Levelling up: public funding for inquest representation

When our justice system enquires into the cause of death of a loved one, what should we expect? Surely a system that is decent and even-handed, supportive of the bereaved and cognisant of their emotional state and vulnerabilities. Where the death is suspicious and the state itself is implicated, the investigation must be scrupulously fair and seen to be so - but that is not always the case in our coroners’ courts today.

The problem

Where the state has questions to answer at an inquest – maybe where someone has died in the custody of the police, or in prison, or detained under the Mental Health Act 1983 – it will inevitably instruct lawyers to represent its interests, all paid by the taxpayer. Often the only party in the room without representation will be the deceased’s family, unless they have private means to fund their own legal team, have managed to persuade a lawyer to act pro bono, or have crowdfunded their way to court. Legal aid is rarely available. Regrettably, this means the bereaved are more often left without professional representation at inquests, on the wrong end of an imbalance of power, resources and support, forced to take part on a playing field in desperate need of levelling.

The simple solution

The solution is for legal aid to be made available for all inquests where the state is an interested party and is legally represented. This should cover not only the actual advocacy at the inquest, but also legal advice from the date of death and all work preparatory to the inquest itself. It is unlikely the cost to the taxpayer will be crippling – and while these cases attract much media attention, they are not statistically significant – probably only around 1 per cent of all coroners’ cases. Figures for 2020 show 31,991 inquests were opened that year, and 562 deaths in state custody were reported – not all of them by any means will have been suspicious. 239 inquests with juries were held (mandatory in cases of non-natural deaths in state custody).

Legal aid now

Legal aid is technically available to help families now, but is rarely granted and this needs to change. To satisfy the Legal Aid Agency on the merits of an application, the bereaved need to show that their case falls within its “exceptional case funding” rules. Generally, a family will need to show:

(1)   there are human rights issues at stake with the coroner having ruled Article 2 of the European Convention on Human Rights (the right to life) may have been breached; or

(2)   there is a wider public interest in the issues being examined at the inquest.

Article 2 declarations are uncommon and (in any event) inconsistently applied by coroners. Many inquests where the state is represented are not deemed to engage Article 2, which means no legal aid funding for the family. Examples include deaths in custody related to health care received by the deceased; suicides by patients of mental health care trusts in the community, or where a trust has refused to admit the patient; and deaths in supported accommodation or care settings arranged by a local authority (including those with learning disabilities).

Wider public interest is not defined, but there is clearly much discretion involved – and grants of legal aid on that ground alone are as rare as hen’s teeth. The families of the bereaved in the Hillsborough disaster managed to obtain legal aid on this basis – but only after some high-profile campaigning work with the help of the national media. In January this year, two former prime ministers, Theresa May and Gordon Brown, added their voice to a campaign for a Hillsborough law, to ensure that the families of those killed in ‘public tragedies’ should always have a professional to advocate for them, paid for by the state. The families of those who tragically died in the Grenfell Tower fire and the Manchester Arena bombings would similarly benefit from such a law. The truth is, if your loved one did not die in a national disaster or tragedy, the likelihood of getting public funding is currently slim indeed.

High profile support for change

High profile public inquiries have been recommending wider access to legal aid for the bereaved for years in such circumstances, ever since Sir William Macpherson’s inquiry into the death of Stephen Lawrence in 1999. More recently, this call has been repeated in Dame Angiolini’s death in custody review, the concluding report of the Bach Commission and Bishop James Jones’ review of the Hillsborough disaster, all published in 2017. In May last year, the Justice Select Committee urged the government to extend legal aid to cover non means-tested legal representation wherever a state actor is deemed an interested party and is itself represented. The government responded by agreeing to do away with means testing (from 12^th January 2022) but retain the merits test – which is fiendishly difficult to meet. Whilst the government’s measure is to be applauded, it only goes so far.

 “Justice must not only be done but must be seen to be done”

So said Lord Hewart, LCJ, giving first voice in 1923 to one of the most quoted lines from any court judgment anywhere. The government needs to pay heed. It argues the coronial court embarks on an inquisitorial rather than an adversarial exercise in search of the truth and therefore professional legal representation is unnecessary. This provokes the response then why is it, in every case with which the charity INQUEST has ever been involved, government departments or agencies always turn up to inquests tooled up with lawyers. Even if the government is right, it is not a good look when the only party without a professional advocate is the one representing the interests of the person who actually died.

Making sure we learn from our mistakes

To succeed in anything (we are told) we must learn from our mistakes, otherwise we run the risk of making the same mistakes again and again. Inquests are an amazing opportunity to learn lessons after the ultimate failure – someone’s death. Allowing families legal aid to pay for professional support, ensures their presence in the coroners’ courts is an effective counterbalance to the state, more likely to be achieved and redress this bias in the system (perceived or otherwise). Regrettably in January, MPs voted against an amendment to the Judicial Review and Courts Bill which would have given effect to this change. As the Bill now progresses to the House of Lords, lobbying for reform will continue – watch this space. 

Jonathan Wheeler is managing partner with Bolt Burdon Kemp: boltburdonkemp.co.uk