Written evidence from INQUEST

Introduction

  1. INQUEST is the only charity providing expertise on state related deaths and their investigation. INQUEST provides expertise to bereaved people, lawyers, advice and support agencies, the media and parliamentarians. Our specialist casework includes deaths in prison and police custody, immigration detention, mental health settings and deaths involving multi-agency failings or where wider issues of state and corporate accountability are in question. INQUEST’s Executive Director, Deborah Coles, sits on the cross-government Ministerial Board on Deaths in Custody and is a member of the Independent Advisory Panel on Deaths in Custody.

 

  1. The INQUEST Lawyers Group (ILG) is a national pool of several hundred lawyers who provide legal advice and representation to bereaved families – often acting pro bono where funding is unavailable – as well as promoting and developing knowledge and expertise in the law and practice of inquests. Members of the ILG have contributed to this submission. 

 

  1. We welcome the Justice Committee’s focus on the Coroner’s Service, which we think is long overdue and timely.

 

  1. In this submission we set out our key areas of concern relating to inquests into deaths of people in detention and other circumstances, many of which engage Article 2 of the Human Rights Act, built up over almost 40 years of work supporting bereaved people through the inquest process. We also draw from the direct experiences of nearly 50 families who shared their experiences with us for the purpose of this inquiry, and we will provide a separate submission of their evidence. We urge the Committee to hear oral evidence from bereaved families, to ensure that their first-hand experiences of the inquest process inform your conclusions.

 

  1. INQUEST acknowledges that there have been some significant improvements in inquests over the last 30 years, including as a result of the 2009 Coroners and Justice Act, implemented in 2013, and the Human Rights Act 1998. However, there are continuing problems that must be addressed for inquests to serve their purpose in full, and for them to be conducted in a way that supports, listens to and is informed by bereaved families. There is also an urgent need to consider the essential preventive role of inquests, and we set out recommendations to achieve this. This inquiry is all the more important as it is unclear why the post-implementation review of the 2009 Coroners and Justice Act did not proceed past consultation stage.

 

  1. This is a significant absence which we think demonstrates a lack of political and official commitment to learning from the reforms and addressing any problems. Other official reviews – namely the Angiolini and Bishop’s reviews[1] – have made significant and wide-reaching recommendations about inquests, but without any ability to compel the government to address the problems identified. Their recommendations remain largely unimplemented. It is also important to note that the Coroners and Justice Act’s provision on the rights to appeal and public funding were not brought into force and were repealed.

 

 

  1. INQUEST’s main recommendations[2] for the Justice Committee are as follows:

 

  1. We urge the Justice Committee to follow up with the Chief Coroner and Ministry of Justice on progress in a year’s time.

 

 

The extent of unevenness of Coroners services, including local failures, and the case for a National Coroners Service

Inconsistencies across the coronial system

  1. A central concern for INQUEST is the widespread inconsistency in approach by individual coroners in relation to all aspects of the inquest process: a postcode lottery. This is a longstanding problem and it is disappointing that little has changed since the 2003 Fundamental Review, chaired by Tom Luce, reported:

 

The phrase we have heard more than any other during the Review is “the coroner is a law unto himself”. Virtually every interest has complained of inconsistency and unpredictability between coroners in the handling of inquests […]

 

  1. Pre-inquest review (PIR). These are now used far more extensively than previously, which improves the efficiency of inquests and is welcome. However, despite their critically important role in state related inquests the approach to them is inconsistent. The PIR is often the bereaved family’s first experience of the inquest, so the way they are organised is particularly important, yet agendas are not always provided in advance. The usefulness of the PIR depends on the preparation carried out for them, yet in some instances legal representatives have attended a PIR and found that the coroner has not familiarised themselves with the case or identified what needs to be addressed and is therefore unable to deal with any issues or take crucial decisions until the first day of the inquest.

