Air Quality - High Court Order for an inquest to be re-heard to consider impact of air pollution 

England, Wales

The findings of an inquest into the death of Ella Roberta Kissi-Debrah (“Ella”) have been quashed by the High Court and the matter has been listed to be heard a second time, now with consideration of air quality as a potential contributing factor.

During Ella’s inquest, a pathologist told the court that this was “one of the worst cases of asthma ever recorded in the UK” and the inquest concluded that Ella died due to a “severe asthma attack followed by a seizure, possibly caused by an allergic reaction to something in the air”. However since the conclusion of the inquest, Professor Stephen Holgate, an asthma management expert, has stated that Ella’s frequent hospital admissions were linked to the level of air pollution.

The maximum limits for the particulate content and make-up of air is set out in legislation. The EU 2008 Air Quality Directive delineates concentrations of major air pollutants such as particulate matter (PM10 and PM2.5) and nitrogen dioxide (NO2). As well as having direct effects, these pollutants can combine in the atmosphere to form ozone, which can be transported great distances by weather systems.

The 2008 directive replaced nearly all the previous EU air quality legislation and was made law in England through the Air Quality Standards Regulations 2010, which also incorporates the 4th air quality directive (2004/107/EC) setting targets for levels in air of certain toxic heavy metals and polycyclic aromatic hydrocarbons. Equivalent regulations exist in Scotland, Wales and Northern Ireland.

Separate legislation also exists for emissions of air pollutants with the main legislation being the UNECE Gothenburg Protocol which sets emission ceilings for SO2, NOX, NH3 and volatile organic compounds. Similar boundaries have since been set in European law under the 2001 National Emission Ceilings Directive (2001/81/EC), which was subsequently made into UK law as the National Emission Ceilings Regulations 2002, as well as the more generic provisions of the Environment Protection Act and Clean Air Act.

Further to these considerations, Ella’s family lodged an application for a new inquest, and in January 2019, the Attorney General Geoffrey Cox granted consent to the family to apply to the High Court for a fresh inquest into the death. In May 2019, the High Court quashed the initial findings and ordered a new inquest which will consider whether air pollution caused or contributed to Ella’s death, how air pollution levels were monitored and what steps were taken to reduce the pollution. At a pre-inquest review hearing in December 2019, the assistant coroner stated that:

air pollution would have to be regarded as a potentially dangerous activity …. the scope of the investigation needs to move on to look at the pollution issue….there is at least an arguable breach of both domestic and EU law, in that the pollution levels at the time of Ella’s death and before consistently exceeded statutory levels.

Ella’s death could result in the first ever case where an individual’s death has been shown to have been caused by levels of air pollution in the UK. The next hearing is due to take place on 8 April 2020.

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