State actors are handed millions for expensive lawyers while bereaved families get little or nothing. Calls for equality of arms at inquests are getting louder, with MPs demanding reform
Inquest has been calling for equality of arms between bereaved families and the state for years. Last week the campaigning charity released figures revealing the extent of the funding disparity. In 2017, the Ministry of Justice spent £4.2m on legal representation for the prison and probation service – but grieving families received just £92,000 through Legal Aid Agency exceptional case funding.
The MoJ confirmed in February that it will not introduce automatic public funding for families in cases where the state is represented. The policy change would have cost between £30m and £70m. Inquest is not letting the matter lie and nor are MPs, who debated the matter in parliament on 10 April.
Labour’s Stephanie Peacock said: ‘A huge injustice sits at the very heart of our justice system. On the one hand, state bodies and representatives are equipped with access to unlimited funds and resources – the best experts and the best legal teams. On the other hand, vulnerable families in the midst of grief are forced to navigate a complex and alien application process that is provided with the bare minimum of support – indeed, most people will not even receive that.’
Peacock shared heartbreaking testimonies from families.
One unsuccessful legal aid applicant said: ‘We had to do everything ourselves. We had no lawyer at the inquest. Those three weeks were the most terrifying thing I’ve ever done in my life.’
Former shadow justice minister Andy Slaughter pointed out that the government relies on the argument that an inquest should be an inquisitorial process: ‘So one must ask why, if the family does not need representation, the various state bodies always need to be lawyered up.’
Lord chancellor David Gauke told the House of Commons justice select committee last month that there are ways the government can be sympathetic and supportive to bereaved families without ending up in an ‘arms race’ in terms of who has the most and costliest lawyers.
However, committee member Marie Rimmer (Labour) told the debate: ‘If we must use the analogy of an arms race, then at present the government can spend money on the legal equivalent of tanks, helicopters, fleets and so on, while the families of the bereaved are left with the legal equivalent of a stick.’
Tim Loughton, Conservative MP for East Worthing and Shoreham, said the only parties whose legal representation will not be paid for at a forthcoming inquest over the 2015 Shoreham Airshow crash are the families of the 11 victims. Loughton said this was a ‘travesty of justice’.
He added that an application for exceptional case funding was turned down because it was not within scope and did not represent the wider public interest. ‘That is extraordinary because what I learned during this process is that civilian airshows have the second largest public audience of any activity in this country,’ said Loughton.
Justice minister Lucy Frazer acknowledged that, ‘as with all legal processes, we can make room for improvement’. Efforts include revising information given to families on coronial processes. The lord chancellor’s guidance has been updated so that the Legal Aid Agency can take into account the stress that a family are going through. Only the individual applicant’s financial means will be tested; and the legal help waiver will be backdated.
Addressing the inequality of arms, Frazer said this may be tackled by working with other government departments that may be represented in a hearing involving an article 2 case, and reminding those that take part in the process on behalf of the government of their duty of candour. Government departments might also be asked ‘to look at their own instruction of lawyers and whether they need the number they instruct’.
Inquest has been trying to persuade the ministry to reconsider its decision not to introduce automatic public funding, unveiling a ‘Now or Never! Legal for Inquests’ campaign.
The charity has asked the MoJ for the calculations used to inform the claim that the introduction of non-means tested legal aid would cost an additional £30m-£70m.
Frazer told MPs that legal aid is ‘one part of the jigsaw’ and the whole system must be looked at more widely to deliver access to justice.