This is the twelfth in the new series of blogs which will start with relevant extracts from the Bach Commission’s Final Report. These will be followed by the more detailed treatment I gave to the topic in one of the chapters in Appendix 5 to the Report.

I wrote the papers in this Appendix because I was keen not to lose the opportunity to provide in-depth treatment of important issues for which there would clearly be no room in the report itself.

The Queen’s Speech contained this announcement about the availability of representation at an inquest following a “public disaster”:

“To support victims, my government will take forward measures to introduce an independent public advocate, who will act for bereaved families after a public disaster and support them at public inquests.”

At the launch of the Report in Brighton two weeks ago, Deborah Coles, of INQUEST, criticised the Commission for not addressing the means-testing which the Legal Aid Agency is entitled to carry out when considering whether to grant legal representation.  Although this did not feature among the “bullet point” recommendations, I forgot that the Commission had in fact addressed this issue in the text of its report at page 33 when it accepted what INQUEST had asked for.

INQUEST’s Written Evidence has been published on the Commission’s website. It said:

In R (Amin) v Secretary of State for the Home Department, Lord Bingham laid out the purpose and requirements of an Article 2 compliant investigation and inquest process:

“…to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrong-doing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”

In our experience, and that of the families with whom we work, that stated purpose of the investigation and inquest process is defeated in the absence of specialist legal advice, assistance and representation for bereaved families to enable their effective participation. In this context, our key concern is that the relevant public funding arrangements – in the form of exceptional funding for inquests under section 10 of LASPO – is simply not fit for purpose. In particular, the current means assessment system is intrusive, distressing and alienating for families, to the extent that some families remain unrepresented despite being financially eligible or withdraw from the inquest process altogether. This is in direct contrast to the multi party representation afforded the state and its agents, often from public funds. The result is that public confidence in the justice system is undermined.

The current system is also not cost effective for the MoJ because extensive resources are deployed to conduct means assessment, usually of multiple family members per death, yet virtually no cases are refused on the basis of financial ineligibility due to the discretion to apply a waiver (see further below).

We would therefore urge upon the Commission the need for non means tested public funding for legal representation for families at inquests into deaths in custody or state detention, or deaths that engage Article 2 of the European Convention on Human Rights.

 

 

 

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1. EXTRACTS FROM THE REPORT

Inquests: The commission has heard that there are frequent occasions at inquests where the government funds legal representation for individuals or agencies of the state, but not for the family of the deceased. As the chief coroner wrote in his 2015-2016 annual report:

“In some cases one or more agencies of the state such as the police, the prison service and ambulance service, may be separately represented. Individual agents of the state such as police officers or prison officers may also be separately represented in the same case. While all of these individuals and agencies may be legally represented with funding from the state, the state may provide no funding for representation for the family.”

The chief coroner went on to write that this imbalance means, in some instances, “the inequality of arms may be unfair or may appear to be unfair to the family” and should therefore be resolved. The commission recommends that in cases where the state is funding one or more of the other parties at an inquest, it should also provide legal aid for representation of the family of the deceased.

…..

We have also heard evidence about applications to the ECF scheme for representation for bereaved families. In assessing an application, the LAA is required to carry out intrusive means-testing of members of the deceased’s family. Yet a 2015 Freedom of Information Act response disclosed that no applications for exceptional case funding to pay for representation at inquests were rejected on the basis of financial eligibility. The commission recommends that this blanket requirement for means-testing members of the deceased’s family for exceptional case funding is removed.

 

2. APPENDIX 5 TO THE REPORT

CHAPTER 8: Exceptional Case Funding (Inquests)

Introduction

In his second annual report (for 2014-5) the Chief Coroner said that although about 230,000 deaths are reported to coroners across England and Wales each year, most of them are signed off by coroners as a death from natural causes, and only about 25,000 cases proceeded to an investigation and inquest, with juries being summoned in 397 of them.

In contrast to the position for non-inquest cases, Legal Help has always remained in scope for inquest cases.[1]   This means that if otherwise qualified and if it is appropriate to seek legal advice, the family of the deceased can receive Legal Help for all the preparatory work associated with an inquest. This may include preparing written submissions to the coroner, and suggesting questions for the coroner to ask witnesses.   Funding is also available for the family to ask a MacKenzie Friend to attend the inquest, and to offer informal advice (if the coroner permits it).

Legal representation, however, in the sense of retaining an advocate to represent the family at the inquest, is “out of scope”, and the statistics in the table below refer to the success (or otherwise) of applications for legal representation at the inquest. Nobody suggests that legal representation is required by a family at every inquest. Because ECHR Article 2 is so influential in inquest cases, the success rate for Exceptional Case funding (ECF) grants in these cases has always been higher than for non-inquest cases.