 

  1. Some coroners list a PIR at the earliest opportunity, even where relevant investigations and disclosure remain outstanding. This enables the coroner to ensure, through giving directions, that preparatory steps (completing related investigations, obtaining disclosure, gathering witness evidence, warning witnesses, instructing experts) are being progressed in a timely manner, with a view to listing further PIRs in due course as necessary. Other coroners will not hold a PIR until all related investigations have been completed and/or disclosure provided. The latter approach leads to lengthy delays, as the interested persons are under no pressure to progress their preparations, with the result that evidence may be lost as witnesses’ memories fade.

 

  1. Disclosure. Openness, transparency and disclosure of evidence are essential to the family’s ability to actively participate in the inquest process, and ultimately to find out what happened to their relative. Yet disclosure processes remain highly inconsistent, and there is confusion about who has ownership and management of the process. Coroners vary widely in their approach, and the breadth of pre-inquest disclosure to families too often relies on the assertiveness and tenacity of their legal representative. This is even more problematic for families without legal representatives, who may be unaware of their entitlement to disclosure at an early stage. A recurrent problem is the failure of state bodies to provide full disclosure to the coroner in advance of an inquest. It remains common for disclosure to occur just before a long-awaited hearing, which has a significant impact on families. Not only does it lead to limited time to prepare and raise any resulting issues, but it also gives families limited time to digest and consider information that is often complex and distressing. It puts them at a disadvantage as other interested parties have held the information disclosed for a significantly longer period. This is also exacerbated by the very limited access to necessary technology and equipment in some coroners’ jurisdictions.

 

  1. The introduction of rules on disclosure in the Coroners Rules 2013 was welcome, but concerns and confusions remain. In particular, the test of “relevance” that governs disclosure to the inquest (Rule 13[2][d]) leaves it to the coroner to deem a document relevant for disclosure. As a result, families and their lawyers are often unable to access documents to form their own view as to relevance. In the absence of Coroner Rules and guidance clarifying the requirements for full disclosure, arguments around this and questions of “relevance” continue to be a battleground. We recommend a “potential relevance” approach, to provide greater access to evidence for families.

 

  1. Coroners’ approach to juries. There are significant variations in the way coroners approach juries throughout the inquest, starting with the opening of the inquest. Some coroners set the scene clearly for the jury, while others provide a minimal picture. We have seen inquests where coroners give limited instructions to juries about the nature and importance of their role in an Article 2 inquest. Coroners’ approaches to jury conclusions also vary greatly, with some adopting detailed questions with possible “yes/no” answers, and others invite juries to write their own narrative. While each approach has its own merits, the priority should be for juries to provide a meaningful written account which addresses all key and contentious issues surrounding a death.

 

  1. Scope and Article 2. One of the key challenges in Article 2 inquests is the need to manage the line between the general ‘fact not fault finding’ inquest purpose, and the Article 2 requirements of an inquest ensuring ‘effective scrutiny of key central issues and the need to ensure culpable and discreditable conduct is exposed’. We have seen too many examples of inexperienced coroners narrowing the scope excessively and excluding relevant issues from inquests in response to pressure from state bodies whose aim is often to limit scrutiny. In these situations, families with single or no legal representatives often struggle to convince the coroner to investigate all relevant issues.

the scope and type of inquest you get is a postcode lotteryFiona Laskaris, bereaved family member

“Each time we put forward a request of further evidence one or more of the other parties put an argument against it. Sometimes the same arguments were put forward by more than one of the interested parties. Felt as though we were arguing to increase the scope and everyone else was trying to limit it. Some of the evidence other parties objected to turned out to be very important.” Anonymous bereaved family member

  1. Pen portraits and photos. Pen portraits help humanise the inquest, putting the deceased and their family at the heart of the process. The inquest is about a life lived, respecting the dead and giving dignity to the bereaved, as well as how they died.[3] The continuing inconsistency of approach around these at inquest hearings must be urgently addressed. Some coroners allow photos to be circulated or put on the wall, others do not, and we are disappointed that despite raising on repeated occasions with the Chief Coroner, there is still no clear guidance on this. We hear frequent reports of state lawyers making applications to exclude pictures of the deceased, and in one inquest into the death of a 14-year old, her photo was removed half way through proceedings when the state lawyers argued that it was traumatising for the witnesses giving evidence. Ensuring pen portraits and photos can be shown at inquests would be a small step with a huge impact for families.

 

  1. Further inconsistencies around the approach and support to bereaved families, facilities and Prevention of Future Deaths reports, will be explored later in this submission. The effect of these inconsistencies – individually and as a whole – is to place additional burdens on families in their search for the truth. A coherent and rigorous system, is essential for inquests to enable bereaved families to actively participate and to provide answers, especially given the inaccessibility of judicial review (see below regarding the ability to challenge coronial decisions). The introduction of the role of the Chief Coroner, and their ability to issue guidance to coroners, has mitigated some of these issues, but problems remain.

 

I visited another coroners court to see how everything worked and what to expect. I could not believe the difference in approach. The coroner there was a delightful man who couldn’t have been more helpful. I sensed he really cared and tried to help me. There needs to be a national standard of service and a way to complain effectively about an individual coroner.Anonymous bereaved family member

The case for a National Coroner’s Service

  1. INQUEST has consistently called for a National Coroner’s Service to address fundamental problems inherent to the current piecemeal system.[4] Coroners courts are the only courts which are not funded or administered by central government and as a result the resourcing and practices of these courts are highly inconsistent. While there have been some improvements, resourcing issues continue to lead to delays in listing inquests and the ability to secure appropriate venues.

 

  1. As part of the National Coroner’s Service, there should be a team of specialist Article 2 coroners responsible for state related inquests, to ensure the appropriate experience and training needed to manage and effectively deal with these often highly complex cases.[5]

 

The Coroners Service’s capacity to deal properly with multiple deaths in public disasters

  1. INQUEST’s work with families affected by public disasters in which multiple people have died has highlighted the importance of early information to families about their legal rights, the automatic provision of legal aid, and the need for specialist coroners.

 

  1. The Hillsborough inquest was notable because legal representation for the bereaved families was fully funded without having to negotiate the legal aid system. This reduced the distress, complexity and confusion of the inquest process, and ensured that families had parity of representation. This should be the norm, not the exception.

 

  1. Families affected by the Grenfell fire disaster have told INQUEST of the utter confusion about their legal rights in the aftermath of the fire, which resulted in an information void which INQUEST filled by producing a leaflet for families on what to expect and the importance of expert legal advice. The approach of the coroner was praised by most families for her efficiency and empathy, and she was singled out for her personal approach in contrast to other “officials”.[6] This underscores the importance of coroners’ personal and organisational skills. INQUEST welcomes the introduction of training for coroners on dealing with multiple deaths, and recommends that a cadre of trained, specialist coroners be introduced to be able to deal with specific types of inquest, including for public disasters. For cases involving multiple deaths, consideration should be given to the special procedure inquest as recommended recently by JUSTICE.[7]

Ways to strengthen the Coroners’ role in the prevention of avoidable future deaths

  1. While inquests can and do make a vital contribution to the prevention of future deaths, much more could be done. INQUEST has documented a recurring theme common to virtually every bereaved family:

“If the scope of the coroner is truly to learn lessons to prevent future deaths then the needs of the bereaved should be at the centre of the inquest process. This can be achieved without inquisition or blame if the inquest is approached in manner of openness and willingness to learn.”  Lee Fryatt, bereaved family member

  1. Previously, where a concern was identified coroners had discretion to prepare a report aimed at preventing future deaths. One of the most significant developments under the Coroners and Justice Act 2009 is that coroners are now under a mandatory duty to prepare such a report.

 

  1. It is of grave concerns to INQUEST is that lawyers representing the state and private companies routinely attempt to persuade coroners not to make a PFD report at the conclusion of the inquest. This attitude undermines the important preventive role of an inquest. It is also inconsistent with the ethical and professional duties of both public bodies and lawyers to act in the wider public interest. It also means that the opportunity for learning not just at a local but a national level is lost.

 

  1. In particular, state lawyers frequently assert that changes have been made since the death to address any deficiencies and therefore there is no need for a PFD. This is often asserted anecdotally without adequate evidence in support and is impossible to challenge. Even when a PFD report is issued, there is rarely any follow up on the requirement for a response. INQUEST has noted that in the majority of cases, coroners do not review previous PFD reports, for example where there have been several deaths in one establishment.

