Air Pollution and Inquests – The Ella Kissi-Debrah Case

Background

In February 2014, Ella Kissi-Debrah suffered a fatal asthma attack after three years of seizures and 27 visits to hospital associated with asthma. An inquest at Southwark Crown Court, in 2014, concluded that her death was the result of respiratory failure and severe asthma. The question of whether severe, and indeed unlawful, levels of air pollution in the area she lived were causally linked to her death was not considered at that inquest. In 2018, Professor Stephen Holgate, an expert in asthma and air pollution, provided a report in which he noted a correlation between the dates of Ella’s hospital treatment and sharply elevated levels of nitrogen dioxide and PM10 particles (a form of pollutants consisting of metals and sulphates). In his expert opinion there was a real prospect that air pollution was a contributory factor in her death.

On 11 January 2019, the Attorney General acceded to the request of Ella Kissi-Debrah’s mother, supported by London Mayor Sadiq Khan, to allow her to apply to quash the result of an inquest into Ella’s death, and for a fresh inquest to be ordered on the basis that it was necessary or desirable in the interest of justice that another inquest be held because there was insufficiency of inquiry and/or discovery of new evidence. It was, however, upon the application made by AB (a child sibling of Ella) that the High Court quashed the inquest held on 26 September 2014 and directed a fresh investigation pursuant to Part 1 of the Coroners and Justice Act 2009.

The application referred to R (Client Earth) v Secretary of State for the Environment, Food and Rural Affairs [2013] UKSC 25, in which the Supreme Court explained that the statutory limit values for nitrogen dioxide and other harmful particulates, set out in the Air Quality Standards Regulations 2010 which transpose into domestic law European Directive 2008/50 EC, were imposed specifically to prevent deaths, and that the Government was in breach of its obligations to comply with Article 13 of the Directive. The Administrative Court has since reiterated that the Government must produce action plans which address the breach and reduce exposure as quickly as possible. The judgment was careful not to imply whether the Court considered Article 2 to have been engaged or not, as that is a matter for the respondent Coroner to deal with at the fresh inquest.

Obligations of the State under Article 2

The State has an obligation arising under Article 2 European Convention on Human Rights not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within their jurisdiction. The absence of any direct State responsibility for the death of an individual does not exclude the applicability of Article 2[1].

Positive obligations flowing from Article 2 should “be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities”. “Where there is an allegation that the authorities have violated their positive obligation to protect the right to life (…), it must be established to the [Court’s] satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”.[2]

In Kemaloglu v Turkey (2012) the applicant’s seven-year-old son froze to death while trying to walk back home from school when, due to a blizzard, it had closed early. The municipality shuttle did not come on time, and the Court held that although not every risk to life obliged the authorities to take operational measures to prevent that risk from materialising, in this case, by neglecting to inform the municipality shuttle service about the early closure of the school, the Turkish authorities had failed to take measures which might have avoided a risk to the child’s life and as such, breached their positive obligations under Article 2, right to life.

The State seems to accept that air quality is in breach of acceptable levels, and has launched what it refers to as a “world leading plan to tackle air pollution”, referring also to air pollution as one of the biggest threats to public health in the UK. Central Government has, however, delegated much of the task of cleaning up air pollution to Highways England, which is yet to provide both a plan as to how it will undertake this crucial task, and a time limit within which it will achieve safe levels of air quality.

Comment

It may be that in the case of Ella Kissi-Debrah, it can be argued that Article 2 is engaged on the basis that the United Kingdom was arguably in breach of its obligations arising from Article 13 of the Directive, and there is a causal link between poor air quality and fatal respiratory conditions. An argument as to real and immediate risk to health, and of fatal respiratory disease, may gain more traction now due to advances in research into air pollution and acceptance of the widespread health problems associated with unlawful levels of air pollution. The effect of poor air quality disproportionately affects children, who arguably deserve a higher level of safeguarding, as was apparent in the Court’s reasoning in the Kemaloglu case.

Ultimately, there are measures that could have been taken by the State to reduce air pollution, and that is why an air-quality plan is lawfully required. The absence of such a plan should not, on one view, be a barrier to a finding of a violation of Article 2, though that would not of course be a matter for the Coroner. The most the Coroner could do would be to ensure that relevant findings were recorded in a narrative conclusion, and to produce a Preventing Future Deaths report, perhaps requiring the relevant Government department to indicate what steps are to be taken to address this ongoing risk.

Anna Midgley
Charley Pattison

 

 

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