Exceptional Inquest Funding Left To Incoming Government
It may not be quite at the top of the in-tray for whoever is Prime Minister after Thursday, but exceptional inquest funding will need some attention after the voting is over.
In February this year Joanna Letts successfully challenged the decision of the Legal Aid Agency not to grant her funding for representation at the inquest concerning the death of her brother, Christopher Letts [R (on the application of Joanna Letts) v The Lord Chancellor  EWHC 402 (Admin)]. The background facts were that Ms Letts’ brother had suffered a long history of severe mental illness and was well known to NHS services having been sectioned under the Mental Health Act 1983 (MHA) on several occasions. In August 2013, Christopher Letts was allowed to discharge himself from a mental hospital although no community care programme had been arranged prior to his discharge. On 19th August, two days after his discharge, he committed suicide.
In the context of a factually complex inquest where the other five Interested Persons were legally represented, the refusal to grant Ms Letts funding was striking. The focus of Ms Letts’ application for judicial review were the criteria applied by the Legal Aid Agency (LAA) to determine whether the relatives of deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which might engage Article 2 of the ECHR. Her challenge specifically concerned the lawfulness of the “Lord Chancellor’s Exceptional Funding Guidance (Inquests)” (“the Guidance”) promulgated under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
In the Guidance the Lord Chancellor identifies two steps that a caseworker facing an application for legal aid to cover representation at an inquest must take in order to grant legal aid. The first is that the case must fall within Article 2 and the second is that representation of the next-of-kin must be necessary to enable them to be properly involved in the inquest. The argument in the High Court concerned the first step and the attempt by the Guidance to define the ambit of an Article 2 case.
It does this by directing the LAA to investigate whether there has been an arguable breach by the state of the obligation in Article 2. Ms Letts argued that the way in which the first step had been framed in the Guidance reflected an error of law as to the scope of Article 2 ECHR, or at the very least is materially misleading, and that in practice any caseworker following the Guidance would impose too high a hurdle upon an applicant for legal aid and would therefore be inclined to refuse legal aid where otherwise it would, and should, be granted.
It was submitted (i) that there are categories of Article 2 case where for the investigative duty to arise there needs first to be an arguable breach by the state of the substantive obligations; but (ii), that there is also a significant category of cases where if the basic facts of the case fit within a category of case to which Article 2 can in principle apply the investigative duty arises automatically and without there being a need to establish even a hint of culpability on the part of the state. It is argued that the Guidance by failing to even identify this category of case simply did not reflect the law and wrongly treated all Article 2 cases as requiring evidence of arguable breach by the state.
It was further argued that this was not a technical dispute simply about eligibility to legal aid. The right for the next-of-kin to be involved, in an appropriate case through legal representation at an inquest, is itself a right conferred under Article 2 ECHR and that if therefore the LAA refuses legal aid this can result in the State being in breach of its duties under the Convention.
The High Court accepted these arguments. Mr Justice Green found that the essential thrust of the Guidance conveyed to the typical caseworker that in every case where legal aid was sought the caseworker had to make an assessment (leading to a decision) of whether the state was arguably in breach of the underlying substantive obligation (whichever one it was) and that only if the conclusion was that there was such an arguable breach would the caseworker then proceed to decide whether on the facts of the case there was a need to give the next- of-kin legal aid.
He held that the Guidance purported to set out an accurate general description of the law but in the absence of a clear recognition that there is a category of case where the investigative duty arises quite irrespective of the existence of arguable breach by the state it was materially misleading and inaccurate. The effect of this ruling may well be felt widely and particularly in the healthcare context. It is likely that further guidance will be issued which will lower the threshold of eligibility for funding to cover cases that engage the procedural duty element of Article 2. This will have the knock on effect of increasing representation for families resulting in lengthier and more costly inquests in the future.