Refusal to grant legal aid to mother for inquest into son’s death was unlawful

14 April 2010 by

Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)

Read judgment

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).

Dante died in hospital on 1 July 2008 after an asthma attack. He was aged 10. The judge criticised the LSC’s decision not to grant funding to his mother, saying:

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 [59] per Richards J, Takoushis at [94] and following per Sir Anthony Clarke MR, and L at [21]-[31] especially at [29] 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 [30] 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.

Read more:

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Cybersecurity Damages data protection death penalty defamation DEFRA deportation deprivation of liberty derogations Detention Dignitas diplomacy disability disclosure Discrimination disease divorce DNA domestic violence duty of care ECHR ECtHR Education election Employment Environment Equality Act Equality Act 2010 Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice evidence extradition extraordinary rendition Facebook Family Fatal Accidents Fertility FGM Finance fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Expression freedom of information freedom of speech game birds Gay marriage gay rights Gaza Gender genetics Germany Google Grenfell Gun Control Harkins and Edwards Health HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holocaust Home Office Home Office v Tariq Hounslow v Powell Housing HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity India Indonesia Infrastructure Planning Committee Inhuman and degrading treatment injunction Inquest Inquests insurance insurmountable obstacles intelligence services act intercept evidence interception interim remedies international international criminal court international law international treaty obligations internet internet service providers internship inuit investigation investigative duty Iran Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Kerry McCarthy Kettling Kings College koran burning Labour Lady Hale LASPO Law Pod UK Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberty library closures Libya licence conditions licence to shoot life sentence lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome London Legal Walk London Probation Trust Lord Bingham Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Taylor luftur rahman MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation Maria Gallastegui marriage material support maternity pay Matthew Woods Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical negligence medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental illness MGN v UK michael gove Midwives migrant crisis military Milly Dowler Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder music Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience news new Supreme Court President NHS NHS Risk Register Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London Offensive Speech oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden paramountcy principle parental rights parenthood parliamentary expenses parliamentary expenses scandal Parliament square parole board pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution Personal Injury personality rights perversity PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning system plebgate POCA podcast points Poland Police police investigations police liability police powers police state police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope portal possession proceedings post office power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radicalisation Radmacher Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Sports Standing starvation statelessness stem cells stop and search Strasbourg sumption super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine universal jurisdiction unlawful detention USA US Supreme Court vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: