatives had not sought to file a Reply dealing with the issue or addressed it in a skeleton argument for the hearing. The Coroner and the Chief Constable were justified in being critical of the Claimant’s legal representatives in this regard.[108]However, having considered the oral submissions made by counsel for the Claimant, I do not consider that he failed to file the claim promptly or without undue delay. If he did, I would extend time to the modest extent necessary. I have reached this conclusion for the following reasons.[109]First, the Claimant acted very promptly in indicating an intention to seek judicial review. The Coroner’s decision under challenge was received by the Claimant’s solicitor on 29 October 2024. The Claimant gave notice of his intention to seek judicial review of the decision within a matter of days: a detailed pre-action letter before claim was sent to the Coroner and the Chief Constable on 8 November 2024.[110]Second, the Chief Constable did not reply to the letter of claim. The Pre-Action Protocol for Judicial Review at paragraphs 20-24 only requires Defendants to respond to a letter of claim. The Chief Constable was an Interested Party and not a Defendant. However as is the usual course of events in claims of this nature the Coroner has adopted a neutral stance and the key Interested Party, here, the Chief Constable, has taken the lead on defending the Coroner’s decision. In those circumstances a response to the letter of claim may well have been of assistance.[111]Third, the Claimant’s counsel told me for at least some of the time between sending the letters of claim and issuing the claim, the Claimant’s solicitor was liaising with the Chief Constable to try and secure disclosure of the outstanding material listed in the letter of claim. These included, for example, the body worn camera and CCTV footage, the full version of the policy, the statements from Student Officer Jones, the Storm Log, Sgt Shelley’s review and the input into the PSD report from Constable Sherwen. The Chief Constable did not make disclosure of any of this material during the pre-action phase. In my judgment the Claimant was entitled to wait and see if any further disclosure was forthcoming before formulating his claim. As far as I can tell, the only further disclosure that the Chief Constable has made since the claim was issued is of the footage. This raises further issues about the Chief Constable’s compliance with the duty of candour: see [40] above.[112]Fourth, neither the Coroner nor the Chief Constable advanced any submissions with regard to any hardship or prejudice they had suffered by any delay, let alone “substantial” hardship or prejudice as would be required to trigger the section 31(6)(b) power.[113]Fifth, this case raises important issues about the death of a vulnerable adult in circumstances where it is said that the acts or omissions of the state have played some part.

Issue (2): Sections 31(3D) and (2A) of the SCA

[114]The relevant provisions of section 31 at the permission stage are as follows:
“(3C) When considering whether to grant leave to make an application for judicial review, the High Court— (a) may of its own motion consider whether the outcome for the applicant would have been substantially different if the conduct complained of had not occurred, and (b) must consider that question if the defendant asks it to do so. (3D) If, on considering that question, it appears to the High Court to be highly likely that the outcome for the applicant would not have been substantially different, the court must refuse to grant leave. (3E) The court may disregard the requirement in subsection (3D) if it considers that it is appropriate to do so for reasons of exceptional public interest. (3F) If the court grants leave in reliance on subsection (3E), the court must certify that the condition in subsection (3E) is satisfied.”
[115]The relevant provisions of section 31 at the relief stage are as follows:
“(2A) The High Court— (a) must refuse to grant relief on an application for judicial review, and (b) may not make an award [of damages etc] under subsection (4) on such an application, if it appears to the court to be highly likely that the outcome for the applicant would not have been substantially different if the conduct complained of had not occurred. (2B) The court may disregard the requirements in subsection (2A)(a) and (b) if it considers that it is appropriate to do so for reasons of exceptional public interest. (2C) If the court grants relief or makes an award in reliance on subsection (2B), the court must certify that the condition in subsection (2B) is satisfied.”
[116]The Chief Constable’s position as set out in her Detailed Grounds and counsel’s skeleton argument was that, had there been “any” error of law on the part of the Defendant, it was highly likely that the outcome for the Claimant would not have been substantially different. No detail was given as to how it was contended that the test set out in sections 31(2A) or (3D) was met other than by reference back to the arguments advanced by the Chief Constable under Grounds 1-3.[117]In oral submissions, counsel for the Chief Constable narrowed her position and indicated that in fact section 31 was only relied on in respect of Ground 3. She argued that even if the Coroner had made no error with respect to section 7(2)(b) of the CJA, the outcome would have been the same. The Coroner did not adopt this argument.[118]In my view it is without merit. The “conduct complained” of by the Claimant under Ground 3 was the Coroner’s decision that a jury need not be summonsed. As counsel for the Coroner properly contended, this issue was a “binary” one in the sense that either the Coroner had erred in his conclusion with respect to section 7(2)(b) or he had not.[119]Accordingly, if the conduct complained of had not occurred, the Coroner would have reached the conclusion the Claimant sought under section 7(2)(b) of the CJA and would have summonsed a jury. Far from being “not substantially different”, the outcome would have been entirely different.[120]For these reasons the Chief Constable is not entitled to rely on sections 31(3D) or (2A) to justify the refusal of permission or the refusal of relief.

Issue (3): Permission

[121]Having considered the written and oral submissions from all the parties, I am satisfied that the claim advances three arguable grounds for judicial review which have a realistic prospect of success. For the reasons given in the preceding two sections neither the issue of delay nor section 31(3D) justify a refusal of permission, notwithstanding the arguability of the grounds. I therefore grant permission on all three grounds.

Issue (4): Ground 1 – the Article 2 positive operational duty

[122]Under Ground 1, the Claimant contended that the Coroner was wrong in law in finding that the enhanced investigative dutydid not apply because there was credible evidence of an arguable breach by Merseyside Police officers of their positive operational duty to Mr Farley.[123]This involved consideration of whether the Coroner erred with respect to his findings as to boththe existence of the positive operational duty (“the duty issue”); and any breach of the duty (“the breach issue”). However, a preliminary legal issue arose between the parties as to the relevant threshold to be applied to the duty issue (“the threshold issue”).

