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Public funding for families at inquests

Attending an inquest can be a daunting experience for bereaved families, particularly when they feel that their loved one’s death may have been caused by the State's employees or by its failure to protect the public. The family will often seek legal representation, and whether public funding should be available is a thorny issue.

 

Where a death occurs in police or prison custody, bereaved families are usually able to obtain public funding for legal representation at the inquest. However, in all other situations, bereaved families are only entitled to receive funding for legal representation if they have an "exceptional case", meet the criteria for funding and their application is authorised by the minister for legal aid.

 

A recent Court of Appeal decision has now set out that the minister for legal aid can refuse funding for legal representation even when the Legal Service Commision (LSC) considers that the application satisfies the funding criteria.

 

a) The case concerned Toby Main, an eight year old boy who had sadly lost his mother and nine year old sister in a railway accident in November 2004. Toby Main, via his father, applied for public funding for legal representation at the inquest.

 

The Legal Services Commission recommended that funding should be granted on two grounds:

 

• There was a significant wider public interest in the family being legally represented
• Article 2 of the European Convention on Human Rights was also engaged

 

Bridget Prentice, minister for legal aid, overturned that decision and refused public funding. The family subsequently challenged her decision as being irrational in the Court of Appeal.

 

Significant wider public interest

 

The Court of Appeal analysed the potential of the inquest to produce real benefits for the wider public, so that it was desirable to fund legal representation.

 

In reaching her decision, the minister had to consider if there were issues that the coroner could reasonably investigate without assistance from the family's legal representatives. The minister had taken the following into account:

 

• The train crash was not directly caused by any negligence or omission by a public body
• The bodies involved in the inquest were independent and impartial
• Independent reports of investigations into the crash were available to the coroner. The coroner had agreed to investigate the two safety issues, namely an early warning system and laminated glass, which had been identified in Rail Safety and Standards Board's report

 

The Court of Appeal concluded that the minister was entitled rationally to decide that full legal representation was not required in order for the coroner to properly investigate the relevant safety issues. There was insufficient public benefit to cause her to authorise such expenditure.

 

Article 2 Human Rights Act

 

The Court of Appeal noted that the greater the potential engagement of the state in causing a person’s death, the greater the need for an open system in which the state’s responsibility is fully and independently scrutinised. In order to satisfy Article 2, the coroner must be reasonably able to carry out a proper investigation into the deaths, including the wider safety aspects, without full legal representation for the family.

 

In this case, a member of the public had caused the accident by deliberately parking his car on the railway line. The victims were also members of the public over whom the state had no special control. Nevertheless, it was the state's responsibility to ensure safety on the railways. A matter for proper investigation was what safety improvements might practically be carried out to prevent a loss of life in similar circumstances.

 

The Court of Appeal concluded that, in this instance, the coroner was able to carry out this task. This was not a case of suspected wrongdoing or dereliction by agents of the state. There was no reason to suspect that the experts appearing on behalf of the independent bodies were likely to be evasive or wanting to cover matters up. The family were able, through the Legal Help Scheme, to identify matters that they wanted the coroner to explore.

 

Conclusion

 

The Court of Appeal set out that great caution must be exercised in relation to discretionary spending decisions. The case highlights the high threshold attached to "exceptional cases" which bereaved families are required to meet before receiving funding for legal representation.

 

For more information or advice, please contact Barbara Anthony on 0121 237 4560 or Simon Tait on 0115 976 6559.