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Recent High Court ruling will make it easier for bereaved families to obtain Legal Aid funding for inquests

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    A blog considering the present rules on obtaining public funding for representation at an Inquest and how a recent case will hopefully make it easier for families to obtain funding in the future.

    By Ali Cloak

The recent case of Joanna Letts v The Lord Chancellor has highlighted significant failings in the current funding rules relating to Legal Aid Exceptional Case Funding for inquests.  The High Court ruling will pave the way for increased access to public funding for inquests where the state is potentially involved in the circumstances leading to the death.

Background to public funding for Inquests

Public funding is not generally available for inquests as they are, at least in theory, a relatively informal inquisitorial process rather than being adversarial.  However, public funding can be available in specific circumstances such as where there is an arguable breach of the ‘right to life’ under Article II of the European Convention on Human Rights (ECHR), for example, where a state body is responsible for a person at the time of their death.  Examples include those where the deceased was in police custody, prison or receiving treatment in a psychiatric unit.

Exceptional Case Funding is a specific form of public funding which is available in circumstances where required by Article II ECHR or, more rarely, where there is a ‘wider public interest determination’ made in relation to a specific application.

The case of Letts v The Lord Chancellor

In 2013 Christopher Letts committed suicide within days of being released from a psychiatric unit where he had been receiving treatment in respect of suicidal thoughts and previous suicide attempts.

Christopher’s sister, Joanna Letts, sought public funding from the Legal Aid Agency (LAA) so that she could have proper legal representation in the inquest proceedings to investigate the circumstances of Christopher’s death.  Initially, the LAA refused her application for Exceptional case funding. Legal Aid was refused to Ms Letts on the basis that, according to the LAA, there did not appear to be any failings in the mental health services and so Art 2, the right to life, was not engaged

The Legal Aid Agency belatedly agreed to provide financial support to Ms Letts when she threatened judicial review, which is a formal type of appeal in which a Judge reviews the lawfulness of a decision made by a public body. Despite the funding being ultimately approved in her own case, Ms Letts opted to proceed with the judicial review process in order to clarify the position for other families who may find themselves in a similar situation seeking funding for representation at an Inquest.

Decision

In reviewing the Lord Chancellor’s current Exceptional Funding guidance, Mr Justice Green, found it to be inadequate and erroneous:

I have come to the conclusion that in all material respects the guidance is inadequate and both incorporates an error of law and, also, provides a materially misleading impression of what the law is.  I am satisfied that these errors could lead to erroneous decisions being taken by case workers within the LAA.”

“Would the guidance lead to unlawful acts, permit unlawful acts or encourage such unlawful acts?  In my view… the guidance would do all of these things.”

Mr Justice Green was scathing of the current guidance and he is due to hear further legal arguments on exactly how the LAA guidance should be altered to ensure appropriate access to justice in cases where the Article II ECHR ‘right to life’ is engaged.

My experience

As a solicitor who specialises in representing families in inquests, I am very glad that the current LAA guidance will be reviewed.  Whilst the true extent of the changes to the guidance are yet to be determined, it is hoped that more bereaved families will have access to funding in these types of inquests, allowing them opportunity to hold the state agencies to account where appropriate.

The current position is grossly unfair and leaves many families without proper legal representation in inquest proceedings after the death of a loved one. Such inquests are of utmost importance, both to the family of the deceased and potentially to the public at large where a state body is implicated in the death.  The state usually has access to legal representation at the Inquest and therefore it seems only just that families should have equal representation.

Deborah Coles, Co-Director of charity Inquest, sums the position up clearly:

The government perpetuates the myth that inquests into death 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 practises.  We hope that this judgment results in less distress and a fairer process for families.”

Inquest lawyers now eagerly await confirmation of the changes which will be made to the guidance.  In the meantime, should you have any questions at all about legal representation at an inquest then please get in touch.

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