Following the release of the extremely disappointing report on the government’s review of legal aid for inquests, Rebecca Roberts looks at the background to INQUEST’s latest campaign.
Families are often left in the dark, trying to sort out numerous matters associated with a loved one dying whilst under the protection of the state, while trying to make sense of what has happened both emotionally and legally. Having access to funded legal representation is paramount for justice.
Louise and Simon Rowland, family of Joseph Phuong
Whether it is the death of a child in a mental health setting, the self-inflicted death of a prisoner, or a death as a result of neglectful state services, bereaved families experience a profound, yet unnecessary, injustice. Access to justice is hindered by an inequality of arms, where the interests of powerful institutions prevail over those who are seeking the truth about how and why their relative died.
Whenever the inquest system has been reviewed, or contentious deaths and their investigations examined, there has been a recognition that the current funding arrangements for legal representation for bereaved families are in need of fundamental reform. This has been a key priority in INQUEST’s work going back many decades, consistently calling for automatic legal aid funding for families.
Through the hard-fought campaigns of families, supported by INQUEST and lawyers, the past few years have seen unprecedented focus on how agencies investigate and scrutinise contentious state-related deaths. Momentum for change is now overwhelming, with the call for funding for families echoed from every possible quarter – Dame Elish Angiolini DBE QC, Rt Rev James Jones KBE, Lord Bach, two chief coroners, Baroness Corston, Lord Harris, the Joint Committee on Human Rights, the Independent Review of the Mental Health Act, and agencies including the Independent Office for Police Conduct.
These provided the impetus for the Ministry of Justice (MoJ) to launch a review of legal aid for inquests and it issued a call for evidence in July 2018 (see Review of legal aid for inquests – call for evidence
, MoJ, 19 July 2018). Legal aid minister, Lucy Frazer QC MP, in the foreword of the call for evidence, said:
Recently, criticisms have been levelled against the current availability of legal aid for inquests. In light of this, it is time to review the current system and seek views on people’s experiences of the system. We want to ensure that bereaved families are properly supported and able to participate in the inquest process (page 3).
The call for evidence was issued in the form of a 36-page document with 24 questions. It was peppered with basic errors and inaccuracies about the process and availability of legal aid for inquests. The questions contained typos but were corrected following contact from INQUEST Lawyers Group (ILG) members. The online survey platform for responding was impractical as it only displayed the questions, many of which could be easily misinterpreted without reference to the separate detailed review document. With a deadline of 31 August 2018, the tight six-week turnaround over the summer period meant that many individuals and organisations had neither the time nor the capacity to respond.
The review document was framed for a professional audience, stating: ‘We are particularly interested in hearing from members of the legal profession’ (para 70, page 14). Despite saying so in the press release, the actual review document makes no explicit mention of seeking the views of bereaved families, other than saying: ‘We are interested in hearing from you if you have been involved in the inquest process’ (para 69, page 14).
INQUEST offered to assist by facilitating meetings with families. In response to our offer and our concerns about the timeline, MoJ officials reassured us that ‘[t]his time frame was in part chosen because it is a preliminary call for evidence exercise … we will make sure there is a further opportunity to consult on any prospective policy options off the back of the review, in the form of a public consultation’.
Through conversations and meetings with the review team, INQUEST was led to believe that coming out of the evidence review would be a consultation on new guidelines for legal aid funding for inquests and that this would include seeking the views of families. So we played along, investing a huge amount of energy and time in turning around a detailed response in just six weeks. We trawled our casework database, reviewed our previous reports, compiled case studies and consulted with families and lawyers. This was brought together into a 30-page dossier of evidence that was then reviewed by a working group from the ILG (INQUEST response to the Ministry of Justice: review of legal aid for inquests – call for evidence
, August 2018). The ILG also conducted a similar, intensive evidence-gathering exercise, submitting a separate response that was formally signed by 38 ILG members and 18 non-members (INQUEST Lawyers’ Group response to Ministry of Justice’s review of legal aid for inquests – call for evidence
, September 2018).
