Legal aid funding at inquests

In 1999, the Report of the Stephen Lawrence Inquiry recommended that ‘consideration be given to the provision of legal aid to victims and to the families of victims to cover representation at an inquest in appropriate cases’. Twenty years later legal aid provision for families at inquests remains ‘extremely limited’, to use the neutral terms employed in a recent House of Commons Library briefing paper.

In February 2019, the Ministry of Justice rejected the calls of a diverse and authoritative coalition to extend non-means tested legal aid provision to families in inquests where the state is legally represented. It did, however, express a desire ‘to explore further options for the funding of legal support’ at such inquests, and pledged to ‘work closely with other government departments’ on this matter. Consideration, it appears, is still ongoing after two decades.

The MOJ’s Final Report on Review of Legal Aid for Inquests (CP 39) reveals two essential reasons for rejecting proposals that had gained support from, among others, Dame Elish Angiolini, Lord Bach, Bishop James Jones, the Parliamentary Joint Committee on Human Rights, the Independent Office for Police Conduct and (although expressed in terms of proposing ‘consideration’ rather than adoption), both Chief Coroners to have held the post. One is cost: an estimated £30 to £70 million per annum. The second is the effect on the inquisitorial nature of coronial proceedings.

Little is left in the legal aid pot

The first argument has more to it. Inquest lawyers recognise how little is left in the legal aid pot. Criminal and family practitioners no doubt feel that their areas are in greater need of any available additional funds. Of course it would be better if the overall budget were increased so that there was no zero-sum game to play, but that is not within the gift of the MOJ alone. Seen in this light, the search for ‘further options’ with ‘other government departments’ may be read as a tacit acceptance that the proposals have merit, so long as someone else pays.

It has been suggested that those public authorities that appear at inquests should fund, in advance, representation for the families in the same proceedings. There are fundamental problems with this. It would impinge on the independence of the family representation. There is no obvious answer as to who should pay if there is more than one state body. Such an approach may have the unintended consequence of leaving employees unsupported at a hearing because their employers want to avoid legal costs. Most worryingly, any link between failures found and funding awarded would fundamentally undermine the inquisitorial nature of the process. Inquests are neither intended nor equipped to be proxy civil trials.

An unwelcome adversarial approach?

That leads on to the MOJ’s second argument: that more family representation is not required in an inquisitorial system and may lead to an unwelcome injection of adversarial advocacy. Instinctively, the world has sympathy for the notion that there is no question to which ‘more lawyers’ is a good answer. On this occasion, such sympathy is at least partially misplaced. Families do not choose to have inquests; the state requires them, at a time when grieving relatives may be in a state of acute vulnerability.

Legal representatives can help families to understand a sometimes arcane process, and advise them of what can – and, critically, what cannot – be achieved through it. They can act as a guide through complex and extensive disclosure, help to understand and focus concerns, and test and challenge evidence in court on their client’s behalf. A coroner alone, no matter how competent and dedicated, cannot replicate all of these roles. If done well, family representation enhances the process and maintains public confidence in it. The latter point is of great importance in an age of increasing and corrosive mistrust of established institutions.

That is not to say that more lawyers will inevitably lead to better inquests. The MOJ report is right to emphasise the need for legal representatives to adopt a different approach to inquests than that taken in adversarial litigation. This is true on both sides of the fence. Yet it fails to identify that the current funding situation accentuates the adversarial. Families are only likely to get funded representation if solicitors go on to bring a successful civil claim, or if they can show an arguable breach of Article 2 of the European Convention on Human Rights. As a result, inquests become forums for early skirmishes in civil litigation or ever-more inventive arguments about the state’s duty to protect life. This does nothing to help coroners maintain an inquisitorial atmosphere while undertaking their statutory duty to answer four factual questions of who died, when, where and how.

A suggested quid pro quo

As yet, the MOJ has not announced what ‘further options’ may be forthcoming. To avoid another decade of can-kicking, more money will be needed. This should be from an independent, central source. But the quid pro quo should be that the lawyers involved for all sides respect and value the unique, discrete, and important inquisitorial role that inquests play within our legal system. ●

An ‘inquisitorial advocacy style’: refining or defining?

In order to ‘encourage support for the changes we are making and the use of an inquisitorial advocacy style’, the MOJ is to hold a summer conference for lawyers representing public bodies and those representing families. The report goes on to say that the MOJ is discussing ‘conduct and training’ with the Bar Standards Board and the Solicitors Regulation Authority – specifically, ‘what they might do to improve lawyers’ conduct in inquests where improvement is needed’.

A spokesperson for the BSB told Counsel: ‘As the article indicates we have been approached by the MOJ to consider how to ensure that barristers engaged in inquiries act appropriately and in line with the BSB Handbook. We have encouraged the MOJ to bring to our attention any specific concerns that they, or the Chief Coroner, have and will consider what appropriate regulatory action should be taken in the light of that information.’