Making inquests fairer
.
.
.
Marc Bloomfield
Description: LAG 50 Years
In LAG’s 50th year, Professor Leslie Thomas QC reflects on how things have improved for bereaved families at inquests, but why we must not be complacent.
There are some people – and, indeed, institutions – who have a scarcity mentality: a belief system which holds to the view that if I share what I know with you, there will be less for me, and therefore I lose and you gain. This is the classic win/lose mindset. Then there are those who hold the opposite belief system, namely an abundance mindset: if I help you, there will be more for everyone and everything will be improved for all. There can only be win/win. LAG as an institution encapsulates this more generous view of the world beautifully. All of its writers and contributors from the past five decades collectively recognise that we improve the legal system, and ultimately those we represent, by standing on the shoulders of those who came before us and sharing the knowledge we have gained over the years, thereby paving the way for the next generation of lawyers to do the same for their clients.
Description: LAG at 50 Inquests books
It is really hard to believe that LAG has been going for 50 years. During that time, it has done amazing work in educating lawyers with developments in the law. For me, Legal Action has been the go-to journal for keeping up to date and relevant in the fight against injustice. I think this is epitomised in the area of law in which I practise: inquests. I started doing this work in the 1990s and it should be remembered that this was a time when there was no legal aid for advocacy at inquests. In the preface to Inquests: a practitioner’s guide, I describe what it was like doing my first inquest and the lack of knowledge I had because it was difficult to find.1Leslie Thomas, Adam Straw and Danny Friedman, Inquests: a practitioner’s guide, 2nd edn, LAG, 2008, pages x–xi; reproduced in 3rd edn, LAG, 2014, pages x–xi. Well, LAG certainly filled that gap in this area, as it has done with so many others. In this regard, it is important to thank my fellow contributors to the inquests law and practice articles and co-authors of Inquests: a practitioner’s guide, including Louise Christian, Danny Friedman QC, Adam Straw QC, Daniel Machover, Tom Stoate and Helen Stone – exceptionally talented people who have always been willing to share their knowledge and expertise.
I strongly believe that if deaths are not properly investigated, then the authorities cannot be held to account and democracy is threatened. And if deaths are not investigated, we are not a society that values human life. But we cannot begin to provide our clients with the due process and reparations they deserve if we are unskilled in our understanding of the law.
The impact and importance of the Human Rights Act 1998
What stands out from the many recurring themes that we have touched on over the years is the importance of the state carrying out timely investigations into suspicious deaths. So that evidence is not lost, and memories don’t fade. So that families can have answers without having to wait for years. So that those investigations are done properly and fully.
It is also crucial that our clients have equality of arms, that the parties should be starting on a level playing field. The bereaved family should have the same opportunity to participate in the proceedings, put forward evidence and arguments, and question witnesses as is given to the agents of the state involved in the death. Equally important is the provision of adequate disclosure of the evidence in the possession of state agencies.
Description: LAG at 50 Inquests articles image 1
As is clear from the articles in Legal Action over the years, it was not until the passing of the Human Rights Act 1998 (HRA) that we even came close to achieving some of these legal ambitions – sadly, many of the above expectations were not met by inquests. I remember the days in the 1990s where you would arrive at court with only a back sheet and no disclosure on a death in custody case. There is no doubt that there has been a vast improvement from those times.
But before the HRA, there was no right to legal aid, there was a lack of fairness, there was no right to disclosure, and there was no equality of arms between the different interested persons in an inquest. Further, the scope of the inquest was narrow and lacked proper scrutiny of state power.
The situation has changed over the past few decades, primarily because of the incorporation by the HRA of the European Convention on Human Rights (ECHR) directly into English law. The jurisprudence has established that ECHR article 2 – the right to life – is not simply a right not to be killed; it also imposes positive obligations on the state. Additionally, it has established that equality of arms means procedural fairness, that the participants in the inquest should be starting on a level playing field, that they should each have the opportunity to call witnesses and question the other’s witnesses. In short, neither should be put at a procedural disadvantage. Bereaved families in inquests have also now been given a right to disclosure of key documents under Coroners (Inquests) Rules 2013 SI No 1616 r13.
Another way in which the HRA has brought greater equality of arms in inquests is through the provision of legal aid. Prior to October 2000, there was no legal aid at all for inquests. When a bereaved family has no legal aid, this can be devastating for them at such a sensitive time. A family member quoted in the charity INQUEST’s February 2019 briefing on legal aid said:
We had to do everything ourselves. We had no lawyer at the inquest. Those three weeks were the most terrifying thing I’ve ever done in my life. I had to cross examine witnesses, it was absolutely terrifying, and they had lawyers. There needs to be a level playing field; a family member should never be put through that.2Now or never! Legal aid for inquests, February 2019, page 6.
Contrast this with the seemingly unlimited funding to which the state has access. Expensive lawyers, large teams and resources. And as has often been said, state institutions are usually concerned with protecting themselves from reputational damage and civil liability – we have seen this many times, from Hillsborough to Grenfell.
So, in virtually every case, the institution implicated in the death will be represented at the inquest, but the bereaved family of the deceased are often not legally represented at all.
Description: LAG at 50 Inquests articles image 2
From November 2001, the lord chancellor, under the Access to Justice Act 1999, began to fund legal representation at inquests. This measure was to bring them in line with the UK’s obligations under the ECHR. The position was improved by the case of R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129; [2004] 1 WLR 971; May 2004 Legal Action 14, in which the Court of Appeal held, exceptionally, that the lack of legal aid for the bereaved family of a child who died in hospital had breached the state’s obligations under article 2.
From 1 December 2003, Community Legal Service (Financial) Regulations 2000 SI No 516 (as amended) reg 5C gave the lord chancellor power to waive the means test. From then on, families could – exceptionally – get legal representation at an article 2 inquest. Accordingly, the system improved. It is still far from perfect, and arguably the provision of legal aid could go further, but there was a definite improvement compared with the pre-HRA position. Today, an article 2 inquest is more expansive and fairer than a normal (domestic) inquest, and is the primary means by which the state carries out its investigative obligation. None of this would have been possible without the HRA.
Before the HRA, the families of the deceased had few rights in an inquest. They had no automatic right to disclosure and no access to legal aid – while the institutions responsible for the death were often represented by a high-powered legal team. The jurisprudence of the European Court of Human Rights, and its implementation in the UK, has helped to put bereaved families and the state on a more level playing field. But the progress that has occurred would not have happened without the HRA.
The future
Inquests are very different today from how they were when I started doing them in the 1990s. But we have to be so guarded against complacency. There are still deaths of vulnerable children, prisoners, women (from a failure of the state to protect them from abusive partners) and Black people (disproportionately at the hands of the police). There is much further to go. With LAG leading the way, I hope the next 50 years will bring about even more equality and justice for the clients we represent.
 
1     Leslie Thomas, Adam Straw and Danny Friedman, Inquests: a practitioner’s guide, 2nd edn, LAG, 2008, pages x–xi; reproduced in 3rd edn, LAG, 2014, pages x–xi. »
2     Now or never! Legal aid for inquests, February 2019, page 6. »

About the author(s)

Description: Leslie Thomas QC - author
Professor Leslie Thomas QC is a barrister at Garden Court Chambers, London, and Professor of Law at Gresham College, London, and Visiting Professor in...