In February 2019 in its Final Report on the Review of Legal Aid for Inquests, the Ministry of Justice confirmed that it would not be introducing automatic public funding for families at inquests where the state is legally represented. This is hugely disappointing news for families, such as the family of PC Palmer, who have experienced the reality of an inquest where the state has the benefit of a highly experienced and well-resourced legal team while they are left to try and find lawyers prepared to represent them for free.
In its Report, the MoJ describes the current system for the provision of legal aid for inquests. The availability, or non-availability, of legal aid funding for bereaved families at inquests is based on the premise that inquests are inquisitorial. Legal aid funding for representation at an inquest hearing is only available under the Exceptional Case Funding scheme. As the Report explains:
The ECF scheme is in place to provide legal aid for representation at inquests, subject to means and merits tests, where there would be a breach or a risk of a breach of the European Convention on Human Rights (ECHR) or an enforceable EU law right if legal aid was not made available; or where conditions are met for a ‘wider public interest determination’.”
The Report goes on to acknowledge that there have been a number of high profile inquests which have raised concerns about the lack of availability of legal aid for families and that these concerns especially arise in the context of the increasingly adversarial nature of certain inquests. However the Report justifies the decision not to expand the availability of legal aid on the basis that firstly this “could have the unintended consequence of undermining the inquisitorial nature of the inquest system” and secondly that “It could also reinforce the commonly held misconception that an inquest’s role is to apportion blame, as opposed to finding fact and learning lessons”.
The Report therefore concludes that it wants to assist bereaved families not by increasing their access to legal aid but rather by finding other ways to “seek to improve the current system rather than revolutionise it”.
It is very difficult not to be cynical about this decision and the reasoning used to justify it. It is true that inquests are inquisitorial but sometimes this is only in theory. In reality, certain inquests, especially those in which the state is facing potential findings of breaches of Article 2 ECHR, can become highly adversarial. The combative nature of these types of inquests can be exacerbated by the numbers of senior and experienced lawyers who are instructed, at huge expense to the public purse, by the state authorities involved. Families find themselves thrown into these inquests through no fault of their own, unlike the state authorities whose failings may have been responsible for their loved ones death. Families are unlikely to be able to afford legal representation and so, if they are denied funding by the Legal Aid Agency, as the family of PC Palmer was, then they have to hope to find pro-bono representation or face representing themselves at the inquest hearing.
At the Westminster Bridge Inquest, there were a number of state authorities named as interested persons including the Home Office, TfL, the London Fire Brigade, the London Ambulance Service, the Metropolitan Police Service (MPS) and the Parliamentary Authorities. The MPS in particular had questions to answer about the circumstances in which a terrorist was able to enter New Palace Yard and stab PC Palmer to death as he tried to protect members of the public and the Parliamentary estate. All of the state authorities at the inquest had the benefit of a team of highly experienced lawyers to represent them. Most had the benefit of senior and junior counsel. The cost to the taxpayer of all these lawyers, according to Freedom of Information requests made by Kingsley Napley LLP, was over £450,000. The MPS’ legal bill alone reached £207,051.
The family of PC Palmer, in particular his parents and siblings, were denied any legal aid funding in order to instruct even one lawyer to represent them at the inquest. The Legal Aid Agency justified its decision on the basis that there was not a risk of breach of the family’s ECHR rights, as another member of PC Palmer’s family had legal representation. The practical effect of this decision would have been to silence PC Palmer’s family at the inquest. The lawyers acting for the other family member had been privately instructed and could not also represent PC Palmer’s parents and siblings. It was only because of pro-bono representation by Kingsley Napley LLP and Susannah Stevens and Tom Coke-Smyth of QEB Whiteman Hollis that PC Palmer’s parents and siblings could ensure that the Coroner heard what they had to say.
The family of PC Palmer were desperate for answers to their questions about the circumstances in which PC Palmer died. In the year and a half which had passed since PC Palmer’s death they had not received from the MPS crucial information about the security system failings in New Palace Yard which had left PC Palmer vulnerable and unprotected. These issues were eventually explored in detail at the inquest but only after extensive complex legal arguments. It is completely unrealistic to suggest that members of a bereaved family with no legal knowledge or experience could participate in legal arguments such as these on their own. The Coroner ultimately concluded – in the face of strongly argued submissions by the MPS legal team to the contrary - that if armed officers had been positioned at the gates to New Palace Yard, as they should have been, it was possible that PC Palmer’s death could have been prevented. He went on to make wide-ranging recommendations to the MPS about changes that needed to be made to prevent future deaths. This highlights how crucial it is that family members are not left unrepresented at inquests where there are potential state failings or issues of major public interest being considered. Not only does legal representation ensure that the full issues are uncovered and the state is held to account but it also ensures that family members are not made to endure the ordeal of sitting through their loved ones inquest in the position of being the only unrepresented party in a court room packed with senior barristers and solicitors.
In its Report, the MoJ recognises this lack of equality of arms in situations such as this, where the state has extensive legal representation and the family of the deceased has none, but still maintains the argument that ‘the addition of further lawyers might actually hinder the process’. It seems surprising, putting it as neutrally as one can, that the MoJ appear to consider that it is only the presence of lawyers representing families that will hinder the inquest process, and not the presence of lawyers for state bodies. The Report confirms that there are no plans to widen access to legal aid for families and so other families will find themselves, as PC Palmer’s parents and siblings did, forced to rely on charity or forced to enter a courtroom for a high profile and complex inquest hearing on their own.