Letter to the Lord Chancellor on further options for funding legal representatives at inquests

Dear Lord Chancellor

I am writing to you to set out the case for your Department to undertake a review of the funding of legal representation at inquests in all cases where someone has died whilst in the custody or care of public authorities, or where a public authority is involved in the circumstances of the death.

In making this request, I am working with Rt Rev Sir James Jones, former Bishop of Liverpool, who led the Hillsborough Independent Panel and authored the report: Patronising disposition of unaccountable power; the human rights charity, JUSTICE, which published its report: When Things Go Wrong: the response of the justice system in August 2020; and the charity INQUEST, which provides expertise on state related deaths and their investigation to bereaved people, lawyers and advice and support agencies.

The purpose of this review would be to give bereaved families access to free (non-means tested) legal representation whilst at the same time placing limits on the expenditure of the authorities who are named as interested persons. The desired outcome should be to give these families access to justice and ensure parity whilst incurring no additional cost to the exchequer.

The types of cases falling within the scope of this review would be those where death has taken place in circumstances where the role or responsibilities of public authorities are relevant to exploring how the death happened, for example a terror attack or the handling of a public safety incident such as Hillsborough. There may be a criminal element with perhaps a potential for civil liability on a public authority for exacerbating or failing to alleviate risk. The case might involve a single death, having taken place in a mental health setting, in police or immigration custody or in prison. Equally, such cases often form part of a wider narrative, in which “systemic patterns of failure” are an evident cause or factor.

I am aware the Government has conducted a Review of Legal Aid for Inquests. In its final report in February 2019, it said:

‘We have decided that we will not be introducing non-means tested legal aid for inquests where the state is represented. However, going forward, we will be looking into further options for the funding of legal support at Inquests where the state has state funded representation. To do this we will work closely with other government departments”.

Just to be clear, I am not calling for this decision to be overturned. What I am calling for is an alternative system to legal aid that provides for the provision of publicly funded legal advice and representation for bereaved families. It might be that this work is already underway as part of the Government’s investigation of ‘further options’, although more than two years has passed since the report and we are uncertain how far this work has progressed.

I acknowledge inquests are intended to be inquisitorial and not adversarial in concept. However, as JUSTICE pointed out in its report, when you have a number of public authorities all represented by counsel, the inquest can become ‘an adversarial wolf in inquisitorial sheep’s clothing’ as it becomes the arena where the accountability of the public bodies in question is tested. State bodies instruct legal teams and are unrestricted in the rates and quantum of funding and the level of representation.

In their oral evidence to the Justice Select Committee inquiry into the coronial system, INQUEST described how families go through the inquest process in the hope that they will get answers and acknowledgment of what went wrong. This hope is in the public interest, to identify faults and harmful practices that if put right could prevent future deaths. Yet those who support these families observe that this hope is all too often frustrated by a culture of institutional defensiveness from many public agencies at inquests, who are focused on reputational management rather than a meaningful search for the truth. It is manifestly unfair that in current coronial proceedings, a bereaved family is reduced to mere bystanders, beholden to the coroner to ask questions they wish asked on their behalf, should the coroner agree to do so, and in effect rendered legally defenceless..

This observation is not intended to be disrespectful of the role of the coroner, but, however skilled and committed, it is not possible for a coroner to enter into an in depth understanding of the interests and concerns of a family in the way that a lawyer may do, whose sole interest is to represent that family. It also does not satisfactorily meet the sophisticated and tactical cases put forwarded by represented public authorities.

Families do not have automatic access to legal aid or other legal funding. Some “Article 2” inquests are more likely to be amenable to legal aid funding for families. This may be via a grant of ‘legal help’ which allows for pre-hearing advice or via exceptional case funding, for advice and representation before and at the Inquest Hearing. However, legal aid is not granted in every Article 2 inquest, including inquests where the circumstances of the death are contentious. This means those closest to the victim, who have suffered life-changing loss, most of whom are not legally aided (which, in any event, is a complex, intrusive and distressing process at a time when they are grieving), are unlikely to be able to afford representation.