Issue (4)(a): The threshold issue

(a) : The threshold issue

[124]The parties agreed that the relevant threshold for the breach issue was the low one of arguability set out at [19]-[20] above. However, they disagreed as to whether that threshold also applied to the duty issue (“the threshold issue”).[125]The Chief Constable’s position was that the high threshold referred to in the caselaw described at [24] above applied to the duty issue. Support was drawn from R (Robinson) v HM Assistant Coroner for Blackpool & Fylde and another [2025] EWHC 781 (Admin) at [71], where Kerr J referred to the “high threshold required to establish the existence of the operational duty” [emphasis in the original].[126]However, Robinson was a case in which the court was being asked to review a Coroner’s decision on the engagement of Article 2 at the conclusion of the evidence at the inquest: [2]-[3]. It provides no assistance on the question of the threshold to be applied to a decision as to whether Article 2 is engaged before the evidence commences.[127]Rather, the Claimant was right to contend that this question was definitively answered by the Divisional Court in Morahan at [134](i) which makes clear that the low arguability threshold described at [19]-[20] above also applies to the duty issue. At [134](i), Popplewell LJ rejected the challenge because there was “no arguable duty to protect [the deceased] from the risk of accidental death by overdose of recreational drugs irrespective of whether that was a real and immediate risk of which the Trust was aware or ought to have been aware” [my emphasis].[128]I observe that the rationale for the low arguability threshold described in Morahan at [75] and [102], namely the concern to avoid the risk of a Coroner determining what the outcome of any inquest might be without the full evidential picture, applies with equal force to the duty issue and the breach issue, when either is considered before the evidence has been heard. This explains why the threshold is the same for both the duty issue and the breach issue.[129]I do not discern there to be any tension between Robinson at [71] and Morahan at [134](i), but to the extent that there is, I follow Morahan as a Divisional Court authority, later upheld and approved by the Court of Appeal and Supreme Court: see [15] above.[130]It is therefore clear that the low arguability threshold applies to both the duty issue and the breach issue.[131]Before turning to the detail of the Coroner’s reasoning on either issue, I observe that although the Coroner correctly directed himself that the enhanced procedural duty applies when there has been an “arguable” breach of the operational duty, by citing Maguire at [246] (see [97] above), it is not clear that he actually applied the arguability threshold properly in his decision.[132]I say this because the only place in his decision where he mentioned the word “arguable” explicitly was in respect of causation. The other aspects of his decision were much more definitive: they were to the effect that(i) Mr Farley “was not” within the State’s responsibility;(ii) the State “had no knowledge of a particular risk” to him; and(iii) the operational duty “did not exist”; and(iv) “there is no Coronial Causation linking the events …when Police attended, and the subsequent actions taken by Mr Farley”.[133]It is possible that the Coroner’s use of the words “it does not appear that any of the substantive obligations under the Convention have been breached” [my emphasis] connotes him applying the arguability threshold, but the definitive nature of the conclusions referred to in the preceding paragraph leaves room for doubt. This means that the Claimant could well be forgiven for considering that the Coroner had reached substantive conclusions on issues that, at this stage, were only subject to the arguability threshold. This could give the impression that he had pre-determined matters before any evidence had been heard.[134]In fairness to the Coroner the Claimant made no complaint in this regard.

Issue (4)(b): The duty issue

(b) : The duty issue

[135]At the outset of his decision, the Coroner expressed his two key reasons for finding that the Article 2 positive operational duty was not engaged as being(i) Mr Farley was not “within The State’s responsibility”; and(ii) the “State had no knowledge of a particular risk to the deceased”: [95] above.[136]This was the Coroner’s way of referring to the principle that it is not all risks to life, or even all risks to life within limited categories, which attract the duty, but only real and immediate risks to life in those categories of which the state agent is or ought to be aware: Morahan at [48]: see [25] above.

(i) :

“Real and immediate risk”
The test applied by the Coroner[137]The Coroner concluded that(i) the State, through the police officers, had “no knowledge of a particular risk” to Mr Farley;(ii) it was “not so” that the officers knew, or ought to have known, at the time, of the existence of a real and immediate risk” to his life. He also said “I do not consider there to be any credible evidential basis on which the state knew, or ought to have known of a real and immediate risk to the deceased’s life”: see [95] and [98] above.[138]Accordingly, although the first of these conclusions referred rather generically to a “particular” risk, it is clear from the remainder of the conclusions that the Coroner asked himself the correct question, namely whether the police officers knew or ought reasonably to have known of real and immediate risk to Mr Farley’s life: see the test derived from Osman cited in Morahan at [38], at [21] above.

