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Mother wins battle over legal aid at inquest

14 April 2010

The mother of a boy who died from asthma at the age of 10 has won a High Court battle for legal aid to pay for a lawyer at his inquest.

Claire Humberstone was arrested on suspicion of manslaughter days after the death of Dante Kumara in July 2008. No charges were ever brought.

She applied to the LSC in February the following year for legal aid so she could be represented at the inquest.

Decisions over the grant of legal aid at inquests are taken by the Lord Chancellor, but depend on a positive recommendation from the LSC. The LSC rejected her application.

Delivering judgment in R(on the application of Humberstone) v LSC and HM Coroner for South Yorkshire [2010] EWHC 760 (Admin), Mr Justice Hickinbottom said Humberstone suffered from a “long-standing depressive illness”, made worse by the death of her son.

He went on: “Although she was not in the event charged, one can reasonably assume that the police would not have arrested her in the circumstances unless they had some reasonable grounds for considering that she might have been responsible for her own son’s death through gross negligence.

“Those grounds apparently emanated from concerns expressed by Dante’s medical practitioners about the level of his mother’s historic care in relation to his asthma medication.”

Hickinbottom J said Article 2 of the ECHR (right to life) was engaged by the case and the state was under a duty to ensure there was an effective investigation into Dante’s death.

The judge said that the coroner for South Yorkshire (West), Christopher Dorries, was the author of a standard textbook on coroners’ law and procedure.

Counsel for the LSC admitted that if the coroner had said he could not conduct an effective investigation into the death unless Humberstone was represented, the funding recommendation might have been different.

Hickinbottom J said that in a letter in March 2009 the coroner said far more than merely it would assist the inquest if Humberstone was represented.

“He sets out specific difficulties that would follow from Miss Humberstone not being represented, and gives reasoned examples. In my view, that letter is a very courteous but very firm indication that the coroner’s view is that an effective investigation cannot be conducted unless Miss Humberstone is represented.

“That is underscored, perhaps, by the fact that the inquest has been stalled whilst the funding issue has been finally determined. The Commission have not sought to adduce any evidence from the coroner to contradict the view that appears clear from the face of his letter.”

Mr Justice Hickinbottom allowed the judicial review and quashed the LSC’s decision not to recommend Humberstone’s funding application to the Lord Chancellor.

The judge gave the parties three weeks to make submissions or agree on a draft order to follow the judgment.

A Legal Services Commission spokesman said that, to avoid further delays to the inquest, it was now recommending that Humberstone should receive legal aid.

“Legal aid for advocacy at an inquest is not normally available because of the informality of the process in coroners’ courts,” a spokesman said.

“This, together with the inquisitorial nature of the inquest process, means that funding for legal representation is not usually necessary. However, funding can be granted on a case-by-case basis subject to strict tests.

“In this case we considered that the tests were not met. Having considered the court’s judgment we are now recommending that funding is granted because we do not want to delay the inquest any further.”

However, the spokesman said the LSC was considering whether to appeal “as the guidelines laid down may have implications for other cases.”

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