 

  1. Too often we see a culture of delay, denial and defensiveness in complex inquests. We strongly support the introduction of the duty of candour in the Public Authority Accountability Bill, (‘The Hillsborough Law’).

 

  1. The delays in holding inquests impacts on the bereavement process and frustrates the ability of the coronial system to prevent future deaths. Although work has been done to reduce delays in recent years, difficulties remain in part due to the resourcing of coroners’ courts. While the complexity of some cases, particularly contentious Article 2 cases, can make it challenging to complete investigations in a shorter time period and in long delays in considerations by the Crown Prosecution Service, these challenges are often compounded by poor case management.

 

  1. We have seen evidence in some instances of coroners listing inquests too quickly so that they are rushed, which undermines the integrity of the process and can also affect their ability to prevent future deaths. More could be achieved if coroners had greater powers for case management to ensure better coordination of the various bodies and speedier progress in the processes underway. This will be all the more relevant in the wake of COVID-related delays. Delay can also be caused by families not being made aware of their rights to participate in the process until they turn up at a PIR to find lawyers representing other parties and only then seek advice and support.

 

  1. Inquests can and should be a forum from which deficiencies in organisations and institutions can be uncovered and any harmful practices can be exposed to enable learning from which crucial beneficial changes can flow. This is in both the family and public interest. While the coronial service can make a vital contribution to the prevention of deaths and social harms, that input is critically undermined by the failure to recognise the value of properly collated data and to monitor compliance with and action taken in response to the findings and reports that emerge from all inquests. This relates not only to PFD reports but also the learning from inquests when a PFD has not been issued.

 

  1. The current system for learning and implementing changes arising from inquests is not fit for purpose. The absence of a framework or coordinated response among public bodies to ensure inquest outcomes feed into concrete implementation of learning and demonstrable action is a significant failure of accountability that must be addressed. Narrative findings from inquests, which often provide a detailed account of systemic failings, are not published or collated. They remain under used.

“The same issues arise time and time again at the Coroner’s court. I am not allowing that to happen as I am in contact with all the parties involved where action is required, and I am asking for meetings and replies to what I perceive as whitewash letters and asking why things are not changing now!” John Oak, bereaved family member, about his efforts to ensure the learning from a PFD report is taken forward

“PFD's seem nothing more than a paper exercise at present. Organisations are under no duty to implement any changes following a preventable death and there is no scrutiny or audit to ensure any promised changes ever materialise. […] Coroners have an immense opportunity to identify trends and themes that might prevent future deaths […] but there is no central oversight, evaluation or anaylsis of emerging themes. There needs to be some form of national oversight of coroners reports to address this shortfall and to ensure consistency, provide transparency and promote trust and confidence in the service.” Lee Fryatt, bereaved family member

  1. INQUEST and bereaved families have filled many gaps in the absence of this framework. We regularly circulate information about post inquest outcomes to investigation, inspection and monitoring bodies and without us providing this function it is doubtful that these organisations would inform themselves of the essential evidence and recommendations arising from inquests and PFD reports. In the absence of any database for coroners, INQUEST have on occasion had to remind coroners of their own PFD reports in other cases in their own jurisdiction where these are relevant to a case. Some bereaved families have done their utmost to force public bodies to take PFD reports forward, and have proactively monitored actions taken as a result of inquests, but it should not be for bereaved families to provide this role.

 

  1. It is not sufficient to place PFD reports on the judiciary website and hope that these be put to good use. Furthermore, even this limited action seems to be in doubt as PFD reports dating before September 2017 are no longer available on the Coroner’s office website, which we believe undermines the Chief Coroner’s own guidance which states there is a presumption of publication of PFD reports.[8] Learning from deaths cannot be limited by a three-year cut-off point.

 

  1. A new framework must be put in place to ensure that organisations are publicly accountable for their actions or decisions on whether to act in response to inquest outcomes and coroners’ reports. In this way greater active and accountable learning may be achieved and bereaved people and the public reassured that the conditions and circumstances resulting in a death have not only been scrutinised but that the findings have been acted upon in the hope that future deaths and injuries are averted.

