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Supreme Court sketch by Isobel Williams, www.isobelwilliams.blogspot.co.uk

The guidance issued by the Lord Chancellor to determine whether families should be granted public funding for legal representation at inquests has been ruled unlawful by the High Court. Mr Justice Green found that the guidance was ‘materially misleading and inaccurate’ and would direct the Legal Aid Agency (‘LAA’) to unlawfully refuse to grant funding to bereaved families at inquests.

The ruling was welcomed by the charity INQUEST and the Equality and Human Rights Commission, which intervened in the case against the Lord Chancellor. The case was brought by Joanna Letts, whose brother Christopher Letts died after jumping in front of a train in August 2013, three days after being allowed to leave hospital despite being admitted as a psychiatric patient and expressing suicidal thoughts.

Mr Letts’ family were originally refused legal aid to fund representation at his inquest, but after this challenge was brought the LAA agreed to grant legal aid. Nevertheless, the case proceeded due to its ‘potential wider implications’ if the Lord Chancellor’s guidance to the LAA was found to be unlawful.

Equality of arms
In order to obtain legal aid for representation at an inquest, families have to apply to the LAA for ‘exceptional funding’. The Lord Chancellor’s guidance on exceptional funding for inquests states that ‘funding for representation at an inquest is not generally available because an inquest is a relatively informal inquisitorial process, rather than an adversarial one’.

Anyone who has attended an inquest where the conduct of the state is in question may dispute this description, for inevitably any public body will be represented by experienced and expert lawyers. As Deborah Coles of INQUEST said in the wake of this case: ‘The government perpetuates the myth that inquests into deaths in state care or custody are informal hearings where grieving families can be expected to represent themselves, and yet these are complex inquests where they come face to face with state lawyers paid by public funds, there to defend their policies and practices’.

The principle of equality of arms should dictate that, where the state engages lawyers to defend or justify its own conduct, the bereaved family of a person who died at the hands of the state should also be provided with publicly funded legal representation to thoroughly examine allegations of wrongdoing. This judgment does not go that far, but it does open the door for further cases to explore the circumstances in which legal aid should be granted for families at inquests.

The right to life
Article 2 of the European Convention on Human Rights (‘ECHR’) provides that everyone’s right to life shall be protected by law. The UK was one of the first countries to ratify the ECHR in 1951 and incorporated (most of) the Convention into domestic law through the Human Rights Act 1998.

The courts – both at home and in Strasbourg – have held that the right to life imposes duties on the state to: (i) refrain from taking life, save in exceptional circumstances; (ii) conduct a proper and open investigation into deaths for which the state might be responsible; and (iii) protect life in certain circumstances. It was the second, investigative, duty which was the subject of this case, and the extent to which Article 2 requires the family of the deceased to be legally represented at the inquest in order to protect their legitimate interests in the process.

The courts have recognised that ‘the right of a next-of-kin to be involved and where necessary represented is not limited to showing that the state is culpable’. Indeed, the family may simply wish to discover the truth, want lessons to be learned or wish to obtain peace of mind that suspicions or allegations of state complicity in their loved one’s death are unfounded. Legal representation at an inquest can help to achieve any of these objectives and in doing so bring some comfort to grieving families.

Jumping through hoops
In order for funding to be granted for representation at an inquest, the LAA must be satisfied that the case falls within Article 2 and that representation is necessary to enable the family to be properly involved in the inquest. As Joanna Letts’ solicitor, Saimo Chahal QC of Bindmans, said, families ‘have had to jump through hoops to get legal aid in inquest cases’ – despite the certainty that public bodies will instruct lawyers to attend such inquests.

It was argued in this case that the Lord Chancellor’s guidance was incorrect or at least misleading as to the scope of Article 2. The guidance stated that the LAA ‘should first be satisfied that there is an arguable breach of the state’s substantive obligation [to protect life] under Article 2 ECHR’ and then decide whether publicly funded legal representation is required to satisfy the investigative duty.

Incorrect and materially misleading guidance
However, the court held that there are certain categories of case where it is recognised that the investigative duty under Article 2 arises automatically. The precise limits of these categories of case are not yet clear, but include killings by state agents (e.g. the police), the deaths of prisoners and people detained under the Mental Health Act and, now, the deaths of psychiatric patients. In these circumstances, the investigate duty is triggered automatically due to the fact that such individuals are under the care and control of the state.

The Lord Chancellor’s guidance did not reflect this, as it required the LAA to conclude in all cases that there was evidence of an arguable breach of Article 2 by the state before legal aid could be granted. The guidance was therefore incorrect and materially misleading, as case law has identified a variety of circumstances in which the investigative duty under Article 2 arises automatically, independently of evidence of arguable breach.

As it was itself predicated upon legal errors, the guidance would lead to, permit and encourage unlawful decisions by the LAA to refuse public funding to bereaved families for legal representation at inquests. The court recognised that this judgment may have ramifications ‘for other scenarios which might engage Article 2’, but those will be for the Lord Chancellor or other cases to resolve.

Commenting on the judgment, Joanna Letts said: ‘This is a really fantastic result and I am so pleased that I have done something which will help other grieving families to get representation to secure accountability and to find the truth. I could not have hoped for more. I wanted to do this for my brother and others who have lost someone they loved dearly.’