The reasons given by the Coroner

[139]At factor (g) of his decision, the Coroner indicated that he had taken into account three matters: [98] above. It is not clear whether these were matters that he had taken into account in determining the duty issue (and if so, which aspect of it), the breach issue, the issues under Ground 2 relating to the systems duty, or indeed any combination of them. For ease of reference, I address them here.[140]The first reason the Coroner gave was “the short time period between the 2 events”. This was a reference back to the two events he had described in factor (f), namely “events on the roof of the Car Park on Delamere Road Bootle at approximately 0957hrs, when Police attended, and the subsequent actions taken by Mr Farley, at a different car park, namely, Bootle New Strand Shopping Centre Car Park, at Vermont Way, at approximately 1045 hrs that same day”.[141]The Coroner was plainly seeking to convey the fact that there was a short period of time between the officers having contact with Mr Farley and his death. However, the first time he used, of 9.57 am, did not reflect the evidence before him. 9.57 am was the time of the first 999 call about Mr Farley, but the Claimant’s written submissions at [7] had made clear, by reference to the evidence quoted in the PSD report, that the officers did not reach him until 10.16 am. More pertinently, the submissions at [13] indicated that the officers exited the car park and left Mr Farley at 10.22 am; and that he re-entered the car park from which he jumped at 10.41 am. Accordingly, the gap between the end of the officers’ contact with Mr Farley and his decision to jump from the New Strand car park was even shorter than the Coroner appreciated, and in the region of 19 minutes.[142]In any event, I confess I struggle to follow how a short timescale of this kind could properly be used to support a finding that there was no arguable real and immediate risk to Mr Farley’s life of which the officers did or should have had knowledge. If anything, a short timescale of this kind militates in favour of there being such a real and immediate risk, and of the officers having actual or constructive knowledge of it. I say this bearing in mind that an “immediate” risk is one that is “present and continuing”, even if it is not “imminent”: Morahan at [38](2) at [22] above; and noting, as counsel for the Claimant highlighted, that the risk in Rabone had been in place for a longer period, namely two days.[143]The second reason the Coroner gave was “the Police involvement at the Car Park on Delamere Road Bootle”. He did not specify what it was about the police involvement with Mr Farley which led to his conclusion that there was no arguable real and immediate risk to Mr Farley’s life of which the officers did or should have had knowledge. I assume, therefore that this reason is to be read in conjunction with the third reason the Coroner gave, namely “the demeanour of Mr Farley and explanations which he gave to the Police”.[144]Counsel for the Chief Constable placed significant reliance on these matters. She contended that PC McCoy’s body worn camera footage “spoke for itself” in demonstrating that Mr Farley’s demeanour was not a cause for concern; he was not crying, upset or in any visible distress; he was “calm, compliant and affable”; and he did not appear to be heavily under the influence of alcohol. It is also correct that Mr Farley repeatedly reassured the officers that he was fine and had no intention of harming himself and that his plans were probably to go home.[145]In my judgment there are a number of difficulties with the Coroner’s reliance on Mr Farley’s demeanour and explanations.[146]First, as became apparent during the hearing, the Coroner had not watched the body worn camera footage himself before reaching the decision. It is not therefore clear how he reached an assessment of Mr Farley’s demeanour beyond, perhaps, relying on the statements of PC McCoy and Sgt Sanderson which included their own views on the issue. In any event, I do not consider that an objective assessment of Mr Farley’s demeanour on the footage is all “one way”: as counsel for the Claimant contended, it is at least arguable that his demeanour on the footage is not that of a well man.[147]Second, the Coroner was aware that there was credible evidence, in the form of the findings of the PSD investigation, that was critical of the officers for being unduly reliant on Mr Farley’s presentation and explanation: see Mr Carney’s criticisms of the officers for the fact that they “made decisions based solely on their personal interpretation of how he presented to them rather than any fact based evidence” and were “too easily swayed by James Farley[’s] insistence he was not going to self-harm despite him being intoxicated with alcohol, the admission that he was hearing voices in his head and issues with his mental health” and “[a]t no point did the officers question what the voices were telling him”: see the Claimant’s submissions to the Coroner at [17] and the PSD report at page 31, set out in full at [81] above.[148]Third, the Chief Constable’s own policy implicitly recognises that assessments of this kind are more robust when conducted by, or at least with input from, mental health professionals: that is why the policy recognises that mental health professionals can “support” police officers in “making decisions about people with all vulnerabilities” and that they can assist the police in identifying those “requiring assessment [by mental health professionals] at the earliest opportunity”: see [42] above.[149]Fourth, the Osman test requires that consideration is given to what agents of the state ought reasonably to know of a real and immediate risk to an individual’s life, as well as what they actually know: see Morahan at [38] at [22] above. Had the officers taken the steps which the PSD investigation concluded they should have taken, of contacting the Triage Car or the Professionals Line, this would, as Sgt Shelley concluded, have “provided the officers with [Mr Farley’s] mental health background and would have assisted with making a more informed decision around safeguarding”. In particular, as Constable Sherwen confirmed, the officers would have been made aware of the recent incident on 19 February 2023 at Aintree Hospital described at [54]-[56] above: see the Claimant’s submissions to the Coroner at [15]-[17] and the PSD report at pages 26-27.[150]Counsel for the Chief Constable argued that even if the officers had become aware of the 19 February 2023 incident, this was not determinative, because it was around two months earlier; during the incident Mr Farley had presented as “pleasant, polite and jovial”; he had expressed regret at his behaviour; he had denied further plans of self-harm/suicide; he had been enthusiastic to re-engage with mental health services; and ultimately he had been discharged from the psychiatry liaison service at the hospital after assessment.[151]These are all fair points, but it is plainly arguable that the 19 February 2023 incident was relevant to the officers’ assessment of the risk Mr Farley posed on 11 April 2023: counsel for the Chief Constable herself sensibly accepted that “previous history may inform risk”.[152]In my judgment counsel for the Claimant was right to describe the 19 February 2023 incident as having “obvious parallels” to that on 11 April 2023. On both occasions Mr Farley he had been found by a security guard on the top floor of a car park, under the influence of alcohol, experiencing auditory hallucinations. Information about the 19 February 2023 incident would have illustrated to the officers that Mr Farley’s calm, compliant and affable demeanour and explanations on 11 April 2023 were not necessarily inconsistent with very recent – and arguably current – suicidal ideation, as they had not been on 19 February 2023.[153]I therefore conclude that the reasons given by the Coroner do not provide a sound basis for the conclusion that there was no arguable real and immediate risk to Mr Farley’s life of which the officers did or should have had knowledge. In my judgment the position becomes even more problematic when the wider evidence before the Coroner is considered.

Further submissions made by the Claimant

[154]Counsel for the Claimant pointed to the following pieces of information that were known to the officers, all of which matters had been referred to in his submissions to the Coroner and/or were included within the evidence before the Coroner.[155]First, before the officers arrived, Mr Farley had been “walking round on [the] roof” and then “sitting on [the] floor punching the ground”, he was “crying” and “look[ed] agitated”, was “distressed” and alone: see the Claimant’s submissions to the Coroner at [7], citing the Storm Log.[156]Second, Student Officer Jones had been given additional information at the scene by the security guard Mr Foster, that at around 9.33 am Mr Farley had been on the top floor of the nearby New Strand car park where he had said to Mr Foster “I’ve lost a girlfriend”: see the PSD report at pages 22 and 31.[157]Third, Mr Farley told the officers that he had been diagnosed with psychosis seven years earlier and took both anti-psychotic and anti-depressant medication, and made several concerning comments, including “I’m just drunk, having a bit of a rant to myself”, “I just suffer with voices in my head and stuff like that” and “I’m on medication right now, but obviously like I just needed a bit of a release like” and “I’ve got a lot on my mind, a lot on my chest”: see the Claimant’s submissions to the Coroner at [9] and the full transcript of the body worn camera footage in the PSD report, at pages 11-22.[158]Counsel for the Claimant also highlighted the following pieces of information that could have been known to the officers had they conducted the reasonable further enquiries identified in the PSD report.[159]First, had the officers conducted “basic police checks” in respect of Mr Farley on the Niche system, this would have revealed information about the two previous vulnerable adult referrals to Merseyside Police made about him in April 2021 and June 2022. Mr Carney found that further useful information on police systems of this kind “may have triggered more intrusive questioning” by the officers: see the Claimant’s submissions to the Coroner at [17] and the PSD report at page 31.[160]Second, had they officers contacted the Triage Car or the Professionals Line, they would have secured information about Mr Farley’s history of poor compliance with his medication regime and drug and alcohol abuse and the specialist opinion of a mental health professional. As Mr Carney concluded, “professional advice on how to deal with the situation from suitably trained individuals…could have influenced [the officers’] decision making and assessment of risk”: see the Claimant’s submissions to the Coroner at [17] and the PSD report at page 32.[161]Third, if Mr Farley agreed to this course, the officers could have secured input from the Claimant and his wife.[162]In my judgment the Claimant is right to contend that the combined effect each of the matters set out at [146]-[161] above shows that it is arguable that there was a “more than remote or fanciful” risk that Mr Farley was, at the relevant time on 11 April 2023, intending to kill himself; and that officers knew, or should have known, that.

