Funding for inquests: giving families a voice
Non means-tested legal aid funding for inquests would encourage safer practices as well as allow families to be represented, argues Alice Stevens
Legal aid for inquests is not within the scope of the Legal Aid, Sentencing and Punishment of Offenders Act 2013.
Instead, bereaved families rely on a separate pot of money, Exceptional Case Funding (ECF), for public funding and representation at an inquest.
Between June and September 2018 there were 745 applications for ECF, only 65 per cent of which were granted. Of these 745 applications, 16 per cent related to inquests. That’s just 77 applications for inquests for which ECF was granted.
Taken in the context of the 229,700 deaths reported to coroners for inquests in 2017 that number suddenly seems very small.
When the strict criteria for ECF are not met, families often struggle to scrape together funds from savings, relying on lawyers acting pro bono or even resorting to crowdfunding. Those able to secure funding are then thrown into a process which is alien to most lawyers.
Meanwhile, public authorities, ranging from police to the prison service and NHS Trusts, are guaranteed funding for experienced lawyers, at the taxpayer’s expense.
Perhaps the most complex aspects of inquest law relates to the engagement of article 2 of the European Convention on Human Rights. The engagement of article 2 results in a Middleton inquest being held as opposed to a Jamieson inquest.
Middleton inquests significantly increase the scope of an inquest allowing coroners to explore the circumstances of someone’s, whereas a Jamieson inquest only allows the coroner to ascertain how someone died.
Often failures surrounding a death fall way out of the ‘how’ scope, which results in a short form conclusion detailing the means through which someone came about their death, for example ‘Suicide’.
I was instructed on a case in which the coroner intended to hold a one-day, Jamieson inquest. The team, including counsel, made detailed submissions that this was a case in which article 2 should be engaged.
The coroner agreed, widened the scope of the inquest to look at the six months prior to the death and significantly lengthened the inquest.
The resulting conclusion was highly critical and dealt with issues far beyond those that could have been touched on had the inquest remained a Jamieson inquest.
As well as providing this family with answers, the inquest served a further purpose of recognising practices which were potentially risking lives of other people, recommending changes which could save lives.
The coroner made a detailed Prevention of Future Death (PFD) report outlining his ongoing concerns about the particular NHS trust’s practices.
This may not have happened had the family not sought legal representation, which was funded by ECF.
This case cannot have been a one-off. Out of the 229,700 deaths mentioned above, I wonder how many of these result in one-day Jamieson inquests when a Middleton inquest would have been more appropriate.
It is clearly not in the interests of other Interested Persons to raise arguments in favour article 2 being engaged or raise continuing concerns within their own organisation, risking a PFD report and a rise in their insurance premiums.
While coroners have a duty to investigate a death, they must remain impartial or open themselves up to a legal challenge. They cannot represent families’ interests in the same way that an experienced legal team can.
With ECF being reasonably rare, and most families not being able to afford their own representation, the risk is that deaths are not always being properly investigated.
Families’ questions are remaining unanswered; PFD reports are remaining unwritten. This is deeply concerning.
This year, following numerous reviews of legal aid for bereaved families, the Ministry of Justice finally published its own review.
Lawyers and families hoped that the review would recommend non-means tested ECF for families where public authorities are also involved in inquests. It didn’t.
The charity INQUEST recently launched a new campaign: ‘Now or Never! Legal Aid for Inquests’ calling for families to receive non-means tested ECF.
The campaign is critical in helping families get a voice at their loved one’s inquests and is in the interests of continuing public safety.
Alice Stevens is a solicitor at Broudie Jackson Canter broudiejacksoncanter.co.uk