Families have no automatic right to legal aid at inquests where the state may be implicated and legal aid is means tested. Thus at many such hearings, the family fends for itself while culpable public bodies are represented at taxpayers’ expense.
In 2017, a series of independent reports called out this unfairness and demanded an extension of legal aid. The government consulted and families confided concerns that most inquest barristers will recognise:
‘It can seem as if the Government has unlimited lawyers at its disposal and that it takes advantage of this, leading to “inequality of arms” at inquests. There is also the perception that the focus of public bodies can be on minimising or denying what went wrong and handling reputational damage, rather than trying to get to the bottom of what happened.’
Final Report: Review of Legal Aid for Inquests (‘the Report’) was published in February 2019. It gave these concerns short shrift. The headlines are:
- Lawyers for public bodies are helpful, indispensable and will not be limited.
- Lawyers for families can behave badly and more are not required.
- The duty of candour is working well but we will tell public bodies about it again.
- There will no increase in legal aid.
Tied hands? Delawyering is rejected
‘Delawyering’ – reducing lawyers for public bodies, not eliminating them – was considered but rejected. (Do read paras 184-202 of the Report, ‘Making sure inquests remain inquisitorial’) This was because:
‘It must be right that, for example, police or prison officers have representation at inquests where there is the potential for their job to be at risk.’
Three points: In such a rare situation, the family’s need for equality of arms would be greater, not smaller, than it would be if the lack of care were not potentially gross. Without representation the family cannot be satisfied that any wrongdoing has been properly explored or the individual held to account. Second, the situation should not arise. In compliance with its duty to help the coroner to get to the truth, the employer ought to have concluded a comprehensive investigation, disclosed the report to the coroner and family, and taken any necessary disciplinary action long before the inquest commences. Finally, as the Report emphasises, coroners ‘do not apportion blame or determine either criminal or civil liability’. On the government’s own reasoning, inquests do not jeopardise jobs.
"Amazing how the barrister who appears for a public body one day can understand and assist the process, and yet undermine it and be inappropriate when she represents the family the next."
The Civil Service Management Code is a further impediment to ‘delawyering’. It contains ‘a commitment to provide staff called as a witness at an inquest with legal representation’ and thus, murmurs the government, ‘there is little that we can do to reduce the number of lawyers who represent public bodies at inquests’.
What is the plan?
The government’s plan is to neutralise the continuing unfairness for unrepresented families of unlimited lawyers for the state with… ‘a protocol of key principles’. Public bodies and their lawyers are to sign this and then, wand-like, it will ‘make sure that they assist the coroner in finding the truth of what happened’. Except that on its own, it won’t: only financial penalties for non-compliance could work such magic. And as if a protocol wasn’t enough, there’s more: clearer guidance on exceptional case funding, a simplified Guide to Coroner Services, new leaflets covering post-mortems and arrangements for viewing and returning bodies and possible leaflets on deaths in prison and mental hospital are all in prospect.
Why no more lawyers for families? Money would seem the obvious answer since the Report estimates that the cost of a level playing field would be a further £30-70 million. But the Report doesn’t go down that road, rather it goes in for barrister-blaming. The bad news is that in some inquests, particularly those in which an arm of the state may have been involved in the death, proceedings:
‘can become adversarial with inappropriate behaviour from lawyers’.
But the good news is that:
‘public bodies generally (the NHS, HMPPS etc) understand the inquisitorial nature of inquests, and that their lawyers’ main duty is to assist the coroner as much as possible’.
What is an inquisitorial style anyway?
Who are these inappropriate, unhelpful lawyers who don’t get that inquests are inquisitorial? Stand up anyone acting for families. Apparently, such has been the level of complaint by coroners to those gathering evidence for the Report, that the Ministry of Justice, Solicitors Regulation Authority and Bar Standards Board have decided to provide the judges with training on ‘the behaviour of counsel and generally controlling the courtroom’ and the inquest Bar is to be re-educated in the correct, inquisitorial advocacy style.
