Legal Aid Funding for Inquests
Many people who get involved in the inquest process understandably want legal advice. If they are an interested person (for example a parent, child, spouse or partner of the deceased, or any person whose act or omission may have caused or contributed to the death) they may want a lawyer to represent them at the inquest hearing itself. The use of legal representation can be the most effective way for family members to try and achieve answers to the questions and issues they have, and to try and pursue a particular conclusion. Medical doctors or other health care professional may seek legal representation in order to try and protect their interests if the care or treatment of the deceased provided by them is under scrutiny.
When someone decides they want legal advice or representation the first question many people ask is “can I get legal aid?” (public funding.) Sadly the answer is that public funding for initial advise and assistance pre-inquest is severely limited and legal representation at most inquests is excluded. Non-family members will not be able to get public funding at all. Sometimes home insurance policies provide cover for legal proceedings, or professionals may get help from their union. Crowd funding is becoming more widely used. Otherwise legal representation has to be funded privately.
For the family of the deceased legal aid is merits and means tested. Legal Help if granted, can cover the preparatory work associated with an inquest such as written submissions to the coroner, but it does not cover legal representation at pre inquest reviews, or for a full inquest.
To get legal representation at an inquest the case must qualify for exceptional case funding in accordance with section 10 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012, and The Lord Chancellor’s Exceptional Funding Guidance (Inquests). The criteria for this generally excludes inquests where the state has not been involved with the death. There are two grounds on merits when exceptional case funding for representation at an inquest could be granted. The first is where it is required by Article 2 ECHR. This involves a two-stage test. First, the inquest must fall within the category where the state has a procedural obligation to investigate a death where there are grounds to suspect the state may have breached Article 2 ECHR, “the right to life”. The Article 2 procedural obligation is automatically triggered when there has been
- Unintentional killing by state agents (E.g. a police shooting);
- a violent, non-natural death or suicide of a person detained in police or prison custody, or during an arrest or search; and
- a violent, non- natural death or suicide of a person detained in a mental hospital.
Case law from R (Humberstone) v Legal services Commission CA 2010 EWCA civ 1479 (see case summaries page) has ruled cases involving allegations that the death was caused by medical negligence out of engaging a breach of the Article 2 substantive obligation. See also Rabone and Anor (Appellants) v Pennine Care Foundation Trust (Respondent) , Tyrell v HM Senior Coroner for County Durham and Darlington , and R(Parkinson) V Kent Senior Coroner  for other examples where Article 2 is or is not engaged (see case summaries page.)
The second stage of the test is that funded representation for the family of the deceased is required to discharge the procedural obligation. Under stage two, legal aid caseworkers must consider all the individual facts of the case including
- The nature and seriousness of the allegations against state agents ;
- Previous investigations into the death; and
- The particular circumstances of the family.
There are several considerations within each category.
The second ground where exceptional case funding could be granted is where the Director of Legal Aid Casework makes a “wider public interest determination” in relation to the person seeking legal aid and for the inquest. These are the types of case where the likely wider public interest benefits are identifying things like dangerous practices or systemic failings.
Even if a family member can satisfy one or both grounds on merits, he must still satisfy the financial means eligibility criteria. Case workers have a discretion to waive these in certain circumstances but an applicant for exceptional case funding could find he has to make a financial contribution towards his legal costs.
In the wake of the Hillsborough Report, calls from the Chief Coroner, charities, lawyers and other interest groups there was huge pressure for public funding for families where the state was providing legal representation at an inquest for one or more interested person. The Government Review of Legal Aid for Inquests published in February 2019 rejected this. So, in Article 2 inquests or wider public interest inquests the eligibility for the family to get public funding for legal representation remains subject to the current statutory exceptional case funding criteria and the Lord Chancellor’s Guidance.
For high profile cases some families are using crowd funding to pay for the costs of specialist legal advice and representation.
In a significant number of cases inquest legal advice and representation ends up being privately funded.
Questions and Answers:
1. I have been told by the coroner I am an interested person. Can I get legal aid to cover advice and/or legal representation? No. Only interested persons who are a family member of the deceased might be eligible for Legal Help and Exceptional Case Funding legal aid.
2. The coroner has ruled my husband’s inquest in not an Article 2 inquest. Can I get any sort of legal aid? Subject to meeting the eligibility criteria you might get Legal Help for legal assistance ahead of the inquest hearing. You will not qualify for Exceptional Case Funding for legal representation at the inquest itself.
3. The coroner has ruled my son’s inquest is an Article 2 inquest. Can I get any sort of legal aid? Subject to meeting the eligibility criteria you might get Legal help to cover legal assistance ahead of the inquest hearing. In order to get full funding for legal representation at the inquest hearing your case will have to be approved for Exceptional Case Funding against the current criteria. Means testing might result in you having to make a financial contribution.
4. I have received a summons to attend an inquest to give evidence. Can I get legal aid for legal advice and /or legal representation? To be entitled to legal representation at an inquest you must also be an interested person not just a witness of fact. Legal aid is not available for any stage of the inquest process unless you are an interested person who is a family member of the deceased. There is nothing to prevent you getting legal advice and assistance prior to the inquest but you will need to fund this.
The lawyers at Inquest Representation Service are experienced in assisting with pre-inquest advice and preparation as well as providing representation at inquest hearings. Call 033 00 77 00 97 without obligation if you would like to discuss how we can help and the likely costs. All calls are treated in strictest confidence.
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