24th April 2019

Most people will never meet their local Coroner or indeed may have even heard of them. Perhaps you may have read a report in a local newspaper outlining the conclusion he or she reached following an investigation into the circumstances of someone’s death. Occasionally an investigation will receive more publicity when it involves multiple fatalities in a serious incident or accident or currently involves some celebrity.

Most deaths do not require such an investigation. Most are registered based on certificates completed by doctors where people have died of natural causes. An inquest is held where it is unclear how or why someone died. Obviously therefore there must be an issue that requires some investigation or determination. It can often require a very detailed consideration of factual evidence or documents and complex technical or medical evidence. It will always be very emotive. This is even more so when someone has died while being detained by the state, for example in the care of a specialist hospital or home in accordance with the Mental Health Act or in a prison.

Figures released by the Ministry of Justice recently revealed that it spent £4.2 million in 2017 on legal representation for the prison and probation service at inquests. Grieving families received £92,000 via the Legal Aid Agency exceptional funding scheme. The disparity is likely to be even higher since the figure does not include private prisons, healthcare providers or the NHS as they have their own representation.

One of the basic principles of our justice system has always been to strive for an equality of arms between all of those involved.  Of course, in the adversarial civil court this has never been achieved. The rich man can afford to pay for his expensive lawyers without regard to the cost and the outcome. The Courts have long struggled to keep those costs down. Recent reforms have had a modicum of success in that area. The recent vast cuts to the availability of and eligibility for Legal Aid in the Civil Courts has further undermined the principle.

The Coroner’s Court is different. It is not adversarial. The Coroner conducts the investigation, he or she decides the scope, the evidence required and the witnesses to be heard. Can it be right that when the state is involved in that investigation it is represented by lawyers paid for by the taxpayer and yet the grieving family must generally go on their own or rely upon help from charities such as Inquest or AvMA? The figures show just how unequal the assistance is in most cases. This does not just apply to deaths in custody it applies to most investigations involving the NHS or even where one party is represented by an insurer. For example, the only parties whose legal representation will not be paid for at the forthcoming investigation into the Shoreham Air show crash will be the families of the eleven victims. How can that be right?

The government’s answer to the disparity is that the Coroner’s role is not adversarial but inquisitorial and therefore the families do not need representation. If that is the case why does the NHS, the prison service and any other department whose conduct is called into question need their expensive lawyers? They also claim that they are doing more to revise the information available to families. Regrettably in my experience a leaflet or page on Gov.UK is not much solace or comfort to a grieving relative sitting in court surrounded by lawyers and those who may have been involved in the events leading to the death. Coroner’s and their officers do all they can to assist and prepare families for the experience. So often the family member who has been asked to represent them falls silent when asked if they have any questions for the witness or struggles to ensure that all the relevant documents, questions and issues are raised.

Is there a solution to the apparent disparity? Clearly relying upon the Legal Aid Agency exceptional cases funding scheme does not work. The recent parliamentary debate upon the issue was told that steps are being taken to make the application for such funding simpler. Without an increase in the funding that will achieve little. Perhaps the Coroner ought to be given powers to require these state bodies to fund representation for families if they choose to be represented themselves. That might make them think twice in routine cases. Should a publicly funded representative be available for families when the Coroner decides the investigation warrants this? Any solution requires more funding and that is unlikely. In the meantime, most families continue to have to face the intense stress of such hearings alone.

Blog by Peter Henry, Consultant