The first four years of post-LASPO [2] statistics provide these figures:

	Applications	Grants	Success rate   %
2013-14	201	54	26.9
2014-15	225	110	48.9
2015-16	240	163	67.9
2016-17	283	145	51.2
Total	949	472	49.7

The improved success rate in the third year no doubt has much to do with the decision of Mr Justice Green in February 2015 in the case of Letts[3] and the subsequent redrafting of relevant parts of the Lord Chancellor’s Guidance to caseworkers which was issued in August 2015.

In addition to the general provisions about ECF that are contained in sub-sections 10(1) – (3) of LASPO, sub-sections (4) to (6) contain provisions that are specific to inquests. In short, the LAA may make a “wider public interest determination” in relation to the applicant family member and the inquest.  This means

“a determination that, in the particular circumstances of the case, the provision of advocacy under this Part for the [applicant] for the purpose of the inquest is likely to produce significant benefit for a class of person other than the [applicant and the members of his/her family.”

In addition, the LAA is currently obliged to conduct intrusive inquiries in every case into the means of members of the deceased’s family, although it has a discretion to grant waivers.[4] A recent Freedom of Information Act request from INQUEST elicited the information that for the year up to September 2015 no applications were refused by the LAA on the basis of financial eligibility.  It would be very good if this blanket requirement could be reconsidered, because intrusive inquiries of this kind by a bureaucratic agency so soon after a bereavement are to be avoided whenever possible.

In the Lord Chancellor’s Guidance to caseworkers it is suggested that in the context of an inquest the most likely public benefits are the identification of dangerous practice, systemic failings or other findings that identify significant risks to the life, health or safety of other persons.

The meaning of the systemic and operational duties in ECHR Article 2

It was, however, the interpretation of the requirements of ECHR Article 2 (“Everyone’s right to life shall be protected by law”) that was central in the case of Letts, and this turned on the right of the Letts family to receive an “exceptional case determination” under section 10(2) of LASPO (because otherwise there would be a breach of that article).

In a judgment that is a model of clarity Mr Justice Green explained that Article 2 imposed two substantive obligations on states:

“(i) a duty to set up systems of laws in individual cases which are designed to protect life; and

(ii) a duty in individual cases not to be complicit in the taking of life.”

The first of these duties is called “the systemic duty” and the other “the operational duty”.

He went on to say:

“The duty which lies at the core of this dispute is the duty to investigate a death which arises, or might arise, as a consequence of a breach of one or other of the substantive duties referred to above. This duty of inquiry or investigation is sometimes termed the ‘procedural duty’. Because it arises as a consequence of a violation or possible violation of the substantive obligations it is derivative or parasitic in nature. However, as I set out below, it has nonetheless been accepted as being of very great importance in any democratic society and its secondary character is by no means a reflection of indication of secondary importance.”

In his original Guidance the Lord Chancellor made the mistake of thinking that caseworkers would have to identify an arguable breach of one or other of the substantive duties before any question could arise that the state was under a relevant procedural duty in relation to the inquest. Mr Justice Green said that this was wrong, because there are some categories of case in which the mere fact of death gives rise to a possibility of State responsibility, and this suffices to trigger the Article 2 procedural duty automatically.

The revised post-Letts Guidance reflects this part of his judgment. It states that:

The case-law in this area is complex and developing but indicates that the categories in which the Article 2 procedural duty will be automatically triggered include at least:

All intentional killings by state agents (e.g. a police shooting);

All violent deaths and suicides of persons detained in police or prison custody or during the course of arrest or search; and

All violent deaths and suicides of persons detained in mental hospitals.[5]

The Guidance goes on to explain that where the “procedural obligation” does arise, an investigation is needed which satisfies these five criteria:

• The inquiry must be on the initiative of the State, and it must be independent;
• It must be capable of leading to a determination of whether any force used was justified, and to the identification and punishment of those responsible for the death;[6]
• It must be prompt and proceed with reasonable expedition;
• It must be open to public scrutiny to a degree sufficient to ensure accountability; and
• The next of kin of the deceased must be involved in the inquiry to the extent necessary to safeguard their legitimate interests.[7]

Guidance is then given about the circumstances in which funded representation might be necessary to discharge the procedural obligation.

It seems likely that ECF funding was refused in 2015-2016 in those cases where LAA caseworkers decided that these criteria would be satisfied without the family having to be represented by an advocate at the inquest. Unfortunately, although the LAA’s statistical bulletins record how quickly (or slowly) their caseworkers took their decisions, they say nothing about the types of reasons why funding was refused (or whether it was only granted following a review or, perhaps, as a result of the threat or institution of judicial review proceedings), so we are left to guess what the reasons might have been. Greater clarity on issues like this in the LAA’s future reports and bulletins would be very helpful in promoting a constructive dialogue between the LAA and legal aid providers which does not always seem to exist everywhere at present.

The current pressure for the most generous approach

There is currently a very strong feeling that public funding for advocacy for the deceased’s family should be available in a class of complex inquest in which the “big battalions” are all represented at public expense while the deceased’s family are denied such funding.