As taxpayers, these families are likely to be contributing to funding the legal representation of public bodies who may hold some responsibility for their loved ones’ death, yet they are being denied public funding for representation for themselves.

As Victims Commissioner, I share the Government’s commitment to ensuring that, in particular, victims of crime are given every assistance to: ‘Cope and Recover” from what has happened to them. This is the overarching aim to which governments over many years have committed funding for victims’ support services and which they have set out in the statutory Victims Code of Practice, the Victims Strategy and which is expected to be a central tenet of the proposed Victims’ Law. In order to ‘cope and recover’ from the death of a loved one, it is well established that the bereaved need to know and to understand how their loved one met their death and to have all their questions answered and their doubts met.

By recognising families as ‘interested parties’ as the law does, there is a clear intention to allow them to participate. It is well-evidenced, not least of all by my predecessor’s report: What Works for Victims that procedural justice, involving being treated with decency and concern, apprised of all relevant developments, furnished with information, given skilled and professional support and allowing the fullest engagement possible in proceedings is a key part of the restoration process required for the cope and recovery of a victim of crime.

There have been multiple official reports since Lord Macpherson’s in 1999 which have called for review or changes to the position for these families. Although the debate is often framed in terms of legal aid, the recommendations of these reports are essentially for non-means tested public funding for legal representation at an inquest.

For example, the report of the Independent Review of Deaths and Serious Incidents in Police Custody by Dame Elish Angiolini concludes there should be access for the immediate family to public-funded, non-means tested legal advice, assistance and representation immediately following the death and throughout the inquest hearing. Sir Simon Wessely ‘s Final Report of the Independent Review of the Mental Health Act recommended that funding should be available for the families of those who have died unnaturally, violently or by suicide whilst detained.

The Bishop of Liverpool’s report on the experience of the Hillsborough bereaved families (The Patronising Disposition of Unaccountable Power) included two points of learning covering this issue. The first reiterates my request, and the recommendation of the JUSTICE working party, that publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented. The second was that the Government should identify a means by which public bodies can be reasonably and proportionately represented but are not free to use public money without restriction. This is important. Public authorities should be told to moderate the cost of their legal advice and representation, which, particularly in cases where a number of authorities are involved, can be a massive cost to the public purse. In his report, the Bishop called on the Government to identify a means by which public bodies can be reasonably and proportionately represented but are not free to treat public money as if it were limitless.

These circumstances give rise to two separate but related demands. One is that the State whose agencies are involved in the inquest should supply funding to provide for families to be represented where they wish to be. The second is that families should have access to legal funding for lawyers of their choice on a similar scale to that of the relevant State authority. It is inimical for the state to furnish, via the relevant public agency’s budgets substantial funding in a bid to safeguard public authority reputation and or liability yet provide no funding at all for those who have lost a loved one. There is a need for this imbalance to be addressed, “a level playing field” to be provided and the human rights concept of “equality of arms” to be made available.

One suggestion is the establishment of a separate and specific fund with its own criteria. It might possibly be retained and administered by the Ministry of Justice or by the Office of the Chief Coroner. Following the fund’s establishment, it ought to have the power to require contributions from public authorities who choose to be represented at inquests so that they will, at the same time, contribute to the fairness of the proceedings by sharing the cost of ensuring advice and representation and supporting the cope and recovery of families.

Another suggestion is that public authorities should match their own expenditure in a particular case with making an equivalent contribution to the family’s costs. The prospect of having to match funding in this way should incentivise public authorities to re-evaluate and restrain their own expenditure; provide more of a level playing field; and reduce the unfair in-balance of legal firepower commonly now distorting the nature of inquests in these cases.

In an inquest where several public authorities are represented, in either suggestion, they would all contribute, with any contribution proportionate but not linked to any finding of fault implicit or express in the inquest’s conclusions.

As ever, I am happy to meet with you and you officials to discuss this issue further.

In line with my usual practice, we will be placing a copy of this letter on my website. However, given we are in purdah, we will delay doing so until Tuesday 4 May.

Yours sincerely

Dame Vera Baird QC

Victims’ Commissioner for England and Wales