Campaigners are arguing for emergency legal aid to be provided for bereaved relatives at inquests for those who die in custody, including police, prison service or NHS custody.
Legal aid for representation is provided through “exceptional case funding”. Some funding for preliminary legal advice is also available. Both, however, are subject to means-testing and are only available in limited circumstances. The means-testing process can often be a very laborious process and families often feel that this adds to the stress and anxiety they are already faced with.
While relatives frequently cannot secure legal aid funding, police officers, prison staff, NHS trusts and other government agencies are represented by well-funded and highly experienced legal teams including senior barristers and Queen’s Counsel which are paid out of state funds.
In 2016, the then Chief Coroner, Peter Thornton QC, backed granting legal aid to relatives in cases in which the government pays for lawyers to represent police officers, prison officers or other state employees.
A year ago, a review backed by the Home Office recommended the automatic funding of legal representation without means-testing for families in cases in which state agencies have been involved in a death. Its author, Dame Eilish Angiolini QC, has stated: “If it’s the case that there are families who … have lost a loved one at the hands of the state and are not receiving the legal advice [and representation] that I recommended, then I am disappointed that this has not been addressed on an interim basis.”
Additionally, the plea for urgent action is endorsed by the Right Rev James Jones, whose Hillsborough review backed awarding funding for the bereaved to have full legal representation at inquests in which public authorities were represented.
The Ministry of Justice has begun a review of evidence about legal aid in Coroner’s Courts, however, it is not expected to launch a public consultation until next year.
Inquest, the organisation that supports families at coroner’s courts, have provided submissions and case studies for this review and call for automatic funding for families in such cases. One of their case studies is described below.
Jeroen Ensink, 41, was fatally stabbed on 29 December 2015 outside his home by Femi Nandap, who had paranoid schizophrenia. Nandap had previously been charged with a separate assault but the case had been dropped.
Ensink’s widow, Nadja Ensink-Teich, said: “The Crown Prosecution Service and the police were represented by large legal teams. The Legal Aid Agency didn’t agree with the Coroner that it was an Article 2 inquest. Therefore they said it was not necessary for me to have legal aid. … There was no way to do this without legal representation, so I had to start crowd funding. … Inquests are complex. They are supposed to be a fact-finding mission but in my experience it felt much more difficult.”
Article 2 is engaged on an Inquest where the state is alleged to have breached Article 2 of the European Convention on Human Rights, the Right to Life. The exceptional funding criteria allows for funding for representation to be provided when Article 2 is engaged or where there is a significant wider public interest in the individual being represented, the latter being a strictly interpreted test and rarely satisfied.
It is hoped that the outcomes of this review will result in a system which will allow for the provision of legal services to all families where the deceased died in custody. This will allow for a fairer system and will enable for bereaved families to be put at the heart of the inquest process
If you require assistance with the inquest process or advice about the costs involved, Farleys Solicitors can help. Please get in touch with our experienced inquests team on 0845 287 0939 or email us and a member of the team with be in touch.