Coroners’ InquestsPublished on: 24 May 2019
The Coroner Service is at least 800 years old and has recently undergone significant changes. It is a public service to find out the cause of a death that has been reported to them. Coroners investigate the death in order to explain how, when, where and in what circumstances it occurred. In relevant cases, they will make a report to prevent a future death occurring in similar circumstances. It is also for bereaved families and the wider public good, learning lessons for the health and welfare of others.
However, paying for legal representation in connection with an inquest is a major problem for many bereaved families. The government claims that legal representation is unnecessary for most inquests, probably because of its investigative rather than adversarial nature and the fact that the deceased’s family are unlikely to be responsible for the death.
Is it possible to get legal aid for an inquest?
Legal aid is only available, in theory, for “exceptional cases”, which are defined as (1) if there is a human rights issue and (2) a wider public interest in the inquest. A human rights issue usually arises where the death has potentially been caused by the state, for example, a death in police custody. However, the number of cases falling within either of these two categories is very low and legal aid is also subject to very restrictive means-testing, meaning that legal aid is frequently unavailable. Another type of legal aid - “Legal help” - is available before an inquest but it does not cover the hearing itself.
The lack of availability of legal aid for bereaved families was highlighted in several recent high profile inquests, including that relating to the 1974 Birmingham pub bombings. In that particular case, the bereaved families’ application for legal aid was rejected and they had to resort to last minute crowd-funding in order to fund their legal representation at the inquest.
It may sometimes be possible to obtain free legal representation but this is unlikely to be available in the majority of cases.
If there is a civil claim for compensation, the bereaved family’s legal representatives may be willing to act for the family in the civil claim under the terms of a Conditional Fee (“no win, no fee”) Agreement. As part of investigating the civil claim it is often reasonable to instruct lawyers to attend the inquest to ask questions and obtain evidence relevant to the civil claim, and the legal costs can be recoverable in the civil claim from the defendant who is alleged to have caused the death.
However, obtaining funding to pay for legal representation remains a frequently insurmountable problem for bereaved families, leaving them with no option but to represent themselves, at what can be a traumatic and complicated inquest hearing.
The unavailability of legal aid for inquest hearings, and the lack of other funding alternatives, is a very real problem for bereaved families and lawyers who represent them. Often, the other parties at the inquest are legally represented but the family is not, which seems very unfair.
The benefits of having legal representation at an inquest hearing
There is a substantial benefit in having legal representation at the inquest hearing, as well as legal advice during the inquest process. It can help to take some of the stress out of the hearing itself, and appropriate legal advice prior to the hearing can assist the family to navigate its way through the disclosure process.
There is now a general right to disclosure of evidence prior to the hearing and legal representation can assist with important matters such as identifying and agreeing (with the other parties and the coroner) relevant documents and other evidence for use at the hearing, agreeing which of the witnesses and experts will be called to give oral evidence, and deciding whether or not a site visit will be necessary. These issues – and others – may be considered and determined by the coroner, with input from the parties’ legal representatives, at one or more preliminary hearings, before the inquest itself takes place. The legal representative may need to liaise with the health and safety executive before the hearing if the death occurred as a result of an accident at work, or assist with compiling bundles of evidence for use at the inquest hearing. The whole of the inquest process can be upsetting for the bereaved family, including the receipt of witness statements containing sensitive information about the accident or death, post-mortem reports and photographs.
Families are usually unfamiliar with the inquest process and unused to advocacy. The coroner may decide that a jury is required, adding a further dimension and complication to the hearing.
Having an experienced legal representative at the inquest hearing should help to ensure that all of the relevant evidence is explored and that appropriate questions are put to the witnesses and any experts. It may be necessary for the legal representative to put questions to doctors, or other medical personnel.
One of my own clients, for whom I was able to arrange legal representation at an inquest hearing into the death of her husband, told me afterwards, “The inquest was such a daunting and horrendous experience, if I did not have legal representation I would have definitely been bullied by the opposition. The advantages helped me understand the ‘legal jargon’, the way the coroner operates and, most importantly, to have a full investigation into the death of my husband”.
Funding for legal representation needs further improvements
The charity, Inquest, has recently revealed new figures which show that, in 2017, the Ministry of Justice spent £4.2m on legal representation for the prison and probation service, as opposed to the £92,000 granted to bereaved families through the Legal Aid Agency’s exceptional funding scheme. Why should doctors, police officers, government departments and insured defendants have representation, often from senior counsel and experienced solicitors, and their legal costs fully funded and bereaved families are left to their own devices? This is clearly a dreadful and continuing injustice for grieving families who deserve legal representation at inquests. Despite the recent significant changes to the coroner service brought about by the Coroners and Justice Act 2009 (which came into effect in July 2013), it is clear that much still needs to be done to improve funding for legal representation throughout the inquest process. It is about fairness and equality.