Article 2 Inquests: Thorough Scrutiny Without Merits Re-hearing; Bennett as Context Not a Separate Test

1. Introduction

Nugent, Application for Judicial Review (Re a Decision by the Coroner) [2026] NICA 16 is a Northern Ireland Court of Appeal decision dismissing an appeal from the refusal of leave to judicially review an Article 2-compliant inquest conclusion on the use of lethal force by a state agent.

The appellant (the deceased’s daughter) challenged limited parts of a lengthy reserved ruling delivered by Humphreys J sitting as a coroner, following an inquest into the 1991 shooting of the deceased (the driver of a vehicle used by a PIRA active service unit). The focus of the challenge was narrow: the justification for Soldier B firing eight aimed shots over approximately one to two seconds, one of which the coroner found fatally struck the deceased.

The High Court (King’s Bench Division, Judicial Review) refused leave after a rolled-up hearing ([2025] NIKB 54). The appeal questioned (i) the standard of review at the leave stage in an Article 2 case and (ii) whether the coroner’s reasoning was arguably unlawful/irrational, including by reference to Bennett v UK Application 5527/08 and the military “Yellow Card” rules of engagement.

Key issues before the Court of Appeal

  • Whether the High Court applied the correct intensity of review (thorough scrutiny in an Article 2 context, but not a merits appeal).
  • Whether it was arguable that the coroner misapplied Article 2 (“absolute necessity”), especially for a highly trained specialist soldier.
  • Whether it was arguable that the coroner failed to engage with (or gave inadequate reasons on) the Yellow Card and the justification for shooting the unarmed driver.
  • Whether it was arguable that the coroner unlawfully treated the soldiers’ actions collectively rather than assessing Soldier B individually.

2. Summary of the Judgment

The Court of Appeal (Keegan LCJ, Colton LJ and Fowler J) dismissed the appeal and upheld the refusal of leave. The court held that:

  • On a fair reading, the High Court did apply sufficiently “thorough scrutiny” appropriate to Article 2, notwithstanding some imprecise language in the leave judgment.
  • The coroner applied the correct legal tests and reached a rational, adequately reasoned conclusion that the use of force was justified.
  • Bennett v UK Application 5527/08 does not create a distinct substantive legal test for trained firearms officers; it emphasises rigorous examination and treats training as contextual to necessity/proportionality and investigative adequacy.
  • The Yellow Card is relevant but not determinative; even if there were non-compliance, it would not itself decide Article 2 legality or self-defence.
  • The coroner did not impermissibly conflate the four soldiers’ actions; he made specific findings about Soldier B while recognising a single rapidly unfolding threat.

The court added that, having reviewed the key evidence, even if leave had been granted it would have dismissed the claim on the merits.

3. Analysis

3.1 Precedents cited and how they shaped the decision

(a) Neutrality/participation of coroners in judicial review: Re Darley, Jordan, Maguire

  • Re Darley [1997] NI 384, Jordan [2014] NICA 36 and Maguire v HM Senior Coroner for Blackpool and Fylde [2023] UKSC 20 were relied on to explain why the Coroners Service attended but did not actively participate on appeal. The contradicted position was advanced instead by Soldier B and the Ministry of Defence.

(b) Article 2 “absolute necessity”, self-defence symmetry, and the anti-hindsight lens: McCann and Armani Da Silva

  • McCann v United Kingdom [1996] 21 EHRR 97 underpinned the court’s insistence that necessity and proportionality must be assessed from the perspective of the state agent faced with an imminent threat, not with hindsight.
  • The coroner’s approach was said to align with Armani Da Silva and R (Duggan) v North London Assistant Deputy Coroner [2017] EWCA Civ 142, reinforcing the “in-the-moment” assessment and resisting “freeze-frame” reconstructions.
  • The Court of Appeal treated any attempted distinction between “absolute necessity” (ECHR language) and domestic reasonableness in self-defence as resolved by Armani Da Silva v United Kingdom [2016] 63 EHRR 12: “absolute necessity” operates as a proportionality-based reasonableness standard, not a separate, stricter domestic rule in application.

(c) The claimed “specialist training” uplift: Bennett v UK

  • The appellant’s central doctrinal submission was that Bennett v UK Application 5527/08 requires an enhanced substantive standard for trained firearms officers and that the coroner/judge failed to apply it.
  • The Court of Appeal rejected that reading: it extracted from Bennett that (i) the State must provide a “satisfactory and convincing explanation” for lethal force and (ii) training, planning and control are relevant contextual factors, but Bennett does not establish a distinct legal test beyond the established framework from McCann and Armani Da Silva.
  • Training was treated as relevant context, not an additional legal hurdle requiring separate articulation. The High Court had noted Soldier B’s training and the Court of Appeal considered the coroner to have addressed training in a dedicated portion of the findings.

(d) Standards of review and restraint in disturbing fact-finding: Re DB and inapplicability of Shvidler and Dalston

  • Re DB [2017] UKSC 7 was cited for caution against appellate/reviewing courts unsettling primary factual findings, particularly those based on oral evidence. The Court of Appeal accepted that “respect” is owed but emphasised that respect does not remove the duty of “thorough scrutiny” where Article 2 is engaged.
  • The appellant relied on Shvidler and Dalston [2025] UKSC 30, but the Court of Appeal held it misplaced because that case concerned Article 8 proportionality balancing, whereas the instant case concerned public law challenge to factual findings on justified force (and alleged substantive Article 2 breach), not a fresh proportionality merits balance by the reviewing court.

