Chief Coroner calls for wider availability of legal aid

At present, the Government funded Legal Aid Agency does provide some Legal Aid funding for families to pay for legal representation at inquests. However, it applies only to very restricted categories of cases and, even then, there are further financial eligibility criteria which have to be met.

If a family member of the deceased has very limited means then it may be possible to obtain Legal Aid funding in the form of Legal Help, which will provide for very basic funding to assist in preparing for an inquest hearing. However, the costs of legal representation at the inquest hearing itself – arguably the most vital part – is not included within this provision. In order to have qualified legal representation at the hearing on behalf of the family they must prove that the case is ‘exceptional’, for example that there is a significant wider public interest which means that publicly funded representation is necessary.

Even if a family are able to meet those strict eligibility requirements, the funding allowed is very low and significantly restricts the availability of solicitors and barristers who are prepared to accept cases on those terms.

Where the state are in any way involved in the circumstances of the death, for example if the death occurred in a prison or whilst the deceased was in the care of the police, then the state bodies will usually each have specialist legal representation which is funded by the Government. They are not subject to such strict eligibility requirements, nor are they constrained by the same restrictive budget as the family of the deceased. Clearly, this creates an inequality of arms where the family of the deceased are less likely to have suitable legal representation than the other parties involved in the inquest. Given that the family of the deceased should be at the centre of the entire inquest process it is very difficult to understand why their involvement in the inquest should be at all fettered.

Calls for change

In a recent interview with the Guardian, the Chief Coroner has recommended that Legal Aid should be made available for families where one or more organs of the state are represented. He has made the comments in advance of the release of his annual report:

“I have recommended in my annual report… that the Lord Chancellor should consider amending her exceptional funding guidance so as to provide… legal representation for the family where the state has agreed to provide representation for one or more people.”

The Chief Coroner comments “it is partly a question of equality of arms and also helps the Coroner who might otherwise be bending over backwards to help the family and might give the appearance of going too far.”

Deborah Coles, Director of the charity INQUEST, is supportive of the Chief Coroner’s suggestions:

“He has tried to remind people that family should be at the heart of the process and seen that it is at its worst when there is an imbalance in the resources available.”

The recommendations come in the aftermath of the reopened Hillsborough inquest and with the resumption of the inquest into the Birmingham pub bombings. I for one am pleased to see momentum building behind the cause for greater parity in funding provision for families. I have acted in cases where a fatality has occurred in police custody or in a prison. There can be several separate entities there, on behalf of the state, each with specialist representation and it is simply not fair that there is no automatic equivalent for the families involved. If there is any suspicion that the death was caused by failings in the care provided by the state then this is only compounded by the family feeling at a disadvantage in terms of legal representation, particularly when they are having to go through the process whilst grieving for the death of a loved one.

If you would like to discuss the issues arising in this article, or any other query concerning an inquest or a fatal claim, please do not hesitate to get in touch.