In two recent articles we looked at the law and procedures of Coronial Inquests in some detail. Our first article, ‘What happens at an Inquest (and other frequently asked questions)’ gave an overview of the Inquest procedure. During the course of this blog we asked, and provided answers to, questions such as, ‘When is an Inquest required?’, ‘What is the purpose of an Inquest?’, ‘What will happen at an Inquest?’ and a number of other common issues that face those involved in the Inquest procedure.
In a more recent blog, ‘Article 2 Inquests – What you need to know’, we looked at the enhanced Inquest process, or Article 2 (of the European Human Rights Convention) Inquests as they are more properly known. This type of procedure is required where a state agency has been implicated in the death of a person who was in the custody of the state, within the broadest meaning of the word, ‘state.’
This includes those who die whilst in police custody, in immigration detention centres, in prison, in state funded care homes, in state mental health facilities and, in certain circumstances when medical negligence is the cause of death, in state hospitals.
One area that we haven’t covered so far is the way legal representation of the bereaved family at Article 2 Inquests can be funded.
Representation of a bereaved family at an Article 2 Inquest – who pays?
Enhanced, or Article 2 Inquests, are more complex in their nature, than non-Article 2 inquests. The Inquest hearing itself is also likely to last longer and will look at wider, more complex issues, than is the case with a standard Inquest.
Bereaved family members are very likely to be required to give evidence at an Article 2 Inquest. The whole experience can be daunting, bewildering and upsetting. For the family of the deceased, obtaining legal assistance from an experienced Inquest lawyer is not only highly recommended but, we would say, a necessity.
An Article 2 Inquest will be called for if a state agency stands implicated in the death of the deceased. For that reason, all witnesses for the state agency will have legal representation paid for by their employer.
You would therefore expect that to even up the balance, the state should be responsible for the legal fees of the witnesses of the bereaved.
Not necessarily so. The Legal Aid, Sentencing and Punishment Act 2012 (LASPO) (a significant piece of government legislation affecting large areas of the legal profession) unfortunately contained provisions that, other than allowing for means tested legal advice, made family members of the bereaved ineligible for any other form of legal aid, such as funding for legal representation at the Inquest itself. The exception to this is when help may be available for this purpose, under the Exceptional Case Funding Scheme.
This scheme provides that exceptional funding may be provided where:
- It is “necessary to make the services available to the individual under this Part because failure to do so would be a breach of…the individual’s Convention rights i.e. failure to do so would be a breach of the European Convention on Human Rights (ECHR), or
- A “wider public interest determination” has been made. This is a “determination that, in the particular circumstances of the case, the provision of advocacy under this Part for the individual for the purposes of the Inquest is likely to produce significant benefits for a class of person, other than the individual and the members of the individual’s family”.
If the criteria for being able to obtain this exceptional form of Legal Aid funding sounds like it involves a complicated process, it does. For an individual with no legal background, it is an almost incomprehensible scenario to be faced with.
The likely chances, even if you get to grips with tackling the complexities involved, of being granted Legal Aid under the exceptional funding scheme, are slim. The process also takes an inordinate length of time to be completed.
None of this will provide comfort to those yet to go through the Article 2 Inquest process without having the benefit of expert legal representation, due to a lack of funding to pay for an expert Inquest solicitor’s services.
The reality is that without the assistance of pro bono (free) representation by specialist lawyers, many families will, for the foreseeable future, continue to face the nightmare of attending Inquests without representation.
Jonathan Austen-Jones is a partner at Healys solicitors in Brighton and London. He is a highly experienced specialist Inquest lawyer. He has represented families at all types of Inquests, including many Article 2 Inquests.
Jonathan always investigates all possible funding options that may be available for the family of the bereaved who require advice, assistance and representation with regard to forthcoming Inquests.
In the likely event that Exceptional Case Funding via Legal Aid is not available, as set out earlier in this blog, Jonathan will look into the possibility of there being any legal expenses insurance cover available to the family, as well as considering other funding options, such as Conditional Fee Agreements (CFAs), commonly known by the public as “No Win, No Fee” arrangements, which may be appropriate if the circumstances of the death indicate there is scope to bring a subsequent civil claim for clinical negligence compensation.
Jonathan does not make a charge for this initial funding assessment advice. For a confidential initial chat call Jonathan on 01273 810 067 or email firstname.lastname@example.org