A very useful article appeared in the Law Society Gazette on Monday 17 May 2010 by Azmina Gulamhusein
The charitable organisation INQUEST has criticised the current inquest system because ‘there is no equity of arms in terms of legal funding’. While public or commercial bodies involved in an inquest invariably have legal representation, bereaved families can only obtain funding from the Legal Services Commission (that means legal aid) to cover advocacy at the hearing in exceptional cases. This leads to an unfair disparity between the parties, which was highlighted in the recent case of R (on the application of Humberstone) v Legal Services Commission.
Although the Coroners and Justice Act 2009 will extend the future scope of public funding, it does not introduce any automatic right to non-means tested legal aid for families as proposed by INQUEST. The Ministry of Justice has just announced that the families of those killed in the London bombings will now be granted funding for representation at the inquests and the means test will be waived due to the exceptional circumstances. This decision was made following complaints about the LSC’s lengthy application process and ‘intrusive’ financial assessment forms.
The funding rules
If they satisfy the financial and other eligibility criteria, bereaved families can obtain funding under the ‘Legal Help’ scheme to cover the initial preparatory work for an inquest, but this excludes advocacy services at inquest proceedings from the general legal aid scheme. The government’s justification is that an inquest is a relatively informal and inquisitorial rather than adversarial process. Its purpose is to establish how the deceased died and not to decide questions of civil or criminal liability. Yet, the practical effect of the public funding rules is that grieving families may qualify for initial assistance, but be left without legal representation during the actual proceedings when they are in most need of support.
With effect from 1 November 2001, the Lord Chancellor issued an Authorisation to bring representation at limited categories of inquests within the scope of public funding. If requested to do so by the LSC, the Lord Chancellor can also authorise the commission to fund representation in individual cases. The Funding Code sets out the following alternative grounds of granting this ‘exceptional funding’ on an individual basis:
• There is a significant wider public interest in the applicant being legally represented at the inquest; or
• Funded representation for the family of the deceased is likely to be necessary to enable the Coroner to carry out an effective investigation into the death, as required by article 2 of the European Convention on Human Rights (the right to life).
These tests are very difficult to satisfy. According to statistics published by the Legal Services Commission, 45 out of 52 exceptional funding applications relating to ‘out-of-scope inquests’ decided in 2008/09 were unsuccessful.
In the Humberstone case in April 2010, the High Court decided a judicial review application relating to a refusal to grant exceptional funding for representation at an inquest. R (on the application of Humberstone) v Legal Services Commission involved a claimant whose 10-year-old son died in hospital after suffering an asthma attack. Following her son’s death, the claimant was arrested on suspicion of gross negligence manslaughter due to concerns that she may have failed to supervise his asthma medication properly. In the event, no charges were brought against the claimant but the local coroner decided to hold an inquest into the circumstances of her son’s death.
The claimant applied to the LSC for exceptional funding to cover legal representation at the inquest. Her application was accompanied by a letter in support from the Coroner. When the LSC refused the claimant’s initial application for funding, the Coroner wrote a further letter emphasising that she was ‘effectively facing an enquiry at the inquest into whether or not her actions or failures led to the death of her child’. He also expressed the following serious concerns:
• Although the coroner would try to assist someone in the claimant’s position, his role was not to represent her interests and he could not advise her on what to say to avoid self-incrimination.
• The inquest was estimated to last for five days and causation was a major issue. It was therefore likely to involve ‘nuances of technical medical information’ that the claimant would struggle to understand.
• There was an apparent inequality of arms because the ambulance service, hospital authority and individual doctors and nurses involved were all legally represented (some or all at public expense).
In spite of the Coroner’s forceful arguments, the LSC maintained its refusal to recommend the claimant’s case for exceptional funding. This was on the basis that article 2 of the European Convention on Human Rights was not engaged or, even if it was, the coroner could carry out an effective investigation into the child’s death without the claimant being granted public funding. The claimant applied for a judicial review of the LSC’s decision. Judicial review is an application to a Court complaining that a public body has not exercised its discretion correctly. It is not a complaint about the decision, it is a complaint that the decision was not made within the law.
The High Court allowed the claimant’s application for judicial review and quashed the LSC’s decision not to recommend her case for exceptional funding. Although there was as yet no real evidence of any wrongdoing on the part of the medical professionals that could amount to more than simple negligence, the Court held that article 2 of the European Convention on Human Rights was engaged. It was clear from case law that the state may have a duty to hold an investigation into a death (or support a mechanism for an investigation), even if there is no reason to believe that state agents have breached their primary duty under article 2 to preserve life.
The Funding Code lists some factors that must be taken into account, but each case ultimately depends on its own particular facts and the following additional guidance should be considered:
• Although one factor may be determinative in a specific case, it is not correct or lawful to make a particular factor (such as the complexity of the law or facts) determinative in all cases.
• The coroner’s own views about whether he can carry out an effective investigation into a death without a particular interested party being represented is a matter for special consideration. These views are not binding on the LSC, but it can only rationally reject them if there are cogent reasons for doing so.
• One factor that is not relevant to a funding decision is the absence of (or restrictions on) available public funds.
• The LSC has a wide discretion when recommending cases for exceptional funding, but it must adopt a lawful approach to the decision and properly take all material considerations into account.
Having outlined the above guidelines, the High Court applied them to the facts of the case. It ruled that the LSC had – contrary to the Funding Code – failed to have proper regard to the nature and seriousness of the allegations faced by the claimant at the inquest. The Funding Code also requires the LSC to consider whether a bereaved family can participate in an inquest without funded legal representation. In this case, the claimant was a woman of ‘limited faculties and experience’, who was suffering from depression exacerbated by her son’s death. The coroner had listed specific difficulties that would arise if she was not legally represented. In all the circumstances, the LSC’s funding decision was therefore unlawful.
So the case was successful, but only after a very long and upsetting fight.
The Coroners and Justice Act 2009 received royal assent on 12 November 2009 and sets out some much-needed future reforms to the funding system. As from a future date to be appointed, means-tested public funding will be extended to cover advocacy at inquests into the deaths of:
• persons who die while in state custody;
• persons who die in the course of arrest or other action by the police; and
• military service personnel who die while on active service.
Although the LSC has welcomed the ‘clearer framework’ to be introduced by the Coroners and Justice Act 2009, there are concerns about whether its provisions are extensive enough to overcome the weaknesses in the funding process.
While the Coroners and Justice Act 2009 will improve access to justice in specific categories of inquests, a problem with ‘equality of arms’ will remain in other cases. For example, if an individual is killed during an accident in the workplace, the employer is likely to have expensive legal representation at the inquest funded by its insurers. By contrast, the deceased’s family may be forced to attend the inquest involving upsetting evidence from the pathologist and complex technical details about workplace machinery without any representation. The new act does not contain any measures to improve this type of situation, which would heighten the distress of a family already at their most vulnerable and may lead to health and safety issues not being fully explored. Until the government provides wider access to funded representation at inquests and ensures that the parties are in an equal position, it cannot achieve the objective of placing bereaved families at the heart of the coroner system.