This problem re-surfaced recently in relation to the inquest into the death of seven-year old Zane Ghangbola. He died in 2014 after falling ill during floods at his home. The official view was that he had died from carbon monoxide poisoning caused by a petrol-driven pump in the family home.[8] His parents believed, however, that he had died after inhaling cyanide gas which had leaked into their home from a nearby landfill site, and they also relied in this regard on the fact that his father was paralysed from the waist down, a fact that a doctor attributed to cyanide gas.  Although the Environment Agency, the local council and a local NHS hospital trust had each engaged publicly funded barristers, and the coroner had instructed counsel to the inquest, an application for a fixed sum of £70,000 ECF funding was denied to the family, who were eventually only represented by a Q.C. at the inquest following a crowd-funding appeal which raised over £70,000.

The inquest verdict concluded that Zane had indeed died of carbon monoxide poisoning. There can, however, be little doubt that the presence of their own Q.C. gave the family a confidence that their worries were being properly aired at the inquest in a way that would not have occurred if they had been unrepresented spectators.

It is no doubt cases like this which encouraged the Chief Coroner to say in his latest annual report[9] that:

In a small number of inquests the family of the deceased is unable to obtain legal aid funding for representation at the inquest, despite individuals or agencies of the state being funded for legal representation as ‘interested persons’. In some cases one or more agencies of the state such as the police, the prison service and ambulance service, may be separately represented. Individual agents of the state such as police officers or prison officers may also be separately represented in the same case. While all of these individuals and agencies may be legally represented with funding from the state, the state may provide no funding for representation for the family.

Many less complex or contentious inquests are conducted entirely satisfactorily in the absence of legal representation for interested persons, including some cases involving the state. But in some cases the inequality of arms may be unfair or may appear to be unfair to the family. It may also mean that the coroner has to give special assistance to the family which may itself give the appearance of being unfair to others.

The Chief Coroner therefore recommends that the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance (Inquests) so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons.the Lord Chancellor should consider amending her ECF guidance so as to provide legal representation for a family where the state has agreed to provide representation for one or more of the other parties to the inquest. In other words, these are cases where justice demands equality of arms.

Before the recent General Election the then Shadow Home Secretary, Andy Burnham MP, sought amendments to the law to make it more likely that representation would be granted in more cases, but his efforts were successfully resisted when put to the vote.

 

 

[1] See LASPO Schedule 1, Para 41(1).

[2] The Legal Aid, Sentencing and Punishment of Offenders Act 2012.

[3] R (Letts) v Lord Chancellor [2015] EWHC 402 (Admin). Accessed September 2017: http://www.bailii.org/ew/cases/EWHC/Admin/2015/402.html The deceased Christopher Letts had recently been discharged from a psychiatric hospital where he was a voluntary in-patient when he committed suicide by throwing himself under a train. Although his family was granted legal aid following an admission of liability at the start of the judicial review proceedings, Mr Justice Green nevertheless went on to consider the appropriateness of the text of the Lord Chancellor’s Guidance in Inquest cases and held that it misstated the law in certain relevant respects.

[4] In contrast funeral grants are automatically awarded to anyone in receipt of income-related benefits without any means inquiry. In one of my last judgments, Stewart v Secretary of State for Work & Pensions [2011] EWCA Civ 907, Accessed September 2017: http://www.bailii.org/ew/cases/EWCA/Civ/2011/907.html I quoted an extract in a 1985 Government White Paper which said: “The Government accepts that it will be important to handle this part of the fund with a minimum of detailed investigation into personal circumstances at a distressing time for the person seeking help. We believe this is best done through making clear that receipt of any of the main income-related benefits – income support, family credit and housing benefit – will qualify someone for help. This avoids a separate assessment of income. It also means that more people, not less, will be able to get proper help with the costs of a funeral.” The LAA itself is not obliged to conduct a means inquiry in relation to public law care and supervision proceedings in relation to children, to child abduction cases, or to certain cases under the Mental Health Act and the Mental Capacity Act, cases where similar sensitivities arise.

[5] It added: “In Letts it was said that the suicide of a voluntary psychiatric patient is also capable (depending on the facts) of automatically triggering the Article 2 procedural duty. However, the precise circumstances in which the suicide of a voluntary psychiatric patient will automatically trigger the procedural duty are presently unclear, so caseworkers should have regard to any relevant case law that emerges.”

[6] These criteria were set out by the European Court of Human Rights in a case that related to the shooting by police of a young unarmed man in Belfast in 1992.

[7] Where there has not been a previous investigation, or where the family has not played an active role in a previous investigation, the inquest may be the only investigation the State conducts into the death where the family is involved to the extent necessary to safeguard their legitimate interests.

[8] At the inquest the pathologist who conducted the post mortem on Jade said that there was no evidence of cyanide poisoning.

[9] Report of the Chief Coroner to the Lord Chancellor. (2016) Third Annual Report (2015-16).  Accessed September 2017. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/550959/chief-coroner-report.pdf .