 

  1. INQUEST’s proposal is that a National Oversight Mechanism with the duty to collate, analyse and monitor learning outcomes and their implementation in relation to all state related deaths be established. Any new framework should also be accountable to Parliament to enable the advantage of parliamentary oversight and debate. Consideration could be given to its reporting annually to parliamentary select committees.

The disappointment of not knowing whether the PFD was actioned is still palpable. James Murray, bereaved family member

 

How the Coroners Service has dealt with COVID-19

Pre-COVID deaths

  1. There is a significant backlog of inquests from before the pandemic. The decision early in the pandemic to adjourn inquest hearings was understandable, but we are concerned that current practice varies considerably, leading to many uncertainties and inconsistencies. Some pre-inquest reviews have proceeded remotely, while others have been adjourned. Some coroners’ offices are making significant efforts to find new venues to hold hearings when their usual courts are unsuitable. A number of inquests have been re-listed from September, with some using hybrid methods, whilst many jury inquests have been adjourned with no indication of a new date.,

 

  1. Some of the most concerning examples we are aware of include:

 

    1. A delayed inquest with a re-listing date in summer 2021;
    2. A case where two weeks before a jury inquest is due to start, no safety assessment of the court facilities has been conducted, despite being advised that the family’s barrister is shielding and needs to know the court facilities are safe.
    3. In one court, lawyers have been advised that no “big cases” will be dealt with until 2021, and it appears that there is no work being done on any files in the interim.

 

  1. Families have advised us of their concerns about their loved ones’ inquests being heard remotely not being heeded, and the stress of having to assert these concerns. The Coroner’s guidance on remote participation in coronial proceedings, issued in June 2020, makes no mention of the effect of such arrangements on families, nor does it suggest any steps to ensure they are still able to participate actively. [9]

 

  1. The coronial system needs to plan and be resourced to ensure that inquests are not adjourned indefinitely or for long periods, and so that inquests can progress quickly once re-listed. Inquest delay exacerbates grief and frustrates the learning process. At the same time, the ability of families to participate effectively in hearings must be considered at all stages. We are concerned by some recent reports from families about the lack of any flexibility when a hearing date is given with little notice and despite their legal team being unavailable, an adjournment has been refused.

COVID-related deaths

  1. We were dismayed when the Chief Coroner published guidance discouraging individual coroners from “addressing concerns about high-level government or public policy” in relation to the deaths of frontline workers, including the suggestion that the scope of an inquest should not include the provision of PPE to a healthcare worker who has died from COVID-19. We challenged this on the basis that if followed, his guidance would mean that inquests into the deaths of frontline workers who die from COVID-19 would neither comply with the minimum requirements nor the underlying purposes of an Article 2-compliant investigation.[10]

 

  1. We remain concerned that inquests are not being opened into COVID-related deaths, and that cases are not reaching inquest. In the absence of a public inquiry, inquests are the only forum in which the State’s obligations under Article 2 can be discharged and legitimate questions asked about whether deaths could and should have been prevented.

 

Progress with training and guidance for coroners

  1. The above issues about unevenness and inconsistency could be improved through better training and guidance. We are aware of some positive efforts by the Chief Coroner’s Office to strengthen and widen training for coroners and their officers, and INQUEST has been involved in the latter. We also welcome the introduction of the Chief Coroner’s guidance notes and other documents.

 

  1. However, in our experience, efforts to strengthen training and guidance in recent years have only had limited impact on the experience of bereaved families. There still remains a systemic cultural problem across the inquest system that means too many families are not put at the heart of the inquest process or provided with the dignity and respect they deserve. Some families report positive and supportive interactions with coroners and their staff, but too many continue to raise with us their negative experiences of the way some coroners communicate with them. This is unacceptable. As an immediate step, we urge the Chief Coroner to involve bereaved families and their representatives in future coroners training programmes. This would also balance the current reliance on lawyers who routinely act for state bodies to deliver training.

