Legal Aid

Inquest Representation ServiceMany 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 verdict.  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 inquests 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. Otherwise legal representation has to be funded privately. For the family of the deceased if someone qualifies financially it is possible to get Legal Help for legal advice and pre-inquest preparatory work. Beyond that the Access to Justice Act 1999 s 6(8) gives the Lord Chancellor the power to direct funding for representation on behalf of immediate members of the family at an enhanced inquest concerning a death

  • Occurring in police or prison custody, or
  • During the course of police arrest, search pursuit or shooting, or
  • During the compulsory detention of the deceased under the Mental Health Act 1983.

Even if the death falls into one of those categories there is an additional hurdle to get over. The Legal Services Commission (LSC) has to be satisfied that funded representation is necessary to assist the coroner to investigate the case effectively and establish the facts.  The Lord Chancellor issues guidance on funding of individual cases that fall within s6(8). The LSC has to pay regard to this when assessing an application. [See Funding Code: Decision Making Guidance in the Legal Services Commission Manual 2010.] Note the Humberstone case [see below] led to criticism of the legality of some of the tests used in the Guidance as referred to here but as yet it has not been amended.

What if the death does not fit into those categories of authorization? In exceptional cases that fall outside it the Lord Chancellor has the power to provide funding on an individual basis up to a specified sum for advocacy and representation at an inquest hearing only.  Generally the applicant must show financial eligibility and that no other means of funding is available but the LSC has the discretion to waive the financial eligibility limits. The LSC has to approve the application first then make a request to the Lord Chancellor for final authorisation of the funding.

An exceptional case must show either that there is a significant wider public interest in the applicant being legally represented at the inquest, or, funded representation for the family of the deceased is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by Article 2 of the European Convention on Human Rights.  The case of R (Andrew Jones) v Legal Services Commission [2007] EWHC 2106 (Admin)read the report held  “There has to be factual and/or legal complexity so that legal representation is needed at the inquest in order to ensure an effective investigation with the next of kin involved to an appropriate extent.”  To meet the “significant wider public interest” test the proceedings must have the potential to produce real benefits for members of the public. Also the applicant must be able to demonstrate that representation is necessary to obtain any benefits that may arise not just that the inquest itself may provide benefits.    Paragraph 27.2(6-12) of the Lord Chancellor’s Guidance sets out further circumstances that the LSC needs to take into account for example, the nature and seriousness of any allegations which are likely to be raised at the inquest, including in particular any allegations against public authorities or other agencies of the state, and, whether the family may be able to participate effectively in the inquest without the need for advocacy on their behalf.

The whole issue of funding for full legal representation was scrutinised by the Court of Appeal in R (Humberstone v Legal Services Commission (CA) [2010 EWCA civ 1479read the report. The LSC refused to grant funding for full legal representation to a family where the deceased died of an asthma attack after there had been a delay in the ambulance arriving to take him to hospital. The Court of Appeal ruled that this was unlawful. In the decision the Court of Appeal made observations there were certain parts of the Lord Chancellor’s Guidance which were unsatisfactory and inconsistent with the procedural duty under Article 2 ECHR.  First, the question should be whether representation is necessary to enable the deceased’s family to play an effective part. Second, it should not be necessary or appropriate to classify a case as exceptional before it can be adjudged to give rise to a need for representation. Third, the guidance states that in the majority of cases the family will be able to participate effectively without the need for advocacy services and that in general the ability to attend and understand proceedings together with an opportunity to raise any particular matter of concern with the coroner will be sufficient.  This creates a presumption against the grant of funding which is inconsistent with the application of the test and overlooks the right of a close family member under rule 20 of the Coroner’s Rules 1984 to ask questions. Hopefully the decision in Humbertsone will make it a little easier for the family to obtain public funding for full representation whenever the coroner needs to hold an enhanced Article 2 inquest.

Where the coroner is holding a standard inquest (where the coroner does not need to determine whether an agent of the state unlawfully took life and /or whether state agents failed to take adequate steps to protect life when under a duty to do so under Article 2 of the European Convention of Human Rights) there is no public funding available for legal representation at the inquest hearing. See the Lord Chancellor’s Guidance Note on Exceptional Funding by Way of Legal Aid in Inquests

In the majority of cases, inquest legal advice and representation must therefore be funded privately.

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.