That is because of the feedback obtained during the Report’s review process:
‘When people raise concerns about inquests becoming more adversarial they mean that the approach adopted by lawyers representing those concerned with the death (known as ‘interested persons’) is more like that of the prosecution and defence in a criminal trial, which might be characterised as point-scoring – rather than assisting the coroner to get to the truth – and that this is having an adverse impact on bereaved families.’
Frustratingly, the inquisitorial style isn’t sketched out (although the use of appropriate language when dealing with vulnerable people is mentioned). The Report mentions an MOJ summer conference on the issue, which hasn’t yet materialised. Meanwhile we are left to ruminate. It can’t mean a style that is polite, appropriate and unoppressive because an advocacy style that fails to conform to that description is already unacceptable within an adversarial system.
Equally clearly, it can’t involve a prohibition on closed or leading questions: there are no parties at an inquest and it is the coroner, not the interested parties, who call the witnesses.
Whilst it’s all ‘questioning’ in an inquest (not examination and cross-examination) some inquests do require the coroner to determine which of two expert opinions to prefer and/or to resolve one or more central disputes of fact. And advocacy that, where necessary, enables the proper testing of disputed evidence is essential in a fair inquisitorial system.
The Report arrived at the fabulously Alice in Wonderland belief that at inquests, family barristers are so bad that it’s really, truly, deeply better for the bereaved not to have them at all. You see:
‘a significant extension of legal aid could have the unintended consequence of undermining the inquisitorial nature of the inquest system’ and ‘it could also reinforce the commonly held misconception that an inquest’s role is to apportion blame, as opposed to finding fact and learning lessons.’
Amazing how the barrister who appears for a public body one day can understand and assist the process, and yet undermine it and be inappropriate when she represents the family the next.
Whilst the Bar Standards Board confirms that it has been approached by the MOJ to consider how to ensure that barristers engaged in inquiries act appropriately and in line with the BSB Handbook, a BSB spokesperson told Counsel magazine: ‘We continue to encourage the MOJ to bring to our attention specific concerns that they, or the Chief Coroner have, and when those are received we will consider what appropriate regulatory action should be taken in the light of that information.’
"The Report arrived at the fabulously Alice in Wonderland belief that at inquests, family barristers are so bad that it’s really, truly, deeply better for the bereaved not to have them at all."
Were coroners’ complaints really about a very tiny handful of zealots who could start an argument in an empty courtroom, the Report should have said so and unnecessary training should not be funded. If there is a more widespread problem, then the Report should have asked why. If your client can’t get legal aid so you have to work pro bono or on a CFA, if – because of funding problems – you’re instructed late, and if you’re up against unlimited lawyers for state actors whose clients are not assisting with the truth-finding remit as much as they might, in front of a coroner who has set too narrow a scope and/or won’t call the witnesses the family wants to hear from or allow them an expert, and you know that the appeal mechanism is beyond your client’s reach because there’s no legal aid for judicial review either, you might just get a little testy.
A centralised coroner service
The Report is a missed opportunity to delawyer inquests and use the costs saved to fund equality of arms. One way would be a centralised coronial service and these requirements:
- Public bodies provide coroners with a public report, contributed to by the family and underpinned by statements from those involved, that states whether the death was avoidable and caused by any lack of care on the public body’s part.
- Where the report(s) identifies an avoidable death and all its causes, a brief inquest that does not reinvent the wheel.
- Where a fuller inquest uncovers facts and wrongdoing that should have been but were not identified by the report(s), the reporting of that failure and imposition of a financial penalty.
Meantime this is where inquests are at: lawyers for public servants, leaflets for the bereaved.
Katie Gollop is a QC at Serjeants’ Inn chambers specialising in healthcare law. Currently working on the Infected Blood Inquiry and best known for representing the hospital that treated Charlie Gard, she is regularly instructed in complex inquests and negligence claims.
See also ‘Legal aid funding at inquests’, Matthew Hill, Counsel, June 2019