We felt that it was a process which we had to join, with no knowledge of what to expect. When you are at your most vulnerable & distressed having just lost your loved one, it makes you feel as though you are bothering a busy service just to find out what you need to do or what happens next. This adds to your sense of complete isolation.Anonymous family member

I think all staff, including all Coroners, should have relevant training on how to deal with and speak to bereaved, often shocked, and grieving families as compassion and sensitivity would go a long way to slightly easing our pain and would be appreciated rather than increasing the trauma because that is what I feel it has done.” Anonymous bereaved family member

“The Coroners interviewer was very compassionate and non-judgmental and seemed genuine and was very easy to talk to during a very emotional time for our family. The Coroner at the inquest was also very understanding.” Margaret Hibbert, bereaved family member

  1. In some jurisdictions, Article 2 inquests are rare and a coroner may have had little or no recent experience of them, including no or little experience of sitting with a jury. Some have close relationships with the police or other public body which undermines the appearance of independence. We have seen countless cases where less experienced coroners do not effectively manage the line between ‘fact not fault finding’ and Article 2 requirements of an inquest ensuring ‘effective scrutiny of key central issues and the need to ensure culpable and discreditable conduct is exposed’. For this reason, we recommend that only legally trained coroners should conduct Article 2 cases, and that there should be a team of specialist coroners for such cases, to ensure they are sufficiently prepared and trained in how to manage these contentious, and highly complex cases.

 

Improvements in services for the bereaved

  1. For many families, inquests are painful, stressful and deeply frustrating, and the inquest hearing can have a re-traumatising impact. This can be mitigated against by placing them (and the deceased) at the heart of the process and by treating them with dignity and respect. Whilst we note that the MOJ has recently produced a guide to coroner services, and held a conference on how to make inquests more sympathetic to bereaved people, these are limited steps and that do not address the central challenges for bereaved people. The MOJ has failed to recognise the inequality of resources faced by bereaved families from the moment of a state related death. Families are supposed to be at the heart of the inquest process but in reality are forced into a legal process that can and in too many instances does add to their trauma. 

 

  1. Some families tell us of being looked after very sensitively by the coroner’s staff, or the coroners support services, others tell of facilities that add discomfort and trauma. The facilities provided to families at coroner’s courts vary considerably, some not fit for purpose, others purpose built with plenty of space and useful additions like Wi-Fi and sockets for laptops. Families need somewhere to go during distressing periods and to speak to their lawyers in private. In small courts there is sometimes no space reserved in the courtroom for the family to sit without being in close proximity to those involved in the death of their loved one.

 

There were two toilets to service a packed St Pancras Coroner's Court every day. It was a nightmare having to queue up, often with one or more of the eight police officers that we felt were responsible for Jack's death. Anna Susianta, bereaved family member

“From the start of the process they kept me informed and were understanding. They explained the process well.” Louise Hughes, bereaved family member

Due to their being no facilities to eat, the only alternative was to get lunch in the only cafe in the area alongside all of the other IP's and witnesses at the inquest. This definitely made the whole process much more traumatic, being stood in a cafe next to the person who had just demonised my brother to extreme levels was not an easy task.” Donna Mooney, bereaved family member

“Investment has been made by the MOJ to try and create a supportive and comfortable environment for vulnerable witnesses and victims in criminal courts and I see no reason why similar provision should not be available in all coroner court settings.” Lee Fryatt, bereaved family member

  1. Too often, families come to INQUEST at a late stage, completely unsupported and alone. INQUEST resources are widely used by many bereaved people going through the inquest system,[11] not just those cases we support directly, who access our information in the absence of timely, official information provided to them. Bereaved people need information at the earliest opportunity, covering the inquest process itself, legal advice, funding and key areas such as their rights around accessing their loved one’s body and the post mortem, yet our casework shows that what is provided is inconsistent and often comes too late, if at all. Written information about sources of specialist support and advice, including information about INQUEST, should be passed immediately to every family by the coroner’s court following a state-related death. Despite INQUEST’s best efforts to disseminate an information booklet for families, so that it can be provided to them at the earliest opportunity by coroners and their officers, the majority of families we support have found our services via web searches.

 

  1. We believe that as an urgent priority, the Chief Coroner should establish a regular advisory group/forum to consult directly with bereaved people and those organisations that support them. This forum would enable transparency, feedback and input on the experience of bereaved people and help in the development and improvement of systems and practices. Alongside this, and after consultation with bereaved families, the Chief Coroner should issue guidance on family participation, spelling out the duty of each coroner to ensure full and appropriate family input.

Fairness in the coroners’ system

Lack of accountability

  1. Though the 2009 Act initially introduced an appeal process, this was repealed before it was implemented. As a result, the only legal avenue to challenge a coroner’s decision is through judicial review. This is a cumbersome, costly and time-consuming process, and INQUEST considers that it is neither a proportionate, fair nor cost effective way to challenge a coroner. Bereaved families and lawyers tell us that they are reluctant to raise complaints about coroners because there is no clear process to do this, and because they are worried it could be held against them at the inquest. Given that inconsistency across the coronial system remains such a fundamental problem, an effective and accessible right of appeal should be reintroduced, and INQUEST believes the appeal process should be direct to the Chief Coroner.

 

It is currently very, very hard for a bereaved family to make a complaint against a coroner. Yet instances of coroners getting it wrong or behaving wrongly are frequent” Andrew McCulloch, bereaved family member

 

Inequality of arms and legal aid

  1. Inequality of arms is the single greatest obstacle to families securing truth and justice through the inquest system. This is a travesty of natural justice and a national scandal. It runs through every aspect of families’ involvement in the inquest process. Bereaved families routinely tell INQUEST that their need to find out what happened to their loved one is at odds with the approach of state representatives, who appear more motivated by damage limitation and protection of reputation than the rights of bereaved people to hold people and institutions to account: this a significant barrier to accountability.

“Families feel like bystanders rather than participants” Donna Mooney, bereaved family member

“You feel unequal enough already with your massive loss and you do not need all this defensiveness from other people Anonymous bereaved family member

It seems like no one wants to give us answers, we have to fight for every single tiny scrap of disclosure and it's demeaning, dehumanising and devastating Marienna Pope-Weidemann, bereaved family member

“When your loved one takes their own life one feels powerless and the treatment I have received at the hands of the Coroner has made me feel like this even more.” Anonymous bereaved family member

 

  1. The inequality of arms between bereaved families and the state can be seen most clearly in the presence of multiple lawyers representing state bodies, individuals and private providers. For families who have any legal representation, this will be one representative (very occasionally a senior and a junior counsel). Multiple teams for state bodies are able to split work between them, and will often support each other’s legal argument particularly around scope, witnesses and inquest outcomes. A single lawyer acting for the bereaved family has to cover the same ground alone, often under significant time pressure. Less experienced coroners may fall prey to majority positions and pressures from state lawyers.

“If we hadn't had legal aid, we would have just had to sit back and accept that Raymond was gone and we'd never know why. We couldn't afford a solicitor. Without legal aid, people like us would just bury our sons with no questions asked. Legal aid makes a massive difference. Legal aid gives us that voice.” Dawn Boyle, bereaved family member

“The lack of funding meant I had to cross examine the pathologist myself on my dead daughter’s body - something no parent should ever have to do” Liz de Oliveira, bereaved family member

  1. INQUEST has long called for automatic non-means tested public funding for families’ specialist legal representation immediately following a state-related death to cover preparation and representation at the inquest. Many bereaved families are unaware when funding is available, adding anxiety about the financial cost of legal representation to their bereavement. To have any chance of funding, families have to pursue applications which are complex, protracted, intrusive and distressing. Some subsequently get funding but many do not or have to contribute large sums towards legal costs. Others are forced to crowd fund or at worst represent themselves in complex legal hearings.

 

  1. Every independent review and public inquiry that has considered issues faced by bereaved families over the past 20 years has recommended that the inequality of arms between bereaved families and the state at inquests should be addressed.[12] Indeed family representation is now routinely welcomed and supported by coroners.

 

  1. There is a clear link between meaningful access to justice and the outcome of the legal process. Properly conducted inquests, in which families have been legally represented, can help ensure scrutiny and examine and address the systems and practices that are meant to ensure safety and prevent deaths. Inquests can help save lives and are a vital way of exposing unsafe systems of care and holding public and private services to account. Funding for families therefore performs a wider public benefit.