Further submissions made by the Chief Constable

[163]In challenging the analysis advanced by the Claimant, counsel for the Chief Constable pointed to a series of other factors.[164]First, she relied on the fact that when the officers arrived, Mr Farley was not near the edge of the car park, but in the middle of it. However, this fact is tempered by the fact that prior to the officers’ arrival he had been “walking around” the roof; and by his recent history of going on to the roof of a building with suicidal ideation: again, see the 19 February 2023 incident referred to at [54]-[56] above. Moreover, the Coroner was aware that Mr Carney had been critical of the officers for the fact that their assessment of the “perceived risk/harm/threat was reduced”, in part, because Mr Farley was “sat in the middle of the roof rather than at the perimeter”: see the PSD report at page 31.[165]Second, counsel pointed to the fact that Mr Farley provided an explanation as to why he was on the roof, namely “to have a drink, which is something he would often do to clear his head”. This proposition was advanced based on Sgt Sanderson’s witness statement to that effect.[166]However, I cannot locate anything in the body worn camera footage transcript to reflect Mr Farley saying words to the effect that drinking alcohol on the roof of a building was something he “often” did to clear his head. The closest potential reference is where Mr Farley said “Yeah, yeah” in response to the suggestion that he had been “wandering round the car park” and said he was “just drunk, having a bit of a go at myself really…I just suffer with voices in my head and stuff like that. I’m fine. I’m genuinely fine. I just needed a bit of a, a release of…”. PC McCoy interrupted him and said “And is this…how you deal with things is it” and he said “Yeah, yeah, sort of yeah”: see the PSD report at p.12.[167]In any event, reliance on this factor is problematic given Mr Carney’s conclusions that(i) he “disagree[d] with Sergeant Saunderson[‘s] assertion [that] James Farley was not suffering from a Mental Health crisis” as “it was clear that he was experiencing [such a] crisis”;(ii) Sgt Sanderson’s intervention had had a “negative effect on the situation;(iii) for such an experienced officer “his decision making and leadership on the day [was] below what [was] expected”; and(iv) Sgt Saunderson’s overall service was “not acceptable”.[168]Moreover Mr Curle of the IOPC had agreed with Mr Carney that the intervention of PS Saunderson may have had a negative impact on the situation: see the Claimant’s submissions to the Coroner at [17]-18] and the PSD report at pages 32-33.[169]Third, counsel argued that Mr Farley gave full, logical and candid answers in response to officers’ questions, explaining about his mental health and medication. However, this assertion is only a partial statement of the position: PC McCoy noted in her 15 September 2023 statement, he was “struggling to relay information such as his postcode [and] his own phone number” such that she did not consider that he would be able to have provided details of a family member. Moreover, the Coroner was aware that Mr Carney had found that Mr Farley had given an incorrect date of birth: see the PSD report at page 32.[170]Fourth, it was submitted that Mr Farley “showed insight and coping mechanisms” – explaining how he would deal with the voices by “talking through his emotions out loud to himself”. However, this was precisely the behaviour that had led the member of the public to call 999 because the was talking in a way that was “really aggressive” and was crying such that she was “just a bit worried in case he’s having a bit of a meltdown”: see [59] above. It does not necessarily show that he was not suicidal.[171]Fifth, it was argued that the further enquiries suggested by the Claimant would not have fixed the officers with actual or constructive knowledge of a real and immediate risk to Mr Farley’s life because the evidence of previous self-harm on the police system was limited to the reference to him cutting his left forearm in November 2015 and having taken an overdose in October 2016. She rightly highlighted that police records do not make clear whether this was understood to be a deliberate overdose. This information formed part of Mr Farley’s history and the overall assessment of risk. More pertinently, it should have been considered alongside the information about the 19 February 2023 incident.

