On 19 July 2018, the Ministry of Justice (MOJ) announced a review into legal aid funding for inquests. In the review foreword, Lucy Frazer (Parliamentary Under-Secretary for Justice) recognised the importance of inquests in "helping the bereaved to understand and make sense of their loss as well as ensuring that there is proper accountability". 

Coroners are obliged to investigate deaths in certain circumstances (where the death was violent or unnatural, the cause of death is unknown and/or the death occurred in custody or state detention). The MOJ's review document states that 31,519 inquests were opened in 2017, but does not make clear how many applications were made for legal aid for those inquests (nor what proportion of such applications was successful). 

Our experience, from advising and representing bereaved families at inquests, is that legal aid is extremely difficult to obtain. Applicants have to pass both a 'merits test' (satisfying the Legal Aid Agency that the case falls within Exceptional Funding Guidance for inquests) and a 'means test' (to confirm that their income and assets fall below a certain level).

The MOJ's review document acknowledges that many are critical of the current availability of legal aid for inquests and that bereaved people may be denied "equality of arms" with State agencies. The State can afford to pay for legal advice and representation (and commonly does). 

Bishop James Jones was one such critic, in his review report regarding the Hillsborough Disaster. He called for bereaved families to be allowed to properly participate in inquests and for non-means-tested legal funding to be allowed. The Chief Coroner for England and Wales has also suggested that funding for legal representation could be awarded for relatives where the state has agreed to provide representation for others involved in the inquest.

The Exceptional Funding Guidance (Inquests) makes it clear that legal aid won't be available for inquests involving only allegations of "ordinary medical negligence", rather than failings of a systemic nature. Yet, as the MOJ's review document rightly states, NHS trusts may often have access to specialist legal advice prior to and during any inquest.

In our view, this situation should not be allowed to continue and we hope that the MOJ's review will prompt a change in policy. However, it is far from certain that it will do so, particularly as the document suggests that "only a small minority" of inquests might require legal representation. If this remains the Government's stance, then many individuals will continue having to navigate the inquest process without the support they need.