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No funding, no justice: Legal aid at inquests

The UK government recently decided not to extend legal aid funding to grieving families at inquests. This was wrong on many fronts but the fight continues.

Deborah Coles
1 March 2019
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Bereaved families play a key role in challenging inequality, discrimination and unacceptable practices. Credit: INQUEST. All rights reserved.

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.

In our daily work with bereaved people, INQUEST sees how access to justice is hindered by an inequality of arms, where the interests of powerful institutions prevail over the access of bereaved people to the truth and transparency over how and why their relative died.

At a time of traumatic upheaval, families face insensitive and often adversarial inquest processes. The inquest into Connor Sparrowhawk’s death, an 18-year-old who drowned in a locked bathroom in an NHS unit, was a prime example of the evasive and combative approaches deployed by state bodies. Connor’s mother, Sara Ryan, said:

We were told we didn’t need legal representation because inquests are ‘inquisitorial’ hearings. 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 battle for legal aid

While state bodies receive automatic legal representation at inquests, families have to go cap in hand to the Legal Aid Agency for support. 

To have any chance of funding, families have to jump through multiple hoops to qualify. They face a distressing and protracted process, answering extensive, intrusive questions about their finances. Some are lucky to obtain legal aid, but many do not or they face paying large sums towards legal costs. Some families are forced to represent themselves in complicated legal hearings while others resort to crowdfunding for their lawyers’ fees.

This inequality of arms has been exacerbated by the outsourcing of state services to private companies, meaning bereaved families can face several lawyers representing varying state and corporate bodies. Well-funded legal teams representing multiple state bodies use public money to close ranks and support each other. Their approach is too often about damage limitation: trying to restrict the scope of an inquest, close down questioning, resist disclosure and minimise their responsibility and defend their policies and procedures. In giving evidence to parliament, the brother-in law of Joseph Phuong who died in police custody described the family’s battle for answers: “those [state] parties and those barristers or advocates are trying to shift the blame from them to someone else…. they have an agenda to remove as much blame as possible from their client.”

The struggles and campaigns of bereaved families for truth provide a counterweight to state secrecy and a lack of formal accountability, particularly where people die in closed institutions.

Families have played a crucial role in challenging inequality, discrimination and unacceptable practices. Without this ongoing, critical oversight from below, the abuses of power and neglect uncovered at many of these inquests would remain unchallenged and hidden from public view.

Momentum for change

Whenever the inquest system has been reviewed, or contentious deaths and their investigation examined, there has been a recognition that the current funding arrangements for inquest representation needs fundamental reform.

INQUEST has been involved in a series of Government commissioned reviews and inquiries in an advisory capacity. We have ensured the family voice is heard directly, on their experiences of the current investigation and inquest process. The emotional and physical impact of state related deaths on generations of families should not be forgotten, nor the way it is exacerbated by state denial and defensiveness, secrecy, insensitivity, delays, funding problems and lack of accountability.

Without funded representation, families are denied access to justice. They are voiceless, isolated and alienated from the process without any meaningful role. Families have a key interest in uncovering the full circumstances of the death and in ensuring that inquests do not merely sanction the official version of events. The absence of representation weakens investigations into state action, denying opportunities to interrogate the facts and ensure that mistakes or harmful practices are brought to light. Their function in seeking the truth, as well as exposing wrongful action and unsafe practices, serves a vital public interest in addressing the adequacy of systems for safety and welfare. It can save lives.

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 our call for funding echoed from every possible quarter – Dame Elish Angiolini, Bishop James Jones, Lord Bach, two Chief Coroners, Baroness Corston, Lord Harris, the Joint Committee on Human Rights, the Independent Review of the Mental Health Act and from agencies including the Independent Office for Police Conduct.

The 2017 landmark review by Dame Elish Angiolini on deaths and serious incidents in police custody and Rt. Rev James Jones’ report on the Hillsborough families’ experiences both made wide-ranging recommendations for change. Central to both reviews was the voice of families and their testimonies about the impact of the investigation and inquest process on their physical and mental health and well-being.

The importance of families’ representation was articulated powerfully by Dame Angiolini. In her review, she recommended non-means tested, publicly funded legal representation as a pivotal component to the state fulfilling “its legal obligations of allowing effective participation of families in the process that is meaningful and not “empty and rhetorical””.

Families ‘betrayed’

This groundswell of support for reform led the Ministry of Justice to launch a review of legal aid for inquests, issuing a ‘call for evidence’ in July 2018. INQUEST and the families we work with were assured that this was the first step towards change and that coming out of the evidence review would be a consultation on new guidelines for legal aid funding for inquests.

However, on 7 February, the Ministry of Justice published a final report, stating that “we have decided that we will not be introducing non-means tested legal aid for inquests where the state has representation”. This was a crushing betrayal of those who submitted evidence and engaged in the Ministry of Justice’s review in the hope of securing meaningful change.

The proposals set out by the Ministry of Justice largely focus on improving guidance and signposting for families and their representatives to make the process easier to “understand”. Families, the report says, “need better awareness of when legal aid is available”. This ignores the evidence that it is the system and processes are at fault. Leaflets and information will not address the power imbalance faced by families where legal processes are stacked in favour of state and private providers.

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 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.

Families will not be silenced

On 26 February, INQUEST launched our family led Now or Never! Legal Aid for Inquests campaign in parliament and opened a petition calling on the government to reconsider their conclusions, listen to families and introduce automatic non-means tested legal aid funding for bereaved families following state related deaths.

At the parliamentary meeting chaired by Rt Rev James Jones, Justice Minister, Lucy Frazer faced a room of frustrated families, MPs and peers. There was a palpable sense anger and frustration in the room. When speaking about the Ministry of Justice’s proposals to provide better information, the Minister was interrupted by one family member who said “We don’t want guidance, we want funding!”.

Richard Burgon, shadow Justice Secretary, also spoke at the meeting, pledging that a Labour government would provide automatic legal aid at inquests for the families of those who died in state detention.

The petition gathered 2,000 signatories on the first day and has formal backing of Liberty, Grenfell United, Mind, United Families and Friends Campaign, The Bar Council, Cruse Bereavement Care, Legal Action Group, Legal Aid Practitioners Group, AvMA, Runnymede Trust, Criminal Justice Alliance, Operation Black Vote, Article 39 and INQUEST Lawyers Group.

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 protect lives.

INQUEST and the families we work with refuse to be silenced. We call on the government to act now and urgently introduce fair public funding for legal representation at inquests, to end this unequal playing field.

To find out more about the campaign and to sign the petition, visit https://www.inquest.org.uk/legal-aid-for-inquests

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