Overall conclusion on the “real and immediate risk” issue

[172]The Chief Constable’s overall position was that there was a “complete lack of evidential basis” for finding that the officers knew or ought to have known that Mr Farley intended to harm himself, much less that he intended to kill himself when they attended. In oral submissions counsel argued that there even if there was a real and immediate risk at the time the officers arrived, it had dissipated by the time they left.[173]I cannot accept these submissions for the reasons given at [137]-[171] above. In my judgment, applying the numbered factors set out in Morahan at [38], it was arguable that(1) the risk of Mr Farley taking his own life was at least 5% such that it was not remote or fanciful but was significant or substantial;(2) it was an “immediate” risk in that it was “present and continuing”, and may well have been “imminent” given the short timescale involved;(3) it was a risk of death rather than merely serious harm, given the inherent risks of a fatality in jumping from a height; and(4) it was a “real” risk, by reference to what was known or ought to have been known by the officers and was an objectively well-founded risk.[174]I therefore conclude that based on all the evidence before the Coroner, he erred in finding that it was not arguable that the police officers knew or ought reasonably to have known of a real and immediate risk to an Mr Farley’s life. (ii): The Rabone indicia[175]As noted at [95] above the Coroner concluded that “the deceased was not within The State’s responsibility”. This appears to be a conclusion with respect to the first of the Rabone indicia, namely an “assumption of responsibility by the state for the individual’s welfare and safety (including by the exercise of control)”: see [26] above. The Coroner did not give any reasons for this conclusion or address any of the other Rabone indicia.[176]The Claimant’s position was that several of the indicia were present; the Chief Constable contended that none of them were. In my judgment the Claimant’s position on this issue is to be preferred, for the following reasons.[177]First, it is arguable that the officers had assumed responsibility for Mr Farley’s welfare and safety, thus triggering the first indicia. I was taken to no authority to suggest that in interpreting this Rabone indicium, support cannot be drawn from common law cases in negligence which address the concept of assumptions of responsibility. Indeed, I consider that there is force in counsel for the Claimant’s submission that Lord Dyson’s use of the language of assumptions of responsibility, a common law concept, was unlikely to be coincidental and suggest that reference to the common law cases is appropriate.[178]To that end, counsel for the Claimant highlighted common law case to the effect that emergency services can assume responsibility for a person’s care, giving rise to a duty of care in tort, where, expressly or by implication, they give an assurance on which that person relies: see, for example, Kent v Griffiths [2001] QB 36 and Sherratt v Chief Constable of Greater Manchester Police [2018] EWHC 1746 (QB); [2019] PIQR P1 specifically addressing such an assurance being given by the police in response to a 999 call.[179]It is at least arguable that the officers assumed responsibility for Mr Farley’s care. The officers had attended in response to the 999 call for the specific purpose of protecting him from the risk of self-harm or suicide. They took away his bottle of vodka, encouraged him down to the street and took the details of his medical conditions, medication and GP surgery. Both PC McCoy and Sgt Saunderson gave him assurances that the officers were there because they were “worried about” him, and PC McCoy said to him that “we just want to make sure that you were all sound”. They told him they would take steps to protect him such as by completing the VPRF/1 referral. It is at least arguable that these words and actions by the officers amounted to express or implied assurances that they would take care to protect Mr Farley from the specific risk of self-harm or suicide. It is also at least arguable that he acted on those assurances by coming down from the roof with the officers.[180]That said, it was suggested by Lord Burrows and Lord Stephens in HXA v Surrey County Council [2023] UKSC 52, [2024] 1 WLR 335 at [108] that in the case of a vulnerable young child with learning difficulties it would be inappropriate to insist on specific reliance by the child in order to find that there was an assumption of responsibility triggering a duty of care during the respite period. It is at least arguable that the same approach should be taken to a vulnerable adult such as Mr Farley whose ability to reason was impaired by their mental disorder.[181]Lord Dyson noted that “control” might feature as part of the first Rabone indicium. As counsel for the Chief Constable contended, that Mr Farley was not in a paradigm situation of “control” by the state: he was not a mental health patient, nor was he under the direct control of the officers in the sense of having been arrested or detained under section 136.[182]However, there is force in the Claimant’s contention that regard must be had to what the officers should have done as well as what they did do. The conclusions of Mr Carney were clear that the officers should have sought the assistance of a mental health professional. It is possible that had a mental health professional assessed him he would in fact have become a patient.[183]Further, notwithstanding Mr Carney’s conclusion that the officers were justified in not using their section 136 power to detain and remove him to a place of safety on the facts, it remains arguable that the existence of that power afforded the officers a level of control over Mr Farley. It is arguable that had matters unfolded differently, and had, for example, he refused to comply with the officers, attempted to escape, or moved towards the edge of the roof, they would have used the section 136 power.[184]Second,in Rabone at [23], Lord Dyson recognised that when finding that the positive operational duty has been breached, the Strasburg court has “repeatedly emphasised the vulnerability of the victim as a relevant consideration” and “in circumstances of sufficient vulnerability, [the court] has been prepared to find a breach of the operational duty even where there has been no assumption of control by the state”. He gave the example of a scenario where a local authority failed to exercise its powers to protect a child who to its knowledge was at risk of abuse, by reference to Z v United Kingdom [2001] 34 EHRR 97.[185]At [24], Lord Dyson held that a further factor is the nature of the risk. Consideration must be given to whether it is an “ordinary risk of the kind that individuals in the relative and category should reasonably be expected to take or whether it is an exceptional risk”. At [30], he held that risk of suicide to someone suffering from a mental disorder was not an “ordinary” one, because it is likely that the person’s “capacity to make a rational decision to end [their] life will be to some degree impaired” such that they “need…to be protected from the risk of death by those means”.[186]In her concurring judgment at [100] and [102], Baroness Hale held that although “there is no general obligation on the state to prevent a person committing suicide, even if the authorities know or ought to know of a real and immediate risk that she will do so”, throughout the jurisprudence “the special vulnerability of people suffering from mental disorders, especially psychosis, is stressed”. Having reviewed the authorities, at [104] Baroness Hale concluded that:
“The state does have a positive obligation to protect children and vulnerable adults from the real and immediate risk of serious abuse or threats to their lives of which the authorities are or ought to be aware and which it is within their power to prevent.”
[187]Counsel for the Chief Constable submitted that there was simply no evidence to support the assertion that Mr Farley was in the grip of a psychotic episode or did not have capacity. I cannot accept that submission. In my judgment it is at least arguable that all of the principles set out at [184]-[186] above relating to the second and third Rabone indicia applied to Mr Farley’s case. As was the case in Rabone,Mr Farley was especially vulnerable by reason of his psychosis, and he made the officers aware of that fact. Death by suicide in the course of a psychotic episode is, by definition, an “exceptional” rather than “ordinary” risk.[188]Third, Morahan at [65]-[67] makes clear that as well as the reference to the relationship between the state and the individual, regard must be had to the type of harm of which the individual is foreseeably at real and immediate risk: see [28] above. Here the very reason the police officers had been called to the scene was because a member of the public was concerned that Mr Farley was having some kind of “meltdown” and the behaviour he was displaying was a concern. The type of harm in question was a risk that he would harm himself, and given his location, this was specifically a risk that he would harm himself and indeed take his own life by jumping from the roof. This was distinguishable from Morahan because the nature of the relationship between the officers and Mr Carney was directly linked with the type of harm that was foreseeable.[189]For these reasons I conclude that the Coroner erred in finding, to the extent that he did, that it was not arguable that any of the Rabone indicia were present.

Overall conclusion on the duty issue

[190]Pulling all these threads together, I conclude that the Coroner erred in finding that it was not arguable that the officers owed the positive operational duty to Mr Farley.

Issue (4)(c): The breach issue

(c) : The breach issue The Coroner’s reasons

[191]The Coroner concluded that it was “not so” that the officers failed to take steps within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”: [95] above. The Coroner’s reasons for his finding on the breach issue may have included the three factors I have considered at [140]-[153] above.[192]The Coroner also appears to have taken into account the need to interpret the “failure to take steps” criteria “in a way that does not impose an impossible or disproportionate burden on the Authorities and must be judged reasonably” which, he said, “includes consideration of: the circumstances of the case; the ease or difficulty of taking precautions and resources available”: [95] above. This was a reference to the principle set out in Morahan at [39]: [22] above.[193]However, there was no evidence before the Coroner that any of the steps relied on by the Claimant would have placed an impossible or disproportionate burden on the officers. The reason advanced by PC McCoy for not conducting basic checks on Mr Farley was that she had left her Pronto device in the car: but it would not impose an impossible or disproportionate burden to expect her to get her device from the car or to carry out the checks over the radio. The other steps relied on by the Claimant all derived from the report prepared by the Chief Constable’s own PSD report, which reflected the policy and guidance in force at the time. Further, the body worn camera footage shows that there were more officers dispatched to the incident than were required, suggesting resources were not an issue.[194]Further, beyond the issue of PC McCoy’s Pronto device, counsel for the Claimant was right to observe that the officers had not even embarked on the process of considering whether or not any steps they might have taken would place an impossible or disproportionate burden on them: there was no evidence, for example, of them considering a particular option but then rejecting it for reasons of this kind. On that basis it was inappropriate to try and conduct this balancing exercise retrospectively, certainly for the purposes of the low arguability threshold relevant to the duty and breach issues.[195]There is no suggestion that the Coroner considered the remaining part of the principle set out in Morahan at [39], namely the need for the officers to take into account the individual’s rights to liberty and private life under Articles 5 and 8 of the ECHR. However, there is no suggestion that the steps relied on by the Claimant would have caused anything more than a modest interference with Mr Farley’s Article 8 rights; and to the extent that a more serious interference with his right to liberty under Article 5 could have been required, in the event it became necessary to detain or remove him to a place of safety, or admit him for treatment, under the MHA 1983; but provided proper procedures were followed such an interference would not prima facie be disproportionate.[196]The Coroner also considered causation issues, to which I return at [210] below.

