Inquest Team E-Bulletin - May 2017

Legal Aid in Inquests

The issue of legal aid funding for bereaved family members at inquests has once again been brought into focus by the media in their coverage of the inquest into the death of Jeroen Ensink. The academic was stabbed to death outside his home by a man suffering from psychosis. At a PIR last month it was confirmed that this inquest would be an Article 2 inquest. His widow has reported being denied legal aid, despite the scope of the inquest covering issues about police, prosecutor and mental health authorities’ decisions and actions, and despite police and CPS having legal representation.

The issue falls within the Exceptional Case Funding provisions of Civil Legal Aid. The Lord Chancellor published revised guidance on 20 August 2015, to take account of the High Court’s decision in R (Letts) v the Lord Chancellor [2015] EWHC 402 (Admin). The previous guidance was found to be materially misleading and inaccurate in the absence of a clear recognition of the category of cases where the investigative duty arises quite irrespective of the existence of an arguable breach by the state of the right to life. The revised guidance can be found at:

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/454837/legal-aid-chancellor-inquests.pdf

It is apparent from reading this guidance that it confers a wide discretion to the Legal Aid Agency to grant funding, but also arguably presents a challenge to caseworkers attempting to apply it. There is a multiplicity of factors for the caseworker to consider as to whether the Article 2 procedural obligation is triggered, if this is not automatic. A Coroner’s expressed view is material but not determinative. If triggered, it is also necessary for a finding that funding for representation is necessary to discharge that procedural obligation. Alternatively there is provision for a “wider public interest determination”, from which flows a consideration of categories and subcategories of matters to be taken into account. Further, although the applicant needs to meet financial eligibility criteria, these can be waived if, “in all the circumstances, it would not be reasonable to expect the family to bear the full costs of legal assistance at the inquest”, which in turn depends on the weighing of a number of factors.

While it is not known what the basis for refusal of legal aid was in Mrs. Ensink-Teich’s particular case when the guidance still calls for a nuanced and qualitative judgment to be made, there is a potential for inconsistency of decision making in all but the most obvious of cases.  

The Chief Coroner, in his Annual Report to the Lord Chancellor 2015-2016, recommended that “the Lord Chancellor gives consideration to amending his Exceptional Funding Guidance (Inquests) so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons”.

Quite aside from issues of fairness, and equality of arms, this proposal would appear to have the merit of removing significant uncertainty for both the Legal Aid Agency, and bereaved families.

Kirsty Real

Practice Areas: 
Inquest