(e) Shot-by-shot necessity: Re Jordan’s Application

  • The judicial review claim sought a declaration that the coroner failed to decide whether each shot was “unavoidably necessary” relying on Re Jordan's Application [2014] NICA 76 at [66].
  • On appeal, the appellant did not pursue a strict “each shot individually” requirement; the Court of Appeal nonetheless endorsed the coroner/judge rejection of “freeze-frame” analysis, recognising the operational reality of a one-to-two-second firing sequence.

3.2 Legal reasoning

(a) What “thorough scrutiny” meant here (and what it did not)

The Court of Appeal accepted that the leave judgment used multiple labels (“anxious scrutiny”, “supervisory”, “putting myself in the decision-maker’s shoes”), which risked obscuring the correct approach. But it held, viewed overall, the High Court did what Article 2 demands: careful examination of whether the coroner’s justification findings were arguably flawed in law, irrational, or inadequately reasoned—without converting judicial review into a merits rehearing.

Importantly, the Court of Appeal itself reviewed the evidence (including transcripts) and concluded there was no arguable public law error and no substantive Article 2 breach.

(b) “Absolute necessity” and domestic self-defence: no semantic trap

The appellant argued the coroner did not expressly deploy the phrase “absolute necessity”. The Court of Appeal treated this as immaterial: the coroner set out and applied the established two-limb self-defence framework (honest belief and objective reasonableness/proportionality), and the Article 2 standard is symmetrical with domestic law as explained by Armani Da Silva v United Kingdom [2016] 63 EHRR 12.

(c) Bennett: training matters, but it is not a separate legal test

The court drew a clear line between (i) using training and instructions to test the plausibility and sufficiency of the State’s explanation and to scrutinise planning/control and (ii) creating a distinct threshold test for trained officers. On the court’s reading, Bennett supports the former, not the latter.

(d) Collective threat and the “unarmed driver”

The core factual/legal complaint was that the deceased was unarmed and driving away, so lethal force was not necessary. The Court of Appeal held it was open to the coroner to find that Soldier B could treat the occupants as a single operational unit posing an ongoing lethal threat in a seconds-long encounter (including to the undercover soldier, to the arrest team arriving, and to the cover team). The court described as “absurd” an attempt to disaggregate the driver from the armed passengers in the circumstances of an imminent murder attempt.

The court also noted that the appellant did not, in substance, dispute Soldier B’s honest belief; the dispute was about objective justification. The coroner had made objective findings too (not merely accepting a subjective account).

(e) Yellow Card: relevant guide, not determinative law

The court treated the Yellow Card as an operational guide rather than a legal code. The operative legality question remained whether the soldier honestly and reasonably believed lethal force was necessary and proportionate to avert an imminent threat to life. Even if an argument of non-compliance existed, it would not, without more, establish unlawfulness under Article 2 or domestic self-defence principles.

3.3 Impact

(a) Legacy inquests and judicial review boundaries

The decision reinforces a practical boundary in Northern Ireland legacy litigation: even under Article 2, judicial review is not a general right of appeal on the merits from a coroner’s fact-finding. Review courts must be thorough, but will be slow to disturb carefully reasoned findings made after extensive oral evidence, absent a demonstrable public law error (misdirection, irrationality, or inadequate reasons).

(b) Training arguments after Bennett

The judgment is likely to be cited to resist submissions that specialist training generates a freestanding heightened legal test. Training remains highly relevant, but as context within the established necessity/proportionality inquiry and the requirement for a convincing state explanation—not as a separate doctrinal gateway.

(c) Yellow Card arguments

Future challenges based on the Yellow Card are likely to be framed more carefully: the decision supports treating it as evidentially relevant to reasonableness and planning, but not as a determinative legal checklist. The court’s approach may narrow attempts to convert alleged operational-policy noncompliance into automatic Article 2 unlawfulness.

(d) “Freeze-frame” critiques

The judgment endorses resistance to “slow motion” evaluation of split-second uses of force. While not denying that specific features (like number of shots) can be relevant, the court signalled that analysis must reflect the reality of rapid decision-making in lethal-threat contexts.

4. Complex Concepts Simplified

  • Article 2-compliant inquest: An inquest that meets the European Convention’s procedural duty to investigate a death involving state force—requiring independence, adequacy, public scrutiny, and involvement of next of kin; and, where relevant, findings capable of addressing whether force was justified.
  • “Absolute necessity” (Article 2(2)): Not a demand for perfect decision-making. It asks whether lethal force was strictly required and proportionate to avert an imminent threat to life, judged in light of what the officer/soldier honestly and reasonably believed at the time.
  • Anxious/thorough scrutiny: A heightened intensity of review where fundamental rights are engaged. It is still judicial review: the court tests legality/rationality/adequacy of reasons rather than re-deciding the facts from scratch.
  • Rolled-up hearing: A procedure where the court considers both permission (leave) and, if granted, the substantive claim in one combined process.
  • Yellow Card: Military rules of engagement guidance. It can inform what was reasonable and what training required, but it is not itself the legal test for self-defence or Article 2 justification.
  • “Freeze-frame” analysis: Criticised by the courts as judging rapidly unfolding events as if the decision-maker had time for calm, sequential evaluation; the law generally avoids this hindsight distortion.

5. Conclusion

[2026] NICA 16 confirms that, even in an Article 2 inquest context, the judicial review court’s role is rigorous but not appellate: it must scrutinise for public law error, not re-try justification on the merits. The Court of Appeal also clarifies that Bennett v UK Application 5527/08 does not create a distinct substantive “trained officer” test; rather, training is a contextual factor within the established necessity/proportionality assessment and the requirement for a convincing explanation. Finally, the decision treats the Yellow Card as relevant but non-determinative and affirms that, in a split-second lethal-threat incident, it can be lawful to assess threat collectively where a coordinated armed operation is underway.