The article 2 operational duty: Jonathan Dixey appeared in the Court of Appeal

17 March 2023

The Court of Appeal (Lewis, William Davis and Whipple LJJ) has today handed down judgment in Dove v HM Assistant Coroner for Teesside and Hartlepool [2023] EWCA Civ 289 in which the Court considered whether to order a fresh inquest into the death of Jodey Whiting. Ms Whiting died on 21 February 2017 as a result of an overdose of prescription medicine. On 7 February 2017, the Department for Work and Pensions had ceased payment of the Employment and Support Allowance which Ms Whiting had received.

At first instance the Divisional Court (Warby LJ, Farbey J and HHJ Teague KC, the Chief Coroner) dismissed the application for a fresh inquest under s.13 of the Coroners Act 1988. The appellant, Ms Whiting’s mother, challenged that decision on two grounds: (i) the Divisional Court was wrong to conclude that a fresh Jamieson inquest was not necessary or desirable because such an inquest should look at the question of a causal link between the actions of the DWP and Ms Whiting’s death; and (ii) the Divisional Court was wrong to conclude that Ms Whiting’s case does not give rise to an arguable breach of the article 2 operational duty and that a fresh Middleton inquest was not necessary or desirable because of that arguable breach.

The Court of Appeal concluded (Whipple LJ giving the leading judgment) that a fresh Jamieson inquest was desirable. It was in the interests of justice for a fresh inquest to take place so that Ms Whiting’s family could have the opportunity to invite a coroner at that fresh inquest to make a finding of fact as to whether the DWP’s actions contributed to Ms Whiting’s deteriorating mental health and, if that finding is made, to invite the coroner to include reference to that finding in the conclusion on how Ms Whiting’s came by her death within a record of inquest. Reflecting the way in which the appellant put her case, that inquest will not conduct an investigation of the DWP’s failings as these were well-established from a report by the Independent Case Examiner.

The Secretary of State for Work and Pensions adopted a neutral position on ground one of the appeal.

As to ground two, the Court accepted the submissions made on behalf of the Assistant Coroner and the Secretary of State. No article 2 operational duty was owed to Ms Whiting by the DWP. At [92], Whipple LJ held that “the requisite ingredients for the existence of an Article 2 operational duty are not present.  She was vulnerable, but not known by the Department or anyone else to be especially vulnerable at the time, no one appreciated that she might have been at immediate and real risk to her life, and she was not under the responsibility of the state at or prior to her death.  There was no operational duty in existence.”

Jonathan Dixey appeared on behalf of the Secretary of State for Work and Pensions.

The Divisional Court’s Judgment can be found here.

The Court of Appeal’s Judgment can be found here.

See press reporting: BBC; Metro; Guardian; Evening Standard.


Jonathan Dixey

Call 2007

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