This paper was originally presented at a seminar in Chambers in February 2006.
“The scope of the Article 2/3 investigative obligation, and its jurisprudential basis, has recently received attention from both the High Court and the Court of Appeal in a number of cases, most particularly, in R(LD) v. Secretary of State for the Home Department  EWHC 728 Admin (Munby J; heard in the Court of Appeal in January) Takoushis v. HM Coronor for Inner London  EWCA Civ 1440, Plymouth CC v. HM Coroner for Devon  EWHC 1014 Admin (Wilson J) and in R(JL) v. Secretary of State for the Home Department (permission granted in February, substantive hearing to take place probably in May).
The obligation itself has been recognised as arising since the decision of the ECtHR in McCann. However, there is still a great deal of uncertainty surrounding the application of the investigative obligation. In particular, as to:
Whether it is a freestanding substantive or procedural obligation, or simply a means of identifying substantive breaches of Article 2;
When the obligation to investigate arises – in particular, is it necessary, before the investigative obligation arises show an arguable breach of Article 2?
What the obligation requires – in particular, is it necessary to have a public hearing along the lines of, at minimum, an inquest as interpreted in Middleton, in every case…”