More Families Are Now Entitled To Public Funding For Article 2 Inquests, But Do The Reforms Go Far Enough?

Legal Aid, once a panacea and then squeezed to within an inch of its life, has recently opened its doors a little wider for bereaved families.

The recent changes

If a loved one dies whilst under the care of state (i.e., whilst in an immigration detention centre, police custody, in prison or detained under the Mental Health Act) their death will be investigated by way of an Article 2 Inquest. The reason it is called an Article 2 Inquest, is because Article 2 “the right to life” of the European Convention on Human Rights (ECHR) has been invoked. Leaving aside our government’s designs on the ECHR[1], the reason Article 2 is invoked is because the state has assumed a responsibility or duty to protect the life of the person they have detained i.e. they need to be kept safe.

Article 2 Inquests are often more detailed and complex than other inquests, as the state carries out so called “enhanced investigations”. As with most things that are “detailed and complex” they cost more money. This is where Legal Aid steps in to assist families, as unlike the state which arguably has an unlimited pot of taxpayers’ money, you likely will not.

Up until 12 January 2022, families who applied for Legal Aid funding for an Article 2 Inquest would be subject to a two-stage process: the merits of the application and means testing. For an applicant who is already going through an emotive and distressing period of their lives, filling in a raft of forms which scrutinise every detail of their financial circumstances is the last thing they need. If you did not meet the financial criteria your application would be refused, regardless of the merits of your claim. Families would be faced with a true David and Goliath situation.

Now things are different. From 12 January 2022 new and pending applications for Exceptional Case Funding (funding for representation at the Inquest hearing) no longer require families to undergo a financial assessment: the Legal Aid Agency will only consider the merits of the application. Furthermore, financial contributions will no longer be required from families. This is positive news, as so many more families will be able to access funding and gain specialist advice and support.

Do the reforms go far enough?

Whilst any changes which open up additional financial support to families in this situation should be welcomed, wider access to representation during the Inquest process is still a problem. The vast majority of Coroners’ offices I have encountered are fantastic and supportive of families, but bereaved relatives are still faced with navigating a complex legal process alone and facing a much more well-resourced and knowledgeable party.

All any family wants at an Inquest is to ensure that the right questions are asked so the Coroner has all of the evidence available to determine “who, when, where and how” their loved one died. Whilst these changes are welcome, they need to go further and ensure that whenever an Inquest investigates the actions of a State body, the bereaved family can obtain funding for legal representation.

[1] I should add that there is no direct connection between the UK’s membership of the European Convention of Human Rights and the UK leaving the European Union.

*Disclaimer: The information on the Anthony Gold website is for general information only and reflects the position at the date of publication. It does not constitute legal advice and should not be treated as such. It is provided without any representations or warranties, express or implied.