High Court finds 'material errors' in Grayling's guidance on legal aid funding

The Lord Chancellor's guidance on legal aid funding for inquests holds material errors and the threshold for funding has been set too high, the High Court has announced.

R (Joanna Letts) v Lord Chancellor involved the death of Christopher Letts who, in August 2013 and at the age of 29, threw himself under a train at Tooting Bec station while mentally unwell.

The deceased's sister, Joanna Letts, applied for legal aid so as to be represented at the inquest hearing into her brother's death. However, legal aid was refused on the grounds that there did not appear to be any failings in the mental health services who are alleged to have allowed her brother to leave their care despite stating suicidal thoughts.

Ms Letts was informed by the Legal Aid Agency (LAA) that she could represent herself, even though she had no legal experience and is responsible for looking after her four children, and despite the fact that the five other parties, including the Cygnet, a private hospital in Kewstoke who had been caring for her brother, were all to be legally represented.

Only after judicial review proceedings were issued against the LAA, and the Lord Chancellor as an interested party, did the agency review its decision and agree to grant funding.

Mr Justice Green found that the duty to carry out an effective investigation in the form of the inquest when there has been a death in certain circumstances requires the involvement of the next of kin to ensure there is public scrutiny and accountability. The right to legal aid stems from this.

The Equality and Human Rights Commission were granted permission to intervene in the case due to its importance and supported Ms Lett's case.

Green J said that otherwise the right would be nugatory and the purpose of the article 2 of the European Convention on Human Rights, and to an investigation, would be thwarted.

Saimo Chahal QC (Hon), of Bindmans, who represented Joanna Letts, said: "It is very clear from this judgment, that once again, the Lord Chancellor has got it wrong! The court could not have spoken more clearly. The guidance leads to unlawful acts; permits unlawful acts and encourages unlawful acts.

"I am certain that this guidance has led to injustice for many bereaved families who have been deprived of representation and therefore accountability and scrutiny into the death of their loved one at a time when they needed help. Families have had to jump through hoops to get legal aid in inquest cases. I hope that this will no longer be the case."

Chahal continued that unless the Lord Chancellor agreed to change the guidance, Bindmans will seek an order for declaratory relief that the guidance is unlawful within the next 14 days.

Deborah Coles, co-director of INQUEST who made a witness statement in support of the claim added: "This is an important step forward in ensuring equality of access to justice for bereaved people.

"The government perpetuates the myth that inquests into deaths in state care or custody are informal hearings where grieving families can be expected to represent themselves, and yet these are complex inquests where they come face to face with state lawyers paid for by public funds, there to defend their policies and practices. We hope that this judgment results in less distress and a fairer process for bereaved people."

Commenting on the judgment, Ms Letts said: "This is a really fantastic result and I am so pleased that I have done something which will help other grieving families to get representation to secure accountability and to find the truth. I could not have hoped for more. I wanted to do this for my brother and others who have lost someone they loved dearly."

The full judgment can be found here.

John van der Luit-Drummond is legal reporter for Solicitors Journal