INQUEST reached out to families to encourage them to respond to the review. We provided a guidance document for them on completing the questionnaire. After submitting individual evidence, families were contacted directly by the MoJ review team inviting them to a meeting (INQUEST was not in attendance). Feeding back to us afterwards, one family member explained that while they had welcomed the opportunity to be involved, the officials seemed ‘completely overwhelmed’ and appeared to know very little about the issues at hand. They emphasised that it was clear that family involvement was just a ‘final afterthought’.
On 7 February 2019, the MoJ published Final report: review of legal aid for inquests
(CP 39), stating: ‘[W]e have decided that we will not be introducing non-means tested legal aid for inquests where the state has representation’ (para 9(iv), page 5). This rejection of automatic funding for families was a crushing betrayal of those who invested in the review of legal aid. Despite claiming that ‘[w]e have endeavoured to keep the needs of the bereaved at the heart of the proposals’ (para 20, page 7), the content of those proposals suggests the complete opposite. Only one of the three chapters in the review actually focuses on legal aid for inquests. The other two look at communications with bereaved families and the inquest hearing – areas that were not explicitly within the remit of the review.
The proposals put forward by the MoJ are focused on improving guidance and signposting for families and lawyers to make the process easier to understand. Families, the report says, ‘need better awareness of when legal aid is available’ (para 45, page 11). It will review the exceptional case funding application process to ‘ensure it works as effectively as possible’ (para 9(iii), page 5). This is then followed by vague commitments to ‘considering options’ for expanding support services, and ‘improving the conduct of lawyers’ (para 10, page 6).
The proposal to allow provision for the backdating of the legal help waiver will fund early legal advice for bereaved families that are entitled to funding. This would simply reinstate a practice that was common around two years ago and is one small concession in what is a dishonest and patronising report. It is seemingly written by someone with very little grasp of the available evidence and issues that have been clearly documented in multiple reports, as well as submissions to the review. None of the proposals will address the power imbalance faced by families where legal processes are stacked in favour of state and private providers.
Families will not be silenced
On 26 February 2019, INQUEST launched our family-led Now or Never! Legal Aid for Inquests
campaign. We published a new briefing outlining the case for reform and a timeline illustrating the overwhelming call for change going back 20 years. Alongside this, we launched a petition
calling on the government to reconsider its conclusions, listen to families and introduce automatic non-means-tested legal aid funding for bereaved families following state-related deaths.
At the parliamentary launch meeting chaired by Rt Rev James Jones KBE,1See April 2019 Legal Action 4.
Lucy Frazer QC MP faced a room of frustrated families, MPs and peers. Richard Burgon MP, the shadow justice secretary, also spoke, pledging that a Labour government would provide automatic legal aid at inquests for the families of those who die in state detention.
Tania El-Keria spoke about being ‘devastated and disgusted’ when she was told that she did not need representation following the death of her 14-year-old daughter, Amy, at a Priory Group-run children’s inpatient high dependency unit. She said: ‘I have had to fight for legal aid, fight for justice. Without funding there is no justice. The state and its agents are automatically funded to have legal representation. So must we. Anything less is second-rate justice for us and the ones we have lost.’
Tellecia Stracham, sister of Kevin Clarke, who died in London in 2018 following police contact and restraint, spoke about the intrusive process families face to provide information about their finances for the current means test, which causes additional suffering while they are already grieving: ‘The state – you’re just provided with it, with taxpayers’ money, and it’s wrong and it’s not fair on the families.’
Dr Sara Ryan, mother of Connor Sparrowhawk, an 18-year-old who drowned in a locked bathroom in an NHS unit, had to crowdfund £27,000 to cover their legal fees and was up against seven state-funded barristers. ‘We were told we didn’t need legal representation because inquests are “inquisitorial” hearings,’ she said. ‘This couldn’t have been further from the truth. The coronial process is an intricate, law-drenched and adversarial journey in which families without expert legal representation are too easily silenced. From the moment Connor died, it felt like a well-oiled state machine was cementing a wall of denial.’
