Refusal to grant legal aid to mother for inquest into son’s death was unlawful
14 April 2010
Humberstone, R (on the application of) v Legal Services Commission  EWHC 760 (Admin) (13 April 2010)
It would seem that legal aid is the topic of the day. Mr Justice Hickinbottom in the High Court has quashed the decision of the Legal Services Commission (LSC) not to grant an applicant for Judicial Review, Mrs Humberson, legal aid for representation at the inquest enquiring into the death of her son, Dante Lee Kamara. The judge took the opportunity set out five criteria which the LSC should apply when considering future applications (listed after the page break below).
95. I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.
Article 2(1) of the European Convention on Human Rights provides: “Everyone’s right to life shall be protected by law“. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. This also encompasses a duty, in some circumstances, to investigate a death, and if necessary, provide funding so that the investigation, including an inquest, functions properly.
The Judge examined the European and English authorities, and spell out the obligation for authorities:
51. Given that wide span of function for an investigation, it is unsurprising – and clear – that the state may have a duty to hold an investigation into a death – or, rather, support a mechanism for investigation into a death – even where there is no reason to believe that state agents have failed to perform the primary duty imposed by Article 2. That runs as a constant theme through the authorities, but the following are particularly clear and helpful expressions: Goodson at  per Richards J, Takoushis at  and following per Sir Anthony Clarke MR, and L at - especially at  per Lord Phillips. The state may be sufficiently implicated in a death to trigger the obligation of investigation even without any likelihood or even possibility of the state having breached its primary duty under Article 2 to preserve life
Mt Justice Hickinbottom’s also provided five points of guidance in relation to the criteria for determining whether funding of representation is necessary for the purposes of an inquest:
60.First, as an example of the need for more than a formulaic approach, although one factor may, in a specific case, be determinative, it is not correct or lawful to make a particular factor determinative in each and every case. For example, the complexity of the law or facts cannot be regarded as necessarily determinative, or as any form of surrogate for “exceptionality” in this context. Even in cases where the issues are not complex, an effective investigation may not be possible without representation of a particular participant, e.g. if there is a suggestion of gross negligence or a cover-up by the authorities (as in Khan). Contrary to the assertion in some of the decision letters in relation to Miss Humberstone’s funding application in this case, Challender does not support the proposition that funding of an inquest participant is only required where there is factual or legal complexity in a case. “Complexity” is a relative concept. It is of course relevant to any consideration of whether a participant in an inquest can effectively take part without representation: but it is just one factor for the relevant decision maker to take into account when making any funding decision.
61. Second, as the Funding Guidance recognises, another relevant factor in this context is the view of the presiding coroner himself. Whilst of course the views of the coroner are not conclusive – the Commission must exercise its own judgment in making any recommendation to the Lord Chancellor – when the determinative issue is whether the coroner can carry out an effective investigation without such funding, the views of the coroner who will conduct that investigation are necessarily worthy of particular consideration. He is a specialist judge appointed under statutory provisions to investigate the circumstances of deaths. The respect given to a coroner in carrying out that function is evident from the wording of the Coroners Rules 1984, which give him considerable procedural discretion illustrated in the rules by the use of the phrase “in the opinion of the coroner” (see paragraphs 28-31 above). He is often, as in this case, of some considerable experience. His view as to whether he can perform an effective investigation into a death without a particular “interested party” being represented must be a matter for special consideration by those involved with funding decisions. Although, of course, the Commission need not accept any views of the coroner, it seems to me that, on this issue, they could only rationally not accept his views if they gave cogent reasons for doing so.
63. Third, with respect to the comments in Main at  to the contrary, it seems to me that one factor that will not be relevant is the absence of (or restrictions on) available public funds. Whilst I appreciate the general constraints on the public funding of representation, those cannot warrant a failure to fund in these circumstances. If the state is required to fund a party at an inquest to avoid a breach of the state’s obligations under Article 2, it does not seem to me to be any answer to say that money is short: nor, of course, have the Commission in this case suggested that it is. Indeed, they frankly and readily conceded that it is not.
64. Fourth, it is common ground that the Commission have a wide discretion in relation to making recommendations in respect of cases that they consider are worthy of “exceptional funding”. However, the Commission must approach the issue of when exceptional funding is necessary to enable compliance with Article 2 obligations properly: and it, even with its wide discretion, they must make a decision falling within the legal bounds of that discretion. In the usual way for administrative decision makers, whilst the weight given to various factors is a matter for them, the Commission must adopt a lawful approach to the decision, and they must properly take all material considerations into account. The matters of course include those to which the Funding Guidance specifically refer as matters the Commission will take into account.
65. Fifth and finally, although the primary obligation on the Commission is compliance with Article 2 (and, as I have said, Ms Hewson properly accepted that, in any decision, they must comply with Article 2 insofar as the guidance does not effect compliance), may I generally commend the Lord Chancellor’s Guidance as set out in the Funding Code, to which I have referred. I will of course look at the individual circumstances of this case, but, generally, the guidance appears to me to be soundly based upon the Strasbourg and domestic jurisprudence of Article 2 as set out above. It appears to assume that, where an inquest is called, the duty to investigate that death under Article 2 arises. That, in my judgment, is a wise and proper working assumption. It clearly recognises that, in that investigation, the deceased’s family must have the opportunity to play an effective part. However, whilst apparently confirming that “the coroner’s inquest is the natural occasion for the effective judicial inquiry into the cause of a death that the Convention requires” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above), it also recognises that the investigation required at the inquest may be affected by the other available investigative avenues open to the family. It requires the Commission decision maker to take into account the nature and seriousness of all allegations that are likely to be raised at the inquest, although particularly those made against agents of the state. It requires the decision maker to take into account the views of the relevant coroner. It does not suggest that there is any short-cut surrogate decision, but requires the decision maker to decide whether funded representation for the family of the deceased is likely to be necessary to enable the coroner to carry out an effective investigation into the death in all of the circumstances of the particular case. Mr Simblet made no specific complaints about the guidance in the context of this case. In my view, that restraint was well-merited.
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