Legal Aid:  “A system designed to make sure that those who are most vulnerable, and who have no other means of funding or support, are provided with legal assistance.” (MoJ).

Well, that’s the idea anyway. 

The ‘Legal Aid Agency’ (LAA) is responsible for managing this system which is governed largely by the Legal Aid, Sentencing and Punishment of Offenders Act 2013 (LASPO).  In 2013 LASPO took legal aid away from areas of law, such as divorce and child custody, overnight.  I am an inquest lawyer.  Legal aid for inquests is not within the scope of LASPO.  Instead, bereaved families rely on a separate pot of money - the appropriately named ‘Exceptional Case Funding’ (ECF) - for public funding and representation at their loved one’s inquest.

There are complex rules and regulations governing provision of ECF, including a means and merits test.  To pass the merits test, the inquest must engage Article 2 (the right to life, as set out in the European Convention on Human Rights) or have a Wider Public Interest aspect.  For the means test, families must prove they are financially eligible which, in some circumstances, results in the LAA requesting a contribution from them towards inquest costs. 

When the strict criteria for ECF is not met, families often struggle to scrape together funds from savings, relying on lawyers acting pro bono or even resorting to crowdfunding to pay for a lawyer.  Meanwhile, public authorities don’t have the same concern.  Authorities, ranging from police to the prison service and NHS Trusts, are guaranteed funding for experienced lawyers, at the taxpayer’s expense.  Statistics published this week show that the MoJ spent £4.2 million on lawyers for prison officers at inquests in 2017, whereas only £92,000 was spent on legal aid for bereaved families.   This is not equality of arms. 

So why do families need lawyers at inquests?  Well, without a lawyer, families would be expected to turn up to court and understand the complexities of inquest law ranging from what the engagement of Article 2 would mean for the inquest, to witnesses and what ‘disclosure’ (evidence relevant to the death) is and that they are entitled to it in most cases.  This is a complex legal process which they are expected to tackle whilst grieving for the loss of someone they love, sometimes in traumatic circumstances.  Easy, right?  This is the reality of facing an inquest without a lawyer. 

I was instructed by a bereaved family where there was police involvement in the death, but Article 2 was not engaged.  We were refused ECF funding for the final inquest;  the police were fully represented by an experienced legal team.  My client was particularly vulnerable and the death particularly traumatic, as a result of suicide.  This family were simply unable to question witnesses and make complex legal submissions at the final inquest.  In fact, they were so distraught during the process that the inquest had to break on many occasions.  We thankfully managed to find a barrister to attend the inquest pro bono and a charity agreed to fund our client’s expenses for attending the inquest, but this should not be the norm.  It should not be down to kindness of Counsel and charity donations to ensure bereaved families are properly supported through the inquest process. 

This year, following numerous reviews of legal aid for bereaved families, the Ministry of Justice finally published its own review.  Amongst other things, lawyers and families hoped that the review would recommend non-means tested ECF for families where public authorities are also involved in inquests.  Disappointingly, the review failed to make these recommendations and barely scratched the surface of the issues surrounding funding at inquests.  So families continue to have to fight for legal aid.

This year, the charity INQUEST launched a new campaign: ‘Now or Never! Legal Aid for Inquests’ calling for families to receive non-means tested ECF.  The campaign is critical.  Families must be given a voice at their loved one’s inquests. 

At Broudie Jackson Canter we have a long tradition of fighting for access to justice. As a firm we are committed to and will continue to support families through the inquest process despite the challenges of legal aid.