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What
implications does the right to life have upon a family's
application for legal aid at an inquest?
There
are two cases that directly deal with this issue.
Khan
In
this case, it was held that in the particular circumstances,
the article 2 investigative obligation required funding
to be provided for the deceased’s family to be
legally represented at the inquest or at an equivalent
investigation.
The
case involved the death of a young girl in an NHS
hospital in circumstances giving rise to allegations
of gross negligence and of a possible cover-up by
the hospital Trust. There was an extensive police
investigation, following which the CPS decided that
no criminal proceedings would be taken. A coroner’s
inquest was then opened, but adjourned while efforts
were made to obtain legal funding for the deceased’s
family. The parents of the dead girl had been very
badly affected by events.
By
this point, the court said, "Two
and a half years had now elapsed since Naazish’s
death. By this time Mr Khan and his wife had withdrawn
into themselves. Mrs Khan had effectively become a
hermit, and Mr Khan was suffering from what was later
diagnosed as a psychiatric illness. He did not open
letters, and he allowed county court judgments to
be entered against him by default as a consequence.
He felt unable to deal with people. The junior post
he now held with his firm did not involve this necessity,
and his solicitor sometimes experienced difficulty
and delay in obtaining instructions ….”
As
a result the court ruled:
| 74 |
If
the public judicial investigation required by
Article 2 is to be an effective one … the
inquest will not be an effective one unless Naazish’s
family can play an effective part in it. The evidence
shows … that they are in no fit state to
play that part themselves. Although the function
of an inquest is inquisitorial, and in the overwhelming
majority of cases the coroner can conduct an effective
judicial investigation himself without there being
any need for the family of the deceased to be
represented, every rule has its exceptions, and
this, in our judgment, is an exceptional case
…. |
| 75 |
In particular, the evidence is so complex that
the coroner has enlisted the services of an independent
medical expert to assist him. The Trust and its
doctors and nurses will have the benefit of legal
representation at public expense, and the family
are likely to wish to explore the prospects of
a verdict of neglect and/or a report by the coroner
pursuant to Rule 43 of the Coroners’ Rules.
Mr Khan clearly could not manage this on his own.”
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The
court held that the state was required in those circumstances
either to provide reasonable funding in order to ensure
that the Khan family was represented at the inquest
or, if the Secretary of State lacked the power to
provide such funding, to set up some other type of
inquiry at which funding would be available
Challender
In
a case raising similiar issues - though it involved
a death resulting from the conduct of a non-state
actor - the judge in Challender, following
the same legal principles applied in Khan, that the
facts did not make it sufficiently exceptional so
that only if the family got legal respresentation
would the inquest be 'effective'. The judge stated:
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"In
this case which This is not a case of exceptional
factual or legal complexity. The CPS’s
letter of 25 June 2002 sets out very clearly
why it was considered that no unlawful act could
be proved. It is within the competence of the
coroner to consider those matters and to carry
out the necessary investigation without assistance
from legal representatives for the family. The
factual issues relevant to whether a third party
injected heroin into the deceased fall within
a limited compass. The difference in expert
medical opinion is on a relatively narrow point.
The legal position is reasonably clear: the
areas of potential complexity explored in the
Criminal Law Review commentary on Rogers, relating
to the limits of “active participation”
in a case where the deceased self-injects, and
to possible defences, do not appear to arise
on the facts but are capable in any event of
being dealt with by the coroner without legal
representation. An important additional consideration
is that the claimants will be able to obtain
advice and assistance under the Legal Help scheme,
which will cover the making of written submissions
to the coroner, and will be able to attend the
inquest themselves. All that they will be denied
through lack of funding will be legal representation
in the form of advocacy at the inquest. It does
not seem to me that the circumstances are such
as to place this case into the exceptional category
where legal representation is needed in order
to ensure effective participation by the deceased’s
family and an effective investigation. |
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The
present case is distinguishable from Khan in
a number of ways. The medical and factual issues
are not as complex. There is no additional dimension
of an alleged cover-up. The claimants do not
suffer from the personal problems or disabilities
of the claimants in Khan and there is no suggestion
that they will be unable to participate personally
in the inquest. It was known that other interested
parties were going to be legally represented
at the inquest in Khan. In any event the question
whether legal representation is needed in order
to ensure effective participation in the inquest
and an effective investigation is highly fact-sensitive,
and the decision reached on one set of facts
in Khan cannot determine the outcome on a different
set of facts in the present case. " |
Footnote
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R
(Khan) v. Secretary of State for Health [2003]
EWCA Civ 1129 Back |
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R
(Challender) v Legal Services Commission [2004]
EWHC 925 (Admin) Back |
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