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Is our system broken? In partnership with INQUEST

Although you might have some idea of what an inquest is, most people only learn what this investigation really entails when they are grieving the loss of a relative. During this initial learning period, bereaved families discover how intrusive it can be and unfortunately, how variable coronial practice is.

Posted on 02 April 2020

A coroner’s investigation is often considered a postcode lottery, as standards of conduct and coroners vary across the country.

In addition, obtaining legal advice and representation for inquests can be costly. Public funding, known as legal aid, protects the vulnerable and provides those who are legally entitled to representation with financial assistance; however, the eligibility is so low that many families are unable to secure funding for legal representation at an inquest.

Within this article we’re going to highlight the difficulties bereaved families face when trying to secure legal aid, issues within the coronial process, legal aid in practice and recommendations for reform.

We’re also partnering with INQUEST, an independent charitable organisation that provides free legal advice, to discuss the support they provide bereaved families and their ‘Now or Never! Legal Aid for Inquests’ campaign. 

The challenges of legal aid at inquests

  1. Legal aid for inquests is very limited. This means it’s difficult to secure and is generally only available if:
    1. You are financially eligible; or
    2. The Legal Aid Agency (LAA) determines your matter meets the narrow eligibility criteria.

The limits for financial eligibility have not changed for many years and are so low, that we’ve had cases where our clients have been receiving means tested benefits, but still didn’t qualify.

The LAA can waive the financial means test if they determine either the case is a breach of Article 2 and legal representation is required to protect your rights, or if there is a significant wider public interest in the inquest. 

The legal aid application process can be distressing. Even if legal aid is potentially available, the application is complex and intrusive. It also requires substantial financial information at a time when families are grieving.

The decision-making process is flawed. Decisions are often delayed, and many applicants report poor decision making, with legal aid usually being obtained after an original refusal has been successfully appealed.

Inquest hearings continue during the legal aid decision-making process. Lawyers and their clients often have no option but to attend hearings to protect their client’s/own interests as few coroners are willing to wait for a decision from the LAA. They must face the risk that legal aid may be refused.

Securing representation using legal aid is difficult. Even if an applicant is successful in getting legal aid, it is worth noting the rates payable are very low and hence many firms cannot offer representation and/or can only do a limited amount of this work. It can also be a struggle to get the LAA to agree to the cost of the work required and again even if successful, this does not prevent the LAA arguing that your costs should not be paid at the end of the matter

What is INQUEST?

Deborah Coles, Director of INQUEST:

For almost forty years, INQUEST has worked alongside bereaved families following deaths in state care or custody to ensure their participation at inquests and other investigation processes. Our specialist casework focuses on deaths in police and prison custody, immigration detention, mental health settings and deaths involving multiagency failings or where wider issues of state and corporate accountability are in question such as Hillsborough and the Grenfell Tower fire.

In our daily work with bereaved people, INQUEST sees how access to justice is hindered by an inequality of arms, where the interests of powerful institutions prevail over the access of bereaved people to the truth and transparency over how and why their relative died. 

The most significant injustice of the coronial process

There is an unjust power imbalance between bereaved families who fight tooth and nail for funding for legal representation and state bodies who have automatic access to taxpayer’s money for expert legal teams. This is the most significant injustice of the coronial process.

To have any chance of funding, and at a time when they are grieving, families must jump through multiple hoops, answering extensive personal questions. Some are lucky to get legal aid, but many do not or face paying large sums towards legal costs. Some families are forced to represent themselves in complicated legal hearings while others resort to crowdfunding.

Like many other aspects of public legal work, pro bono lawyers have sought to plug the gap. Not only is this an unsustainable substitution for properly funded legal representation, but it fundamentally undermines the principle of access to justice, which instead becomes dependent on the goodwill of the legal profession.

The public value of legal representation must not be underestimated. Inquests at which families are legally represented are an invaluable public forum through which deaths can be scrutinised and failures, ill treatment and neglect exposed in the hope of preventing future deaths.
We had to do everything ourselves. We had no lawyer at the inquest. Those three weeks were the most terrifying thing I’ve ever done in my life. I had to cross examine witnesses, it was absolutely terrifying, and they had lawyers. There needs to be a level playing field; a family member should never be put through that. 
Family member, Angiolini Family Listening Day 2016

Legal aid in practice – the case of Colette McCulloch

Merry Varney, partner at Leigh Day:

There is no better example of the importance of legal aid for inquests than in the case of Colette McCulloch.

Colette was a vulnerable adult, and much loved and very talented daughter and sister, who died while in the care of Milton Park Therapeutic Campus which is run by a private company and funded by an NHS Trust.

She was hit by a lorry in the early hours of the morning while walking on a dual carriageway, following months of concerns being raised about the safety of Colette’s placement and the adequacy of her treatment. When I met her parents, the then responsible coroner planned to hold a very short inquest considering only whether Colette had intentionally stepped in front of the lorry, and he had swept aside her parents’ concerns that her death had been caused by failings in her care. Legal aid was initially unavailable for the inquest and never available to challenge any unlawful decision by the responsible coroner. The bereaved family had to rely on a combination of private and crowdsourced funds.

Thankfully sufficient progress was made to argue that Colette’s family should be entitled to legal aid for the inquest, including a waiver of the financial limits, to cover the costs of continued representation in an inquest involving four public bodies and the private company running Milton Park Therapeutic Campus.

After an initial refusal by the Legal Aid Agency public funding was eventually granted. The coroner, after submissions and a threat of legal action, accepted Article 2 was engaged and hence the inquest must consider the wider circumstances of how Colette died. Getting to the final inquest was a prolonged and difficult process for Colette’s family but with a new coroner in place, considerable evidence was heard over three weeks about the wider circumstances of Colette’s death. The coroner’s conclusion is thorough and damning, describing services Colette received as “dire”, her placement “a disaster”, and commenting that “For the most part it is difficult to understand how Colette was being helped if at all”. 

This public recognition of the wrongs suffered by Colette and her family would not have occurred had both legal aid not been in place, or the obligation flowing from Article 2, the right to life, for deaths occurring in state care to be fully and thoroughly investigated in a manner which allows effective participation of the family. 

Now or Never! Legal Aid for Inquests

Deborah Coles, Director of INQUEST:

The evidence for change is clear. Every independent review and public inquiry that has considered issues faced by bereaved families over the past 20 years has recommended that the inequality of arms between bereaved families and the state at inquests should be addressed.

Yet last year, the Ministry of Justice disregarded the overwhelming evidence and ignored the voices of bereaved families by rejecting calls for fair legal aid funding in their review of legal aid for inquests.
Despite the betrayal felt by all those who participated in the review, INQUEST and the families we work alongside vowed not to be silenced. INQUEST launched the Now or Never! Legal Aid for Inquests campaign.

INQUEST, bereaved families and lawyers, are calling for an end to this inequality of arms through the introduction of:

  1. Automatic non means tested legal aid funding to families for specialist legal representation immediately following a state related death to cover preparation and representation at the inquest and other legal processes.
  2. Funding equivalent to that enjoyed by state bodies/public authorities and corporate bodies represented.

Launched in February 2019, our petition has since received over 95,000 signatures, demonstrating clear and widespread public support around this issue. We’ve campaigned on this important issue alongside families for more than 30 years and we are not going to give up now. Removing the barriers to accessing legal representation will not only create a fairer and more just inquest system, it will protect lives.
If you require further information or support relating to inquests, get in touch with our specialists at Leigh Day on 020 7650 1200 or via our online enquiry form. Additionally, you can find help and advice via the INQUEST website.