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“The exceptional public funding scheme perpetuates a myth: that people can represent themselves.”
Looking again at my copy of Phil Scraton’s book Hillsborough – the truth, in which he kindly inscribed a dedication for me almost exactly 15 years ago, it was impossible not to be immensely moved by the victory of the bereaved families in their search for truth and justice. The long-delayed but decisive verdict that the dead football fans were not to blame in any way for their own deaths brought to an end one of the longest and hardest-fought battles in our courts. And it was cheering that at least one politician, Andy Burnham, was asking questions about the legal system that had allowed it to happen. Lawyers always go on about ‘level playing fields’, but getting others to understand that inequality of arms has real consequences is not easy.
Andy Burnham has tabled the ‘Hillsborough law’: amendments to the Policing and Crime Bill to ensure that, in inquests involving the police, there will never be a situation where the police are allowed more public money for representing themselves than a bereaved family. This sounds like a simple solution but the problem is far wider.
The bereaved in long inquests raising issues under European Convention on Human Rights art 2 can get exceptional public funding if they pass the means test and, if they do not, there is a discretion to waive it. However, the funding is ‘exceptional’ with a presumption that people can represent themselves even in long inquests; the means testing is intrusive, time-consuming and upsetting; the funding provided is minimal; and there can be a problem in showing art 2 applies. The organisation Inquest has called for non-means-tested legal aid in long inquests.
Public funding for representation at inquests was actually brought in because of another big inquest (in which I was the solicitor), into the deaths in the Marchioness disaster, which, like Hillsborough, happened in 1989. The then Lord Chancellor agreed a special grant to fund the representation of 51 families, only after they said that without funding they would all represent themselves and ensure that the inquest lasted a year or more. Subsequently, inquest representation was incorporated into the public funding system but only on the basis that normally people should represent themselves. Inquests involving health and safety issues – as Hillsborough did – are often those for which it is hardest to get funding, even though the bereaved are in the position of representing the wider public in ensuring particular incidents do not happen again. If the culpable body has been privatised, it may claim art 2 does not apply. This happened during major rail crash inquests and the inquest into the Lakanal House tower block fire.
Two recent cases have seen funding denied to families facing such inquests. The family of seven-year-old Zane Gbangbola, who died in his sleep in 2014, say his death was due to a leak of hydrogen cyanide gas from a nearby landfill site but this is contested by the Environment Agency and Spelthorne Borough Council. While public money is being used to fund their representation and even a counsel to the inquest, the family have had to resort to crowdfunding. Five-year-old Alexia Walenkaki died last year in Mile End Park when a tree being used to support a rope swing collapsed on her. Her family blame Tower Hamlets Council but have been refused legal aid for the inquest, to be held in 2017.
A wider point is that the exceptional public funding scheme, which covers not only inquests but most social welfare, immigration and community care cases, perpetuates a myth: that people can represent themselves. On 20 May, the Court of Appeal gave judgment in Director of Legal Aid Casework and another v IS [2016] EWCA Civ 464, which sought to show systemic unlawfulness in the scheme. Despite extensive evidence of its inaccessibility, the court overturned the judgment of Collins J, which would have struck down the scheme.
Hopefully, Lord Bach’s review for the Labour party will get to grips with the crucial importance of real access to justice. In the meantime, well done Andy Burnham for raising the issue. ■