The Claimant’s submissions

[197]The Claimant had set out a very clear case on the breach issue in his submissions to the Coroner at [36], to this effect:
“The findings in the PSD report present at least an arguable case that the officers failed to take…measures [as could reasonably be expected to avoid such risk]. All three were deemed by Mr Carney to have failed to have provided an acceptable level of service. In particular: They “did not conduct any basic police checks” on the deceased; PC McCoy did not even have access to a Pronto device which would enable her to carry out such checks; They did not contact the Mental Health Triage Team or seek clinical advice by other means (described by Mr Carney as “the pivotal failure”); They “made decisions based solely on their personal interpretation of how he presented to them rather than any fact based evidence”; Sgt Saunderson wrongly concluded that the deceased was not experiencing a mental health crisis; and The intervention of Sgt Saunderson had a negative effect on the situation”
.

Sgt Saunderson wrongly concluded that the deceased was not experiencing a mental health crisis; and

[198]Counsel for the Claimant amplified these submissions at the hearing before me by reference to the following points, all of which were derived from the material before the Coroner.[199]First, basic police checks on the Niche and PNC systems could have been carried out by any of the officers, either on their Pronto device or over the radio.[200]Second, under the Chief Constable’s policy, the threshold for requesting the assistance of the Triage Car was a low one: it was available to assist in any incident which involved a “mental health component”, that being “any piece of information that leads an officer… to suspect that an individual may have mental health issues”. The policy was also clear that if the Triage Car was unavailable, the Professionals Line was accessible on a “24/7” basis.[201]Third, the College of Policing guidance advised officers to “be curious and obtain a rich picture of circumstances associated with an incident”.[202]Fourth, as well as the matters set out at [197] above the officers had failed to attempt to contact the Claimant and his wife, and Mrs Ferguson had been listed on police records as Mr Farley’s point of contact after the April 2021 incident.[203]The Coroner did not engage with the detail of any of these submissions or with the findings of the PSD report.[204]In my judgment the combination of matters referred to by the Claimant makes out a credible, arguable case that the positive operational duty was breached by the officers.

The Chief Constable’s submissions

[205]The Chief Constable understandably highlighted that a number of measures had been properly taken by the officers:(i) the incident was risk assessed and graded;(ii) officers arrived on scene promptly;(iii) PC McCoy approached Mr Farley slowly, and initially on her own;(iv) officers engaged with Mr Farley, asking pertinent questions to inform their decision-making;(v) officers assessed the risk and considered their powers;(vi) Mr Farley was asked if he would like to go to hospital;(vii) Mr Farley’s alcohol was removed, with his permission;(viii) a VPRF/1 form was completed, and the purpose explained;(ix) the officers accompanied him down to street level and out of the car park; and(x) the officers confirmed with him what his plans/intentions were. None of these matters were disputed by Mr Carney in the PSD report or by the Claimant.[206]As to the actions raised by the Claimant as set out at [197] and [202] above, the Chief Constable did not accept that they “ought to have been taken in the circumstances”: see in her Detailed Grounds at [26]. This submission was hard to reconcile with the fact that all of the actions relied on by the Claimant had been taken from the report of the Chief Constable’s own PSD department which had been highly critical of the officers, the outcome of which had been upheld by the IOPC. That evidence was plainly credible.[207]Counsel for the Chief Constable pointed to the evidence of Sgt Shelley quoted at page 26 of the PSD report to the effect that although the Triage Car was available the mental health practitioner did not parade for duty until 10.30 am. The suggestion was that if the officers had tried to contact the Triage Car while speaking to Mr Farley, they would not have been able to speak to a mental health professional.[208]However it is necessary to read the remainder of the paragraph summarising Sgt Shelley’s evidence, to the effect that(i) the triage officer could have conducted background checks with mental health services and advised the officers to contact the Professionals Line, before the practitioner arrived; and(ii) it was possible that the triage team would have asked the officers to remain with Mr Farley while they made their way to the scene as the practitioner arrived. In addition, Further, Constable Sherwen’s evidence was that a triage officer, a mental health practitioner answering the Professionals Line or a mental health practitioner in A&E, would all have had access to the information about the 19 February 2023 incident; and would all have been likely to conclude, as the Operational Liaison Officer had done, that in light of Mr Farley’s presentation, that he “definitely” should be “seen and assessed by either a Mental Health Practitioner or by attending A&E”: [80] above. Counsel for the Claimant was also right to argue that any ambiguity as to what the mental health professionals in the Triage Car team or those on the Professionals Line would have done should be resolved in the Claimant’s favour at this point, given the low arguability threshold relevant to the breach issue.[209]Counsel for the Chief Constable also argued that even if Mr Farley had been assessed by a mental health professional on 11 April 2023, it is likely that he would be discharged home as he had been on 19 February 2023. In my judgment this submission involved a significant amount of speculation: without further evidence it is far from clear that the outcome would have been exactly the same on 11 April 2023. It is at least arguable that the input of mental health professionals would have led Mr Farley to moderate his intentions and/or to more safeguarding measures being put in place, as had occurred on 19 February 2023. On a practical note, the time taken for Mr Farley to be assessed by a mental health professional on 11 April 2023 would have meant he could not have jumped from the roof when he did, which further undermines the Chief Constable’s submission.

Causation issues

[210]The Coroner went on to consider issues of causation, concluding as follows: “(e) As to causation, none of the errors relied upon by The Family to establish causation could, even arguably, be said to have been causative of the deceased’s death. (f) on the evidence before the Court, in my opinion, there is no Coronial Causation linking the events on the roof of the Car Park on Delamere Road Bootle at approximately 0957hrs, when Police attended, and the subsequent actions taken by Mr Farley, at a different car park, namely, Bootle New Strand Shopping Centre Car Park, at Vermont Way, at approximately 1045hrs that same day”: [98] above.[211]In order to assess whether there was an arguable breach of the positive operational duty, the Coroner was required to determine whether it was arguable that the officers had failed to take measures which “could reasonably be expected…to avoid [the] risk”: Morahan at [38] at [22] above. The test for causation in cases involving the Article 2 duties is “whether the deceased lost a substantial chance of surviving because of the breach”: R (Boyce) v Teesside and Hartlepool Senior Coroner [2022] EWHC 107 (Admin), [2022] 4 WLR 15 at [45] citing Van Colle at [138].[212]The Coroner did not apply this test, but instead that of “Coronial Causation”. He defined this test in his jury decision by reference to both the “more than minimal, negligible or trivial” test and also the “actual and material contribution” test: [99] above.[213]Accordingly, there is a concern the Coroner’s findings on the breach issue were also flawed in that they involved the application of the wrong causation test. Moreover, insofar as the “actual and material contribution” test reflects the approach in tort, this was a more exacting threshold than the Article 2 causation test: as was made clear in Boyce at [45], the Article 2 causation test imports a “lower threshold than the tortious test”. I recognise that this argument formed no part of the Claimant’s case, but it does further undermine the Coroner’s decision.

