Air Pollution & the Right to Life

Air Pollution & the Right to Life

We’re delighted to publish this ‘guest blog’ by Lucie Boase, a paralegal working with Jocelyn Cockburn, a partner at Hodge Jones & Allen, who is instructed by Rosamund Kissi-Debrah, the mother of Ella Kissi-Debrah. Although these sad events happened in London, air pollution is a concern for young people in Wales, and this case could have a big impact for everyone in the UK.

Our right to life is protected in law in the UK by Article 2 of the Human Rights Act (HRA) 1998, which implements the European Convention on Human Rights (ECHR) 1953. It means that nobody, including the Government, can try to end your life, and it also means that the Government should take appropriate measures to safeguard life by making laws to protect you and, in some circumstances, by taking steps to protect you if your life is at risk.

Ella Kissi-Debrah had the right to life. She grew up in South London, and died in 2013 from asthma when she was just 9 years old. She was born healthy and was an active, happy child who loved to swim, skateboard and play football with her friends. She dreamt of becoming a pilot. When she was 6 she developed asthma, and as she grew older her health rapidly declined. Sometimes it got so bad that she would stop breathing and have seizures. She was admitted to hospital 27 times over a three-year period with life-threatening asthma, including three times spent in intensive care. On 15th February 2013, she suffered a severe asthma attack and died in hospital.

Her family’s lawyers argue that the UK Government knew of the risk that air pollution posed in particular to vulnerable children such as Ella who suffered from severe asthma. They have obtained evidence to show that the Government failed to put in place measures to protect Ella from unlawful levels of air pollution which might have saved her life. The legal team also argue that the UK Government has a legal duty to investigate this matter by reopening the inquest into her death to see whether unlawful levels of air pollution did contribute to Ella’s death.

What is air pollution?

An air pollutant is any substance in the air that could harm people. There are many pollutants in the air, and some are more harmful than others. Particulate matter, nitrogen dioxide (NO2) and ozone are particularly damaging types of air pollution, and high concentrations can be found in most UK towns and cities, where sources of pollution such as road traffic are more concentrated.

Poor air quality is thought to be behind 40,000 early deaths each year. In Improving Air Quality, a report for the House of Commons which was published in 2018, it was said that ‘Poor air quality has been classed as the largest environmental risk to public health in the UK, and was described by the World Health Organisation as “a public health emergency.”’. Under Article 24 of the United Nations Convention on the Rights of the Child, every child has the right to the best possible health, but across 86% of the UK, children are breathing in harmful levels of toxic air, which can harm their lungs, damage the development of their brains and stunt their growth.

Under European Union law, the UK is obliged to keep levels of NO2 under certain limits, and these limits were imposed explicitly to prevent deaths. In a case heard in 2013, the UK Supreme Court declared that the Government was in breach of its obligations to comply with air pollution limit values provided for in article 13 of the European Directive 2008/50/EC, which was implemented into UK law by the Air Quality (Standards) Regulations 2010. It is estimated that around 80% of nitrogen dioxide emissions at sites exceeding the EU limit values come from transport.

Inquest into Ella’s death

When somebody dies and their death is considered to have been unnatural, violent or occurred as a result of an unknown cause, a court hearing called an inquest is held to investigate the cause of their death. An inquest is heard by a Coroner, whose role it is to determine who the deceased was, and how, when and where they came by their death. Ella’s inquest was held at a Coroners Court on 26th September 2014, and evidence about the medical cause of her death was heard from the doctors who cared for Ella and treated her at hospital. The Coroner concluded that Ella’s death was due to a severe asthma attack followed by a seizure, which was possibly caused by an allergic reaction to something in the air.

But Ella’s mum, Rosamund, still had questions. No one could explain what had caused Ella’s asthma attacks and why they couldn’t be controlled or prevented. Rosamund started to wonder whether the polluted air that Ella had been breathing had worsened her health and ultimately led to her death. Ella’s family live very close to one of the busiest roads in London, and Ella would travel to and from school and her various after-school clubs along the road. There are two air pollution monitoring stations for nitrogen dioxide and ozone near to Ella’s family’s house, and data published for the period between 1st January 2010 and Ella’s death on 15th February 2013 showed that levels of air pollution consistently breached the legal limits.

Application for a new inquest

There are only very limited circumstances in which an inquest which has already been held can be re-opened and the original findings overturned.

Under s.13(1) of the Coroners Act 1988, an application for a new inquest can be made if new facts or evidence is discovered which make it necessary or desirable in the interests of justice for another investigation to be held. In this case the legal team set about gathering evidence about levels of pollution to which Ella would have been exposed. They also instructed Professor Stephen Holgate, a medical expert in asthma and air pollution to analyse Ella’s medical records. His findings, detailed in a report, were startling: he found there to be a ‘striking association’ between Ella’s hospital admissions and spikes in air pollution levels, and concluded that there was a real prospect that without unlawful levels of air pollution, Ella would not have died.

The legal team set about seeking the permission of the Attorney General, Geoffrey Cox, (who is the chief legal adviser to the Crown) to apply for another inquest into Ella’s death. In January 2019, after receiving the Attorney General’s permission, the legal team made an application to the High Court to quash the first inquest and order a fresh inquest into her death.

A hearing is listed in the High Court in May 2019, at which it is anticipated that the court will announce its decision.

What is the significance of a new inquest?

It is now the decision of the High Court as to whether a new inquest can be held. Ella’s family are hopeful that the High Court will decide that it would be in the interests of justice for this to happen. If the application is successful, a new inquest will be held into Ella’s death. This would mean investigating whether unlawful air pollution contributed to Ella’s asthma or death, and also whether the authorities bore some responsibility for her death by failing to protect Ella from air pollution. An argument will be made that article 2 of the Human Rights Act (the ‘right to life’) applies, and therefore that the investigation should be broad enough in scope to look not just at the medical cause of death but to examine the impact of air pollution more broadly.

To our knowledge air pollution has never been investigated in an inquest and it could result in a legal first: air pollution appearing on a British death certificate – Ella’s – and action being taken to clean up our air, to ensure that what happened to Ella doesn’t happen to another child.

 

Since this blog was first published, the High Court have granted a new inquest into Ella’s death, to enable evidence that unlawful levels of pollution near Ella’s home contributed to the asthma attack which killed her. Three judges sitting in the High Court on 2nd May 2019 ruled that the conclusions of the inquest held in 2014 into Ella’s death should be quashed, and that it was necessary in the interests of justice for a fresh inquest to be held. Ella’s legal team had argued that the new evidence they had obtained demonstrated that there was an “arguable failure” by the UK Government to comply with its duties under Article 2 of the European Convention on Human Rights to protect Ella’s right to life. A new inquest will now take place into Ella’s death, and we will bring you further news of this in due course

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