Inquests: Do families need legal representation and who should pay for it?

I have recently assisted a family through an inquest after their fourteen year old daughter Emily, tragically took her own life. The facts and circumstances are a reminder of the difficulties that families face in obtaining Legal Aid to secure representation at inquests, even where there are potential failings by agents of the State that may have caused or contributed to the death.

Emily had formally made an allegation to South Yorkshire Police as a victim of a serious sexual assault. Emily struggled with the outcome of the investigation which was that no action would be taken. Emily was not properly supported through the process – when reporting the assault, the police investigation and when the decision that no action would be taken was communicated.

News update on 8th January 2021: Emily Greene: Police admit failings in teen’s abuse claim inquiry

At the conclusion of the inquest, the Coroner determined that there were failings with the police investigation, supervision and management. Quite separately to the police investigation into the sexual assault, the Coroner also determined that there had been failings on the evening that Emily’s family reported her missing, causing delays to action being taken to search for her.  In referring to the failings by the police, as part of the conclusion the Coroner determined that ‘Whilst it is not possible to say that the outcome would have been different, the sad fact remains that Emily was deprived of the chance of it so being’.

This was a complex inquest that took place over four days with seven interested parties, including multiple State bodies that were all represented. The Coroner had made an early direction at the first pre-inquest review hearing that the facts and the involvement of multiple State agencies meant that this was an inquest where Article 2 (the right to life), European Court of Human Rights was engaged.

Taking all the facts and the Coroner’s determination, this should reasonably have triggered the family being able to access legal aid, exceptional case funding, for legal representation at the inquest hearing. However their application was unsuccessful. The Legal Aid Agency determined that they did not think Article 2 was engaged – this is despite the direction by the Coroner that it was. A review against the decision was unsuccessful. The family did not have funds to challenge Legal Aid Agency’s decision at the review stage by way of judicial review.

Without legal aid Emily’s family took out a loan to pay for a barrister to represent them at the hearing. The family are relieved to have had representation and for the questions they had to have been asked and answered. They now have a better understanding of the role the different agencies played and where and by who their daughter was failed. Without a representative, it is likely that many of the questions they had would not have been put to witnesses, leaving gaps in the enquiry.

The family are particularly pleased that the Coroner issued a Prevention of Future Deaths Report and hope that this may result in positive changes so others are not let down in the way that Emily was.

What this inquest reveals is the clear need for families to be able to participate in an inquest on an equal footing. All the different agents of the State were legally represented. Had Emily’s family not been able to secure a loan, they would either have had to seek to rely on the goodwill of a barrister to provide representation pro – bono (for free) or to attend unrepresented. Without representation, their questions would remain unanswered and the conclusion may have been very different – particularly as many of the questions put forward on their behalf are unlikely to have been asked by any of the other parties.

There is a clear injustice that families, who do not choose for there to be an inquest, so are unexpectedly thrust into a complex legal process, can be left without representation at the hearing. This injustice feels much worse, as the other interested parties – the State agencies (e.g. the police, NHS Trusts, prison service, etc.) – are all represented. Their solicitors and barristers are paid for by the State. It is not uncommon, that the only interested party during an inquest that is not represented, is the family of the deceased.

While many solicitors and barristers act on a pro-bono basis, this should not be an excuse for the State not provide a properly funded Legal Aid system. Any one of us could find ourselves in an unexpected position of needing representation, just as Emily’s parents did. Without funded representation, families are denied their voice and meaningful participation in the processes of investigation, learning and accountability following a death.

The charity INQUEST continues to campaign for bereaved families to be granted automatic non means tested funding for legal representation following State related deaths. You can find more information on this campaign and information regarding inquests here: https://www.inquest.org.uk/legal-aid-for-inquests

The conclusion of the inquest into Emily’s death was reported here: https://www.thestar.co.uk/news/crime/south-yorkshire-police-failures-highlighted-after-teenage-girl-killed-herself-2991005

If you are dealing with an inquest and would like to discuss your case, you can contact our team on 0114 249 66 66  or email enquiries@howellsllp.com

What is an Inquest?

An inquest is a formal investigation conducted by a Coroner in order to determine how someone died.

The main purpose of an inquest is to identify ‘who’ the deceased is, ‘when’ they died, ‘where’ they died and ‘how’ they came by their death. It is a fact-finding process. It is not the role of the inquest to determine issues of civil or criminal liability.

The inquest hearing itself often represents the culmination of many months of work in collating relevant documents, statements and reports. During the inquest hearing the coroner will call witnesses to give evidence. At the end of the inquest, the Coroner will set out a conclusion.

Written by Kulvinder Gill

Throughout her career, Kulvinder has worked hard for individuals and families, seeking to hold the police and other state bodies accountable for their actions. She is instructed on a number of inquest matters that concern failings by the police, the prison service and/or NHS Trusts. Kulvinder is committed to access to justice and Legal Aid funding of cases where this is still available.