There must be equality of arms in inquests

The recent coverage of the Birmingham bombings inquest and the families’ struggles for legal representation has continued the welcome attention the Hillsborough inquest brought to this heated issue.

At a recent pre-inquest hearing, the chief coroner, Peter Thornton QC, repeated his calls for families to receive legal aid funding for legal representation at inquests. This follows the news that West Midlands Police has set aside £1m for inquest legal costs, after South Yorkshire Police’s Hillsborough inquest bill topped £25.1m.

Why must families struggle to obtain funding when generous budgets are provided to public bodies without scrutiny? When the national media is not paying attention, what hope does a family have of obtaining legal aid for a ‘standard’ inquest?

The current rules on legal aid funding for inquests have criteria for ‘exceptional cases’ only – where there is a human rights issue, or a wider public interest in the inquest. Recent media coverage has helped achieve legal aid funding for families under the latter criteria. It is very difficult for families attending a ‘standard’ inquest, such as a death in hospital, to obtain funding, despite the issues being no less complex and involving the same procedures. In cases where there is a human rights issue, wider public interest, or a death in state detention, the excellent services of the charity INQUEST can be called upon. However, it is the silent majority of families involved in the 32,000 inquests a year that suffer.

The reason for this imbalance is explained by the government’s guidance on legal aid for inquests, which advises that ‘funding for representation at an inquest is not generally available because an inquest is a relatively informal inquisitorial process, rather than an adversarial one’.

Take the example of a death in hospital. At an inquest, the NHS trust will usually have legal representation. Individual staff members will also often have legal representation provided via their indemnifiers if they have been asked to give evidence. Discussion and questioning can become very technical, especially with a medically qualified coroner. ‘Relatively informal’ and ‘inquisitorial rather than adversarial’ is not how many families would describe the process. The position often taken by professional interested persons is one of defence, as opposed to assistance – although an extreme example, the position taken by the police in the Hillsborough inquests was considerably adversarial. Public professionals should not attend inquests, legally represented at public expense, just to defend their policies and actions.

The position is clear. Either all parties are provided with legal aid, or no one is. Public funds should not be limited purely to large professional bodies which should arguably manage their own training and support for staff attending inquests without the need for representation.

The most basic legal principle of equality of arms is not being met in our coroners’ courts, and more must be done to protect families and bring public body budgets to account.

Tom Gough is a solicitor at Bolt Burdon Kemp