Conclusion on the breach issue

[214]In addition to the matters set out above the Coroner was required to take into account evidence that might become available, as would be the case on a summary judgment application: see [20] above. Here, the failure of the Chief Constable to make full disclosure including of, importantly, the policy, means that further information relevant to the breaches of the positive operational duty that were not identified by the PSD investigation may well emerge. For example, although the PSD report did not find that the officers wrongly failed to use section 136, it is possible after a fuller assessment of the evidence such a finding would be made. Any uncertainty in this regard should be resolved in the Claimant’s favour at this point. The same applies to any legal uncertainty, given the “developing jurisprudence” in this area: see [26] above.[215]For all these reasons, I conclude that the Coroner erred in finding that it was not arguable that the officers breached the positive operational duty.

Overall conclusion on Issue (4)

[216]Accordingly, for all these reasons, I conclude that the Coroner was wrong to find that the enhanced investigative dutyunder Article 2 was not engaged by reference to the positive operational duty. Ground (1) therefore succeeds.

Issue (5): Ground 2 – the Article 2 systems duty

[217]The Coroner concluded that there was “no evidence of any breach of the general/systemic duty under Article 2”: see [98] above. I observe that the Coroner did not use the word “arguably” in this part of his decision, which was again the appropriate the test for considering the Claimant’s arguments on the systems duty. He also gave no specific reasons for his conclusion on this issue.[218]However, the evidence before the Coroner made clear that the state generally, and the Chief Constable more specifically, had established systems, policies and procedures to enable concerns for the welfare of people such as Mr Farley to be responded to appropriately. These systems included collecting and recording relevant information, risk assessing, grading for officer attendance as necessary, divesting officers with powers such as under section 136 and enabling information-sharing with other agencies.[219]The Claimant’s arguments on the systems duty focussed on two issues.[220]First, reliance was placed on the fact that the three officers who were the subjects of the PSD investigation provided a cross-section of Merseyside Police: Student Officer Jones was still in her tutoring phase, PC McCoy was fully qualified but still in her probationary period and Sgt Saunderson was of senior rank with 14 years’ experience. Counsel for the Claimant argued that the evidence of all three officers displayed an ignorance of the purpose of the Triage Car and the urgent Professionals Line when the car was not available. This, he submitted, was credible evidence of an arguable breach of the systems duty.[221]However, in fairness to the Coroner, it is necessary to have regard to how matters were placed before him. This aspect of the Claimant’s position was limited to the assertion at [40] of his submissions to the effect that “[t] the individual failings of the three officers involved prior to the deceased’s death amount to credible evidence of wider failings within Merseyside Police”.[222]Without any further particularisation of this assertion, the Coroner was justified (assuming he did so) in finding that this did not generate an arguable breach of the systems duty: it had all the hallmarks of an assertion about individual lapses in applying systems which are capable of being operated in a way which would ensure a proper standard of care is provided, which is insufficient to engage the systems duty: see Maguire at [145]-[146], at [37] above.[223]Second, the Claimant relied on the fact that even with the benefit of hindsight Sgt Saunderson remains “unperturbed by the consequences of his inaction”. Reference was made to the sergeant’s statement where he maintained the view that he did not think he had misread the situation. The sergeant’s actions had had a particular significance because due to his seniority and the relative inexperience of the two constables, he provided them with erroneous reassurance in the manner highlighted by the PSD report. The Claimant contended that if the sergeant’s attitude and ignorance of the proper procedures were commonplace among officers of his seniority within Merseyside Police, that would at least arguably constitute a breach of the systems duty.[224]The difficulty with this submission is that it was, on its face, speculative: the use of the word “if” recognised that there was no clear evidence that the sergeant’s attitudes were shared by others and thus probative of an arguable breach of the systems duty. In those circumstances, the Coroner was justified (assuming he did) in finding that there was not a “real evidential basis which makes the suggestion of a breach of a substantive obligation by the state a credible one” as required: see Morahan at [75], at [19] above.[225]Accordingly, the Coroner was correct to find that the enhanced investigative duty under Article 2 was not engaged by reference to the systems duty. Ground 2 is therefore dismissed.

