A High Court challenge to the government’s policy on legal aid for inquests has succeeded. The court said current guidance provides a misleading impression of the law.
In The Queen on the application of Joanna Letts v The Lord Chancellor, the application concerned the criteria applied by the Legal Aid Agency to determine whether relatives should be granted legal aid for representation at an inquest into a death that has arisen in circumstances which might engage article 2 of the European Convention of Human Rights (right to life).
Joanna Letts challenged the lawfulness of the lord chancellor’s exceptional funding guidance (inquests) promulgated under the Legal Aid, Sentencing and Punishment of Offenders Act 2012.
Letts’ brother Christopher committed suicide in 2013 after being discharged from a psychiatric hospital. Letts was originally denied legal aid to be represented at an inquest on behalf of the family. After issuing judicial review proceedings, the LAA reviewed its decision and agreed to grant funding.
Letts opted to continue the judicial review to help other families going through similar situations.
The lord chancellor’s guidance identifies steps that a caseworker, facing an application for legal aid to cover representation at an inquest, must take. Two steps or conditions must be passed to warrant legal aid. The first is that the case must fall within article 2. The second step (which assumes the first step is met) is that representation of the next-of-kin must be necessary to enable them to be properly involved in the inquest.
Letts, supported by the Equality and Human Rights Commission, claimed the way in which the first step had been framed in the guidance would impose too high a hurdle on an applicant for legal aid and would therefore be inclined to refuse aid where otherwise it would, or should, be granted.
Mr Justice Green (pictured) said in his judgment today that the case boiled down to a consideration of how article 2 applies to the suicide of mental health patients and an assessment of the '(in)adequacy of the guidance in reflecting the law'.
He said: ‘I have come to the conclusion that in one material respect the guidance is inadequate and both incorporates an error of law and, also, provides a materially misleading impression what the law is. I am satisfied that these errors could lead to erroneous decisions being taken by caseworkers within the LAA.’
Although Green J said the guidance was ‘materially in error’, he did not quash the guidance. ‘I will hear submissions on whether there is utility in my proceeding formally to make a declaration or whether the reasoning set out in this judgment suffices and makes clear what should now occur.’
Joanna Letts’ solicitor Saimo Chahal, of London firm Bindmans, said: ‘The court could not have spoken more clearly. The guidance leads to unlawful acts; permits unlawful acts and encourages unlawful acts.
‘I am certain that this guidance has led to injustice for many bereaved families who have been deprived of representation and therefore accountability and scrutiny into the death of their loved one at a time when they needed help. Families have had to jump through hoops to get legal aid in inquest cases. I hope that this will no longer be the case.’
A spokesperson for the Equality and Human Rights Commission said: ‘The right to life is the most precious human right a person can have. It includes the right of bereaved families to be involved in investigations into the deaths of their loved ones.
‘The commission acted as an independent expert in human rights law in this case and we are pleased that the court agreed with us that where the situation demands it, a family involved in an inquest does need legal aid for representation.’