When someone dies unexpectedly, in a violent way, or the cause is unknown, the coroner may decide that an inquest is needed. An inquest is led by a coroner, and is a court hearing which investigates the circumstances surrounding a death to determine the cause. An inquest is not able to determine civil or criminal liability and is designed to be an investigative process to get to the heart of who, when, where and how someone died.
Legal aid or public funding, which is legal representation paid for from the public purse, can be a critical factor in helping families through the complex and emotionally challenging nature of inquests. Most people have never had to navigate a legal hearing before and must do so during a very distressing time, having lost a loved one in awful circumstances.
Families involved in inquests are usually denied legal aid, even if the other parties involved have taxpayer-funded legal representation, such as NHS trusts.
There are occasions when legal aid is provided when someone dies in prison, police custody, or in certain circumstances in hospital, for example, if Article 2 of the European Convention on Human Rights (ECHR) is engaged. Article 2 is the ‘Right to Life’. However, even if a family can obtain exceptional public funding in these very limited circumstances, sometimes they are still asked to make a financial contribution to that funding from the State and often the amount of funding awarded is so small that it barely covers the fees of a barrister. Often the solicitor instructing the barrister may still have to work pro bono or for free to ensure that family can be represented. Even if someone has died whilst in the care of the state, sometimes Article 2 is not engaged and therefore the family are left with no funding.
The state will always be given funding to appoint their own lawyers in inquests of this kind and so it is a very one-sided situation for families to face. APIL has been calling for an end to this one-sided situation. The lack of provision of legal aid for ordinary families simply does not provide access to justice.
Without legal representation, families are on their own. In some cases, they will be left to review reams of documents which may include distressing information about their loved one’s death. This cannot be right. Grieving families with limited legal knowledge cannot be expected to know which evidence to challenge and what important questions to ask.
While the coronial process is designed to be inquisitorial, and many coroners perform their role and duties to a high standard with care and compassion, sadly, that is not always the case. Some APIL members have complained that on occasions, some coroners can be more dismissive and shut down questioning.
It is not fair that families cannot get the same publicly funded legal aid as the bodies and organisations who may hold the key to finding out how their loved ones came by their deaths.
No family should be priced out of justice, or find the truth too expensive to secure.
It is of benefit to society as a whole for inquests to find the truth and establish how someone came by their death, to ensure that any mistakes are not repeated. In a case where a hospital patient has died due to negligent treatment, for example, the right questions need to be asked and conclusions made so that lessons can be learned.
The Government has recognised the problem and has committed to improving access to legal aid for families. It has said: “We will take action to improve assistance for bereaved persons and core participants at inquests and public inquiries, to ensure families are able to fully participate. This includes delivering the Government’s manifesto commitment to provide legal aid for victims of disasters or state-related death.” This is indeed encouraging news and we hope this action happens soon. For now, we wait.
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