Issue (6): Ground 3 – the jury decision

[226]As noted at [13] above, under section 7(2)(b) of the CJA, an inquest must be held with a jury where the coroner has “reason to suspect…that the death resulted from an act or omission of…a police officer…in the purported execution of the officer’s…duty as such”.[227]The “reason to suspect” test was considered by the Divisional Court in R (Fullick) v HM Senior Coroner for Inner North London [2015] EWHC 3522 (Admin), [2015] Inquest LR 321 thus:
“34. In the first place it is well known that the ‘reason to suspect’ test has a low threshold and is objective in its nature… 36. ‘Reasonable suspicion’ has never been equated with prima facie proof. The latter consists of admissible evidence; the former can take into account matters that could not be put in evidence at all: Hussien v Chong Fook Kam [1970] AC 942, 949; see also Al Fayed v Commissioner of Metropolitan Police [2004] EWCA Civ 1679, [50]. ‘Reason to suspect’ does not require positive proof or even formulated evidence; any information giving ‘reason to suspect’ will suffice: R v Inner London Coroner, ex parte Linnane [1989] 1 WLR 395, 398... 39. In broad terms the question to be answered therefore is as follows: Could or should the police have done more? We do not presume to answer that question; we do not express a view one way or another about it. That will be a matter for the jury to consider in all the particular circumstances of this case, having heard the evidence and been properly directed by the coroner.”
[228]The Claimant contended that, for the same reasons as were advanced under Ground 1, the Coroner erred in failing to find that the “reason to suspect” threshold was met on the totality of the evidence before him. There is authority to the effect that a failure of the Coroner to summon a jury can only be challenged on conventional ‘Wednesbury’ grounds, such that this court should only intervene if no reasonable coroner could have refused to summon a jury: R v HM Coroner ex parte Wright [1996] 35 BMLR 57, 59 per Aldous LJ. On that basis, in truth, the Claimant’s case had to be that no reasonable Coroner could have found that the “reason to suspect” threshold was not met, based on the evidence.[229]The editors of Jervis on Coroners (15th Edition)at 10-42 make the thoughtful point that the mere fact that Article 2 is engaged (if it is) cannot make any difference to the decision with respect to the summoning of a jury, since “summoning a jury affects only the identity of the fact-finding tribunal, and not its function” and “[a]fter all, the civil law member states of the Council of Europe have to comply with Article 2, but none of them uses a jury to do so”.[230]In reaching his decision on the jury issue, the Coroner directed himself that the phrase “act or omission” should be interpreted as importing a requirement for some form of inappropriate act: [99] above. Such an interpretation could be said to be consistent with the legislative policy underlying the section, which is securing the scrutiny of agents of the state in appropriate cases by “a body of people who are and are perceived to be wholly independent of the State” and ensuring “public confidence in the outcome of the inquest…where the state, by its agents, may have had some responsibility for the death”: see, respectively, Shafi v HM Coroner for East London [2015] EWHC 2106 (Admin) at [60] and R (Paul and Ritz Hotel Limited) v Deputy Coroner for the Queen’s Household [2008] QB 172 at [46]. However, I am not aware of any authority supporting the placing of such a gloss on the statutory wording. Indeed, the use of the neutral phrase “some responsibility” in Paul would suggest otherwise.[231]Although the Coroner directed himself to the “reason to suspect” test, he again expressed his conclusions much more definitively, saying “On the evidence before the Court, it is my opinion that the death did not result from an act or omission of a Police Officer” and “…there is no Coronial Causation established linking events involving Police Officers on 11th April 2023 at Delamere Road Car Park to those events later on 11th April 2023 resulting in the death of Mr Farley” [my emphasis]. In determining the causation question he had directed himself to the balance of probabilities test: [99] above. These reasons strongly suggest that the Coroner applied a higher threshold than the “reason to suspect” test. They could also, again, give the Claimant the impression that the Coroner had pre-determined matters before any evidence had been heard.[232]In reaching his conclusion in respect of causation, the Coroner asked himself whether the “Event or Conduct in question” (by which I assume him to mean “the acts or omissions of the officers”) “more than: Minimally, Negligibly or Trivially contributed to the death”: [99] above. The Chief Constable submitted that this was also an error, and that the Coroner had applied too low a threshold. Rather, it was argued,(i) the words “resulted from” in section 7(2)(b) should be given their natural and ordinary meaning; and(ii) this meant that there needs to be a “direct causal connection” between the acts or omissions of an officer and the death.[233]Applying that approach, the Chief Constable initially adopted the position that there was no such direct causal connection here, because Mr Farley’s death solely “resulted from” his own actions in jumping from the roof of the car park. On that basis, any acts or omissions of the officers were irrelevant. Further, even if there had been acts or omissions of the officers which had caused the death, the actions of Mr Farley had broken the chain of causation.[234]The logical consequence of the Chief Constable’s position was that juries would never be summoned under section 7(2)(b) in cases of self-inflicted deaths. Rather, section 7(2)(b) would only apply in the very small number of cases in which a death has occurred as result of the direct act of a police officer, such as through restraint or the use of lethal force, or a car accident. It is hard to see how the “omission” part of the section would have effect at all, as noted at [237] below.[235]The Chief Constable’s position also did not sit easily with cases such as Reeves v Commissioner of Police for the Metropolis [2000] 1 AC 360 and Kirkham v Chief Constable of the Greater Manchester Police [1990] 2 QB 283. These establish that where a breach of the duty of care that those entrusted with the custody of prisoners have to take reasonable care for their safety while in custody has been established, the deceased’s act in taking their own life does not entitle the defendant to rely on the defences of novus actus interveniens or volenti non fit injuria.[236]After discussion during the hearing counsel for the Chief Constable withdrew the “chain of causation” submission and moderated her position. She contended that it was not the Chief Constable’s position that section 7(2)(b) could never apply in the case of a self-inflicted death, but it was all a matter of fact and degree. If, for example, officers had “taunted” Mr Farley on the roof and then he had jumped from it, the “resulted from” test might be met; but it was not met on the facts here.[237]In my view, albeit that it is not necessary for the determination of this claim, the narrow interpretation of “resulted from” which had initially been advanced by the Chief Constable was incorrect. Such an interpretation would fail to acknowledge that self-inflicted deaths can, and often do, “result from” both the actions of the deceased and the acts or omissions of the state. It would be contrary to the legislative policy underpinning the section described in Shafi and Paul and the reference in the latter case to a jury being required where there was reason to suspect the state had had “some responsibility” for the death. Such an interpretation would also mean that the word “omission” in the section was otiose, as it would be hard to conceive of a scenario where an officer’s omission had caused a death, when there was not another supervening cause, such as an untreated medical condition in a person with whom they had contact. The facts of Fullick illustrate this: there was reason to suspect that officers had failed to monitor the health condition of a witness in a police station properly, and it was held that a jury was required under section 7(2)(b).[238]Accordingly the Coroner was right not to dismiss the request that he summon a jury because Mr Farley’s death “resulted from” his own act. The Claimant did not criticise him for applying the “more than minimal” test to section 7(2)(b) and I can well understand why he did so.[239]Ultimately, though, I conclude that the Coroner erred in finding that the section 7(2)(b) test was not satisfied on the evidence before him. For the detailed reasons given under Ground 1, the totality of the evidence met the low, objective threshold of “reason to suspect” Mr Farley’s death resulted from the acts and omissions of the officers who attended the scene. In summary, the evidence, primarily in the Chief Constable’s own PSD report, revealed a series of acts or omissions by the officers which could have played a part in Mr Farley’s death. In accordance with Fullick at [39], in broad terms the question to be answered is “Could or should the police have done more?”. Here, the only rational conclusion on the evidence was that there was reason to suspect that they could or should have done.[240]Accordingly, the Coroner was wrong to conclude that section 7(2)(b) of the CJA was not satisfied such that there was no requirement to summons a jury. Ground 3 therefore succeeds.

Conclusion and relief

[241]Accordingly, for all these reasons, the Claimant’s claim succeeds on Grounds 1 and 3. I quash the Coroner’s decisions with respect to Article 2 and the summoning of a jury.[242]I grant the Claimant the declaratory relief he sees to the effect that the Coroner erred in finding that the enhanced investigative duty derived from Article 2 was not owed by reference to the positive operational duty; and in concluding that section 7(2)(b) did not apply, such that a jury is required.

Cited in 1 later judgment