In July 2018, the Ministry of Justice announced that it would review legal aid funding for inquests, acknowledging that many were critical of its limited availability. One such critic was Bishop James Jones, who carried out a review into the Hillsborough disaster.
Bishop Jones called for legal aid to be granted (without means testing) to bereaved families for representation at inquests where the state was itself legally represented. However, the Ministry of Justice has rejected this in its final report, issued in February 2019.
In its foreword to the report, the Ministry of Justice states that:
"The Government is determined to ensure that bereaved families are properly supported and able to participate in the inquest process. This includes providing legal aid in cases where it is most needed."
Implicitly, the Government's rejection of Bishop Jones's call appears to be based on the idea that legal aid is not 'needed' for the bereaved in all cases where the state is legally represented at an inquest. Indeed, the Ministry of Justice appears to give credence to the idea that lawyers representing the bereaved may 'hinder' the process, "by making it more adversarial and legally complex".
The report appears to acknowledge that the instruction of lawyers by state agencies for inquests might have a similar effect. However, the Ministry of Justice suggests that reducing the number of lawyers that act for public bodies would present too many difficulties.
It is hard to escape the suspicion that cost will have played a major role in the Ministry of Justice's decision. Its report estimates that granting legal aid, without means testing, to all bereaved families where the state is legally represented at an inquest would result in an additional spend of between £30 million and £70 million.
The report does suggest that the Government will try to improve the experience that families have when dealing with the coroner's courts, including by:
- looking at ways to better ensure that guidance about the inquest process reaches those who need it
- exploring options to raise awareness and clarify eligibility for legal aid for inquests
- providing training for coroners and coroners' officers about various matters relevant to families and witnesses
- considering further options for the funding of legal support at inquests where the state has state-funded representation
Although the Government has rejected the proposal to allow non-means tested legal aid funding in every case where the state is legally represented at an inquest, this does not mean that applications for legal aid are bound to fail. According to the report, legal aid is 'likely' to be awarded where the deceased died in a "non-natural" way or as a result of suicide whilst being detained by police, in prison or in a mental health unit (as long as the applicant satisfies the financial eligibility criteria).
There is also a discretion to waive the financial eligibility limits for inquests if it would not be reasonable to expect the family to bear the full costs of legal assistance. The report suggests that in the majority of cases where the death occurred in custody, the financial eligibility limits would be waived. However, the bereaved applicant would still have to go through the process of providing detailed financial and other information before this could be considered.
Nonetheless, many will feel that an opportunity has been lost to help the majority of bereaved family members to more fully participate in the inquest process. Save for in limited circumstances, it will remain those who can afford to pay for legal assistance who will be able to access the representation they want (and in some cases badly need).
Government announces review of legal aid for inquests
The Government's final report
This material does not give a full statement of the law. It is intended for guidance only and is not a substitute for professional advice. No responsibility for loss occasioned as a result of any person acting or refraining from acting can be accepted by Russell-Cooke LLP. © Russell-Cooke LLP. February 2019.