The chief coroner has called for bereaved families to be given exceptional funding for legal representation in cases where the state has agreed to provide separate representation for one or more interested parties.
Publishing his third and final annual report yesterday, HH Judge Peter Thornton QC says in a small number of inquests the family of the deceased is unable to obtain legal aid for representation at the inquest, despite individuals or agencies of the state being funded for legal representation as ‘interested persons’.
In some cases, one or more agencies of the state, such as police, the prison service and ambulance service may be separately represented.
‘Many less complex or contentious inquests are conducted entirely satisfactorily in the absence of legal representation for interested persons, including some cases involving the state,' Thornton says.
‘But in some cases the inequality of arms may be unfair or may appear to be unfair to the family. It may also mean that the coroner has to give special assistance to the family which may itself give rise the appearance of being unfair to others.’
Thornton recommends that the lord chancellor consider amending the exceptional funding guidance for inquests, providing funding for legal representation for the family where the state has agreed to provide separate representation for one or more interested persons.
Shadow justice secretary Richard Burgon agreed with Thornton's recommendation.
He said: 'It is a fundamental principle that the law should be a level playing field and the chief coroner is right to support calls that families of the bereaved should have access to the best legal representation, and the way to do that is through the legal aid system.
‘One of the most valuable lessons out of the recent inquest into the Hillsborough disaster was that justice for the 96 families was only achieved through the full funding of their legal costs.
‘The government should make clear that this will now be the norm and not the exception.’
Thornton also calls for a change in the law to remove the need for unnecessary and distressing inquests for those who die under state detention.
An inquest must be held in cases involving deprivation of liberty safeguards (DoLS), even when the death is from natural causes.
‘As a consequence the caseload of all coroners has substantially increased for no good purpose,’ he says.
Anyone who dies while subject to a DoLS authorisation, with their liberty restricted in a care home or hospital, dies ‘in custody or otherwise in state detention’ for the purposes of the Coroners and Justice Act 2009.
Last year there were 7,183 DoLS deaths that had to be processed and taken to inquest.
‘Bereaved families have been caused considerable distress,’ Thornton says. ‘Why, they ask, should their elderly relative, who suffered from dementia and has died a natural death, suffer the indignity of the coroner process?
‘There has been unnecessary work for coroners and additional cost for local authorities.’
Thornton says coroners have proceeded under the law with sensitivity and compassion in all circumstances, adopting procedures ‘to match the need for a speedy resolution’.
The Law Commission, in an interim statement published in May, provisionally recommended that those who die while subject to a DoLS authorisation should be scrutinised by medical examiners and not be subject to coronial investigation unless there is a specific reason for referral to the coroner.
However, Thornton believes immediate action is required, recommending that DoLS cases be removed from coroner jurisdiction by way of an amendment to section 1 of the 2009 act.
Thornton’s term of office as chief coroner of England and Wales comes to an end on 1 October.
The report states that he was appointed by the lord chief justice in May 2010 - three months after the post was created - in consultation with the then lord chancellor Jack Straw.
However, he was asked by the following government not to take up his post at that time.
Thornton was requested to take up his post in May 2012 with effect from September that year, for a three-year term.
In April 2015 the lord chief justice, in consultation with the then lord chancellor Chris Grayling, extended his term of office until 1 October this year, when a successor will take over.