Leaving findings of fact to inquest juries in Article 2 cases
R (Bhupinder Iffat Rizvi) v HM Assistant Coroner for South London and others [2025] EWHC 3014 (Admin)
Introduction
In this case, the High Court considered the appropriate legal test for leaving findings of fact to juries in Article 2 inquests. Is it that such findings are arguable? Or is it that there is sufficient evidence to support them? The answer, quite firmly, is the latter.
Background facts
In the early hours of 20 March 2003, two gunmen fired shots into a car driven by Sabrina Rizvi, killing her and gravely injuring her boyfriend, Mark Williams. Shortly before the shooting, the two victims had attended Bexleyheath police station in south-east London, where Mr Williams had been arrested and bailed for the alleged theft of a car belonging to a local criminal, Paul Asbury. The attack had been orchestrated by Mr Asbury. In November 2004, he was convicted at trial of murdering Ms Rizvi and attempting to murder Mr Williams and sentenced to life imprisonment with a minimum term of 20 years. The two gunmen were never identified.
The inquest
An inquest into Ms Rizvi’s death was opened on 25 March 2003 and adjourned pending Mr Asbury’s trial. After the trial, Ms Rizvi’s family, including her mother Bhupinder Iffat Rizvi (‘Mrs Rizvi’), waged a long and ultimately successful campaign to resume the inquest into her death. In February 2019, the coroner ruled that the inquest would comply with Article 2 of the ECHR on the basis that it was arguable that the police may have failed to take reasonable measures to protect Ms Rizvi from a real and immediate risk to her life.
The inquest finally took place at the Old Bailey between 4 and 26 March 2024, before HHJ Angela Rafferty KC, sitting as an assistant coroner, (‘the Coroner’) and a jury. The witnesses included Mr Asbury, who accepted his guilt but refused to name the two gunmen, and the two police officers with whom Ms Rizvi and Mr Williams had interacted before they left the Bexleyheath police station.
Once the witness testimony had concluded on 21 March 2024, the Coroner invited the interested persons – the family, the Metropolitan Police Service, and the two police officers – to make submissions on the sufficiency of the evidence in respect of three key issues of fact:
- Whether the police deliberately notified Mr Asbury and/or others of the whereabouts of Mr Williams.
- Whether the police inadvertently notified Mr Asbury and/or others of the whereabouts of Mr Williams.
- Whether the police knew or ought to have known that an attack would or might take place and whether and what steps could or should have been taken to prevent it.
The Coroner delivered her written ruling on 25 March 2024. She determined that issues (1) and (2) could not properly be left to the jury and in respect of issue (3), she stated:
‘The evidence I have heard at this inquest is insufficient such that a properly directed jury could find that the police were or ought to have been aware of any immediate risk to Sabina Rizvi’s life from Paul Asbury, and there is insufficient evidence to support the suggestion that that the police were or ought to have been aware of such a risk from any quarter.’
‘There is insufficient evidence that there were steps the police could reasonably have been expected to take to prevent any risk to Sabina from materialising, and therefore there is no evidence that the police failed to take such steps.’
‘I do not in these circumstances consider it necessary or appropriate to make findings as to causation.’
Mrs Rizvi sought advice about the prospects of challenging the Coroner’s ruling but received negative advice from her counsel. On 26 March 2025, she applied for an adjournment to give her the opportunity to obtain a second opinion. The Coroner refused and later that day the jury returned a short-form conclusion of unlawful killing.
Application for judicial review
On 24 September 2024, six months after the inquest had concluded, Mrs Rizvi formally filed her application for permission to challenge the lawfulness of Coroner’s ruling on 25 March 2024 – on the grounds that she erred in law by:
- ‘determining the matters to be left to the jury based upon whether there was sufficient evidence that the substantive Article 2 ECHR duty had been breached rather than whether such a breach was arguable, and added an unnecessary and impermissible gloss to the threshold for assessing whether such a breach had occurred (or was arguable).’
- ‘eliding the question of whether there had been a breach of the substantive Article 2 duty with that of whether there was sufficient evidence that there were any acts or omissions by the police that were potentially causative of Sabina’s death which could safely be left to the jury.’
On 17 November 2025, the High Court (Foxton J) rejected Mrs Rizvi’s request to extend time to bring her claim[1] and dismissed her application on the basis that both grounds were unarguable.
Key principles in the ruling
In respect of Ground (1), the court affirmed the principle that juries should only be allowed to consider potential findings of fact that pass the Galbraith (or Galbraith-plus) test,[2] i.e. there is sufficient evidence to support them [80.1]. This principle applies equally to facts that arise in respect of Article 2 issues. For the purposes of an inquest’s conclusions, the arguability test – which determines whether an inquest should be Article 2 compliant – is therefore irrelevant [80.iii].
The court also noted that the threshold for a finding of ‘real and immediate’ risk has frequently been recognised by the courts as ‘high’ or ‘very high’ [81.i]. See a long line of authorities, including Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72, at [36], and Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50, [2009] 1 AC 225, at [30], [69], [115].
In respect of Ground (2), at [92] the court affirmed the principle that the test for causation is ‘whether, on the balance of probabilities, the conduct in question more than minimally, negligibly or trivially contributed to the death’, per R (Tainton) v HM Senior Coroner for Preston and West Lancashire [2016] EWHC 1396 (Admin), [2016] 4 WLR 157, at [41]; and that a coroner has a discretion, not an obligation, to leave to a jury causes of death that are merely possible and not probable, per Tainton at [42].
The court held that, having found that there were no acts or omissions by the police that satisfied the sufficiency test, the Coroner was right to conclude that there were no causation issues that should have been left to the jury [99]. The judge made the simple but important point that ‘Causation is not an issue which, in this context, could fairly or sensibly be approached in the abstract, but only by reference to acts or omissions alleged to be causative’ [99].
Conclusion
This judgment provides sensible clarification of the way in which different legal tests apply to Article 2 issues at different stages of coronial investigations and inquests: arguability during the process and sufficiency at the end. Practitioners must, though, bear in mind the longstanding prohibition on citing permission judgments in their cases.[3] Foxton J’s reasoning may help with your submissions, but it will not get you home.
[1] CPR 54.5(1) provides that the claim form in a judicial review ‘must be filed (a) promptly; and (b) in any event not later than three months after the ground to make the claim first arose.’
[2] See Chief Coroner’s Law Sheet No 2 ‘Galbraith Plus’.
[3] See the 2001 Practice Direction: Citation of Authorities.
