Part II: new review into legal aid funding for bereaved families at inquests

The Ministry of Justice this month published its final report into their Review of Legal Aid for Inquests.

You can read our earlier blog posts here and here

The purpose of the review was to try to better understand the circumstances in which families may require legal representation to allow for a fair inquest process, and whether changes need to be made to current eligibility criteria. It also sought to identify measures to make inquests more sympathetic to the needs of bereaved families. 

Government seeks a “more supportive, accessible and effective inquest system”

The Government’s conclusion is that while the vast majority of inquests are inquisitorial and fair, there is a need to do more to ensure that inquests do not become adversarial, that coroners are fully in control of the process, that the behaviour of lawyers and advocates is as it should be and also that there is a need to improve guidance literature for those, particularly bereaved families, navigating the process. The emphasis is to be on finding facts and learning lessons not on apportioning blame. 

A range of changes are referred to in the report covering three areas, with the aim of improving the current legal aid process and fostering a more supportive system for families. 

Three key areas

  1. Initial contact and communication with bereaved family member 
  2. Legal aid for inquests
  3. The inquest hearing

Initial contact and communication with bereaved family members

The report concludes that bereaved families may face problems accessing information about the inquest investigation process and that there is scope to improve their accessibility to the written information available. 

MoJ commits to:

  • Improve the MoJ Guide to the Coroner Services and will consider with coroner’s offices other ways to distribute, publicise and make the new guide, which will be published in the spring, available. 
  • In light of the development last year of a two-sided leaflet for families whose loved ones died in police custody, to consider further leaflets for deaths in other circumstances such as in prison or a psychiatric hospital. 
  • Work to provide a separate piece of guidance literature for families, which will set out the legal aid system including existing definitions and criteria for funding in a way that is easy to understand. 
  • Develop better signposting of support services at coroner’s courts and making sure families know who is in the courtroom and what their role is.

Legal aid for inquests

Evidence from the review found that the system and eligible criteria for access to early advice and assistance (legal help) for all inquests and legal aid for representation at inquests (via the Exceptional Case Funding Scheme) (ECF) is complex and not easily understood by bereaved families. The report concludes that there needs to be improved clarity around eligibility criteria for legal aid and the types of cases where funding for families may be available.

The MoJ have also considered recommendations to expand the provision of legal aid for certain types of cases, such as death in custody cases and cases where the state are represented. However, they are not introducing non-means tested legal aid for inquests where the state is represented. They noted the financial implications of this would result in additional spend of between £30 million and £70 million. 

A number of commitments are made by the MoJ:

  • To make sure that providers of legal services for families are aware of how the current system works and explore options to raise awareness and clarify the eligibility process in provider funding packs. 
  • Provide separate guidance about legal aid to families. 
  • Review the ECF scheme to ensure it works as effectively as possible. 
  • Work closely with Government Departments to look at further options for funding of legal support at inquests where the state has state-funded legal representation. 
  • Review the thresholds for legal aid entitlement. 
  • Introduce a provision for the backdating of the legal help waiver, so that all legal aid payments can be backdated to the date of application should legal aid be subsequently approved.

The inquest hearing

The evidence gathered by the MoJ identified that there is an inconsistency in the approach and practice between coroners and the behaviour of legal representatives, both at hearings and during the inquest process. Evidence also pointed to inconsistency in the availability of support services in coroner’s courts and the need to consider improvements to the lay-out of the court and the provision of separate waiting areas and rooms for bereaved families. 

They considered, but rejected, the idea of “delawyering”, in particular those who represent the Government or other public bodies. They felt that there were difficulties doing this as it is right that for example, police or prison officers have representation where there is potential for their job to be at risk. They concluded, therefore, that there was little they could do to reduce the number of lawyers who represent public bodies at inquests but confirm they will keep it under review. 

Some stakeholders commented on families noting (or perceiving) a close working relationship between coroners and NHS staff, so that they were left feeling that, in cases of a death in hospital, the coroner’s sympathies were with the NHS. The MoJ concluded that it is not inappropriate for coroners to have contact with local organisations with whom they interact when investigating deaths, since there are often issues of general process and administration to be discussed which are not related to individual cases. 

The MoJ will be considering: 

  • Making court premises better suited to the needs of the bereaved and options for improving facilities at inquests.
  • Options for expanding support services.
  • Options for improving the conduct of lawyers, including the introduction of “accreditation” for those who appear at inquests which is described in the report as “A more radical idea”.

The MoJ is planning a conference for lawyers in the summer, both for those who represent public bodies and those who represent families, to encourage support for the Government’s proposed changes and the use of an inquisitorial advocacy approach at hearings. 

The report says that 2019/20 will see a major round of training for both coroners and coroners’ officers, overseen by the Chief Coroner, focused on issues such as the vulnerability of bereaved people and witnesses, communication with families and other interested persons, the use of language, the behaviour of advocates and generally controlling the court room. 

We will keep readers updated as the MoJ proceeds to roll out its planned changes.

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