In Letts, R (On the Application Of) v The Lord Chancellor & Anor [2015] EWHC 402 (Admin) Mr Justice Green considered the Lord Chancellor’s Guidance on Exceptional Funding (Inquests), which is statutory guidance to caseworkers considering applications for exceptional funding for representation at inquests. After considering carefully the content of the guidance in light of the obligations of the state under Article 2 ECHR, and reviewing the law relating to Article 2 Green J concluded that: ...the typical caseworker would find the conclusion that he or she had to take a decision, based on actual evidence that the State was arguably in breach as a precondition to a consideration of need, an irresistible one. References to arguability of breach as the lynchpin of the right to funding permeate the entire Guidance. There is no reference to there being any other possible test or to there being exceptions to this rule. Indeed, it is explicitly said that the procedural obligation arises (in a narrow range of circumstances) "only" (cf para [9]) where evidence suggests an arguable breach by the state. There is hence no room on the basis of the Guidance for the possibility that the duty might arise in other circumstances not involving arguable breach.

Further some of the circumstances where the law, quite clearly, lays down that breach is irrelevant (e.g. deaths in custody) are explained and analysed in terms of the probability of the evidence leading to a conclusion of arguable breach. He noted: The case law thus quite clearly recognises a legal right for the next-of-kin to be involved to protect "legitimate interests"; and the analysis of purposes and objects above informs what those interests may be. The right to legal aid flows directly from this recognition since in many cases if it were not available the right to involvement would be rendered nugatory and the purpose behind Article 2 thwarted by a decision of the state. And so: I have set out at paragraph [54] above my analysis of the Guidance and as to the extent to which it rests upon a test of arguable breach. For the reasons that I have set out above in my judgment this contains a number of errors.

First, the Guidance indicates that there is but one trigger for Article 2, namely evidence of arguable breach by the State: See, e.g. para [54(iv)] above. This is incorrect in that case law identifies a variety of circumstances and types of case of real public importance and significance where the duty arises independently of the existence of evidence of arguable breach.

Secondly, where the Guidance refers to case types where the test may be modified (for example in the case of death in custody) it persists in articulating the test upon the basis of arguability of breach. Since these case types include cases where the law now makes clear that the duty can arise automatically the reference to the arguability test is wrong in law: See para [54(vii)] above.

Thirdly, and related to the first two errors, is the failure even at a broad level to acknowledge the existence of cases where the test is other than arguability Green J therefore concluded: The test is hence: Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts? In my view for the reasons already given the Guidance would do all of these three things. The "unlawful act" being a refusal of legal aid where it was required, or a failure to consider the right legal basis for determining an application. Comment This case comes after Gudanaviciene & Ors, R (on the application of) v The Director of Legal Aid Casework & Ors [2014] EWCA Civ 1622, in which the Court of Appeal found the Guidance for non-inquest cases to be unlawful because it was too restrictive (see our post). Although they are concerned with different types of cases, there is a common theme - the guidance for both inquest and non-inquest cases has been drawn too narrowly, based on wrong or at least too strict interpretations of the law, with the result that exceptional funding has been considered too restrictively. It should be a matter of considerable embarrassment to the Lord Chancellor and MoJ that both sets of statutory guidance are wrong, unlawful and fail to ensure that exceptional funding is available in cases that meet the s10 LASPO requirement. s1 LASPO says that "the Lord Chancellor must secure that legal aid is made available in accordance with" the Act. It is hard to reconcile that duty with the systematic issuing of Guidance which fails to secure that legal aid is made available in accordance with s10.