In 2013 Nicholas Harry's baby boy Sam, was killed. The police stated that either Sam’s mother Deanne, or her then partner Ryan were responsible. But they both denied it and blamed the other one. There was no other evidence so the criminal investigation came to a halt.
Because Sam’s death was ‘unnatural’, in the absence of any criminal prosecution, the Coroner was obliged to hold an inquest into Sam’s death to establish how he died. In Nicholas’ words, “the inquest was my final chance of any sort of justice….this was my only chance to get answers”.
Despite this, and although bereaved families are supposed to be at the heart of inquest proceedings, legal aid is not routinely available so, unless they have the funds to pay for a lawyer, they will often not be legally represented.
After much pressure, the UK government have now agreed to review whether legal aid should be more available for certain types of inquest proceedings. The findings are due to be published at the end of the year, at the same time as the review on the civil legal aid cuts made in 2013.
The government has maintained that legal aid does not need to be available to bereaved families because an inquest is supposed to be a non-adversarial process. But in reality, this is far from the case. Although there are certainly no winners, people often have strong and opposing views about how a death occurred and are therefore seeking different outcomes.
It is not unusual for a public body facing allegations about their standard of care to instruct lawyers to try and limit the scope of a Coroner’s investigation.
Southern Health NHS Foundation Trust attempted to do this in the inquest of Connor Sparrowhawk after he died a completely preventable death, contributed to by serious failings and neglect in their care. Not long after Connor’s death, Southern Health NHS Foundation Trust published board minutes referring to his death being due to natural causes and that everything had been done absolutely properly. It took far too long for the Trust to finally say “Connor needed our support. We did not keep him safe and his death was preventable.”
A bereaved family with the benefit of legal representation may be able to respond to attempts to limit the scope of an inquest and ensure a full and fearless investigation, but many are told lawyers are unnecessary and find themselves ambushed in the first hearing.
When public bodies are involved, they will usually be legally represented by a solicitor and a barrister while a bereaved family might have no representation at all. This creates a stark inequality of arms. As Dame Angiolini observed in her 2017 Review into deaths in police custody “all of the various branches of the state will attend inquests bristling with senior barristers and solicitors to represent them and ultimately, all paid for by the taxpayer.”
Also controversies can arise over how the inquest is conducted. Coroners are given exceptionally wide-ranging discretion in how they conduct an investigation and inquest, and bereaved families are often powerless to challenge questionable decisions. The family of Colette McCulloch spent around 18 months fighting with HM Assistant Coroner Pears as they tried to secure a full and fair inquest, using crowdfunding to pay for legal fees before finally he agreed to step down.
So although lawyers are not necessary at every inquest, in some situations it is clearly in the interests of justice for the families to be represented. At the INQUEST Lawyers Group, we are calling on the government to make legal aid available to all bereaved families (irrespective of their financial situation) for state related deaths.
Legal aid should also be available to families when, without legal representation, they are unable to effectively participate in the inquest. This applies to the inquest of Nicholas Harry’s son. It would have been inappropriate – if not inhumane – to require Nicholas to review detailed medical evidence, including graphic and distressing post mortem evidence about his son and to question witnesses personally, including the very people who may have caused his son’s death who themselves have the right to refuse to answer questions which may incriminate them. With no criminal proceedings, this was Nicholas’s only opportunity for it to be recognised that his son was unlawfully killed and it can’t be right to expect a grieving father to act alone.
There is currently limited legal aid available for some bereaved families, but the application process is long and intrusive, requiring detailed financial information to be provided, and it is only if the Legal Aid Agency thinks the narrow criteria are met, that the family will be granted legal aid. It is possible for the financial eligibility limits to be waived, but sadly many bereaved families are not told this so think legal aid would never be an option.
The reality for many bereaved families is that their only option is to pay for lawyers themselves - even if, like Nicholas, it means going into debt.
Many these days turn to crowdfunding and other forms of fundraising to meet the costs and many lawyers strive to offer affordable options for their clients. In some circumstances where a bereaved family have grounds to, and want to, bring a claim for compensation arising from the circumstances of the death and that claim is likely to have a significant financial value, they may be offered a no win no fee agreement which covers representation in an inquest, but this is rarely available if the loved one who died did not have financial dependents or was not the family breadwinner.
As Nicholas says, the last thing bereaved families need to be thinking about is how to afford lawyers for a process they are going through at no fault of their own, while grieving and often having had to fund an unexpected funeral. That is why many, including me, are currently calling for the Government to extend the legal aid available.