An influential thinktank has urged the lord chancellor to grant automatic legal aid to bereaved families for legal representation to prevent them becoming retraumatised by the legal processes that follow a catastrophic event.
The recommendation is one of 54 in Justice’s latest report, When things go wrong: the response of the justice system. Work began on the project prior to the Covid-19 pandemic but Justice director Andrea Coomber said the coronavirus crisis reinforced the project’s relevance.
The report states that an array of legal processes may flow from a single fatal event, such as the Hillsborough stadium disaster or the fire at Grenfell Tower. However, ‘a system cannot provide justice if its processes exacerbate the grief and trauma of its participants’.
Inquests and inquiries are supposed to be inquisitorial processes but Justice said evidence from bereaved families and their representatives suggest the procedures are often a ‘highly adversarial battle’.
Referring to the Ministry of Justice's post-implementation review of the Legal Aid, Sentencing and Punishment of Offenders Act, the report says the response given for not introducing non-means tested legal aid for inquests where the state is represented was ‘wholly inadequate’.
It says: ‘Government expresses no willingness to cap the number of advocates representing state bodies, claiming “it must be right that, for example, police or prison officers have representation at inquests where there is the potential for their job to be at risk”. It is not clear how this precautionary approach chimes with the view of the process as “inquisitorial”.’
The lord chancellor is urged to amend the exceptional funding scheme to automatically grant legal aid for representation for families where the state has agreed to provide separate representation for one or more interested persons.
Justice says all inquest and inquiry professionals should be encouraged to have further training, continuing professional development and 'reflective processes' to empathise with bereaved people and survivors, such as sitting in the witness box or hearings where they are themselves not acting. The Inquiry Rules 2006 should be amended to allow the legal representative of a core participant to question witnesses where articles 2, 3 or 4 of the European Convention on Human Rights are engaged.
Other recommendations include a special procedure inquest for investigating mass fatalities and single deaths caused by systemic failure, a statutory duty of candour and an independent body to oversee and monitor implementation of the recommendations.
Sir Robert Owen, chair of the working party, said: ‘A system cannot provide justice if its processes exacerbate the grief and trauma of its participants. Our recommendations seek to ensure that inquests and inquiries are responsive to the needs of bereaved people and survivors, while minimising the delay and duplication that impede effectiveness and erode public confidence. We think that this set of proposals, if implemented, will provide a cohesive and cost-effective system, with the prospect of a reduction in duplication and delay, and which in turn should serve to increase public trust.’