The issue of contentious deaths, their investigation and the treatment of bereaved people is firmly on the political agenda. The power imbalance between bereaved families and the state is the most significant injustice of the coronial process. Removing the barriers to accessing legal representation will not only create a fairer and more just inquest system, it will also protect lives.
The Legal Aid for Inquests campaign has the formal backing of Liberty, Grenfell United, Mind, the United Families and Friends Campaign, The Bar Council, Cruse Bereavement Care, LAG, the Legal Aid Practitioners Group, AvMA (Action against Medical Accidents), the Runnymede Trust, the Criminal Justice Alliance, Operation Black Vote, Article 39, Women in Prison, Agenda and the ILG.
INQUEST is not giving up. We’ve campaigned on this important issue for more than 30 years and change is on the horizon. It really is now or never. Working alongside families, lawyers, parliamentarians and policymakers, we will keep pushing for fair public funding for legal representation at inquests, to end this unequal playing field.
Timeline of recommendations 1999–2019
Report of the inquiry by Sir William Macpherson of Cluny.
That consideration be given to the provision of legal aid to victims or the families of victims to cover representation at an inquest in appropriate cases (recommendation 43).
Report of the independent review of the coroners services commissioned by the Home Office, chaired by Tom Luce.
We recommend … that there should be a more liberal interpretation of the criteria in cases where a public authority is represented (page 148).
Report of the Joint Committee on Human Rights.
[I]n all cases of deaths in custody, funding for legal assistance should be provided to the next-of-kin (page 88).
Report by Baroness Corston of a review of women with particular vulnerabilities in the criminal justice system.
Public funding must be provided for bereaved families for proper legal representation at timely inquests relating to deaths in state custody that engage the state’s obligations under article 2 of the European Convention on Human Rights. Funding should not be means tested and any financial eligibility test should be removed whenever article 2 is engaged (page 5).
Report of the review by Lord Harris.
Families of the deceased should have a right to non-means tested public funding for legal representation at an inquest (page 174).
Report of the chief coroner, HHJ Peter Thornton QC, under Coroners and Justice Act 2009 s36.
The chief coroner … recommends that the lord chancellor gives consideration to amending his Exceptional Funding Guidance (Inquests) so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons (page 44).
Report of the review by Dame Elish Angiolini DBE QC.
[T]here should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the inquest hearing (page 13).
Final report of the commission chaired by Lord Bach.
Where the state is funding one or more of the other parties at an inquest, it should also provide legal aid for representation of the family of the deceased (page 9).
Report by Rt Rev James Jones KBE.
Publicly funded legal representation should be made available to bereaved families at inquests at which a public authority is to be legally represented (page 59).
Report of the chief coroner, HHJ Mark Lucraft QC, under Coroners and Justice Act 2009 s36.
The chief coroner … recommends that the lord chancellor gives consideration to amending the Exceptional Funding Guidance (Inquests) so as to provide exceptional funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons (page 39).
Report of the Joint Committee on Human Rights.
[F]amilies must be given non-means tested funding for legal representation at inquests where the state has separate representation for one or more interested persons (page 22).
Response by the Independent Office for Police Conduct.
[W]e believe legal aid should be automatically available to bereaved families following deaths in custody or other state detention. This is particularly critical at inquests as legal proceedings are often by their very nature complex and other parties will ordinarily be represented (page 2).
Final report of the Independent Review of the Mental Health Act 1983, chaired by Sir Simon Wessely.
[F]unding should be available for the families of those who have died unnaturally, violently or by suicide whilst detained, to receive non-means-tested legal aid (page 100).
Report by the MoJ.
[W]e have decided that we will not be introducing non-means tested legal aid for inquests where the state has representation (page 5).