 

  1. Yet in 2019 the Ministry of Justice disregarded the overwhelming evidence and ignored the clear voices of bereaved families, rejecting this call for automatic non means tested legal aid. INQUEST regarded this as a betrayal of those who invested in the MOJ’s review in the hope of securing meaningful change.[13]

 

  1. While state bodies receive automatic legal representation which is not subject to a merits or a means test, at taxpayers’ expense, families have no equivalent right to funded representation. This causes a fundamental inequality of arms: families are forced to take part in a process that they have not chosen to initiate, which will take place whether they are able to participate effectively or not, and which affects them more profoundly than any other participant. Any review of the coronial system that fails to address this fundamental issue of justice, equality, truth and accountability, will fail bereaved families and undermine the inquest’s potential to prevent future deaths.

 

INQUEST, 2 September 2020

 

Annexe 1. Detailed recommendations from INQUEST to strengthen the Coroner’s Service

INQUEST made a series of detailed recommendations to strengthen the Coroner’s Service to Rt Rev Bishop James Jones’ Review of the Hillsborough Families’ Experiences, which are of direct relevance to this inquiry. Our full submission can be found here: https://www.inquest.org.uk/Handlers/Download.ashx?IDMF=02aadb9f-0b93-46d7-a612-039327086cd5 and our recommendations are listed below:

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

September 2020

 

 


[1] Report of the Independent Review of Deaths and Serious Incidents in Police Custody, Rt. Hon. Dame Elish Angiolini DBE QC, chapter 16; ‘The patronising disposition of unaccountable power’, A report to ensure the pain and suffering of the Hillsborough families is not repeated, The Right Reverend James Jones KBE, Chapter 2

[2] Detailed recommendations made by INQUEST to the Bishop’s review of Hillsborough Families’ Experience in 2017 are included in Annexe 1.

[3] See INQUEST’s letter to the Grenfell Inquiry on the importance of pen portraits: https://inquest.eu.rit.org.uk/Handlers/Download.ashx?IDMF=5ce9e910-c7a2-4083-825e-368ea9cb202e

[4] Since at least 2003, numerous authoritative reports and public figures have called for a national service, including: Death Certification and Investigation in England, Wales and Northern Ireland: The Report of a Fundamental Review 2003 (the “Luce report”); The Shipman Inquiry, Third Report, 2003; the House of Commons Constitutional Affairs Committee, Reform of the coroners’ system and death certification: Eighth Report of Session 2005-06; the previous Chief Coroner Peter Thornton QC; Report of the Independent Review of Deaths and Serious Incidents in Police Custody, Rt. Hon. Dame Elish Angiolini DBE QC,

[5] See also, JUSTICE, When Things Go Wrong: The response of the justice system, 2020.

[6] INQUEST, Family reflections on Grenfell: No voice left unheard. May 2019 https://inquest.eu.rit.org.uk/Handlers/Download.ashx?IDMF=47e60cf4-cc23-477b-9ca0-c960eb826d24

[7] JUSTICE, When Things Go Wrong, paragraphs 2.40-2.42 and Annexe.

[8] Chief Coroner, Guidance no.5: Reports to Prevent Future Deaths, paragraph 55

[9] Chief Coroner, Guidance no.38 Remote Participation

[10] INQUEST letter to Chief Coroner, 13 May 2020. https://www.inquest.org.uk/Handlers/Download.ashx?IDMF=de257e84-e63f-47ff-be50-171c31a8e048

[11] The INQUEST website received over 4,000 hits for ‘our services’ and over 3,000 hits for our ‘useful resources’ in the last year. In 2019 we sent out nearly 700 INQUEST handbooks (a guide for bereaved families, friends and advisors).

[12] This includes support from the Joint Committee on Human Rights, the current and former Chief Coroner, the Independent Review of the Mental Health Act 2019, the Independent Office for Police Conduct, the Joint Committee on Human rights 2018, the previous and current Chief Coroner, the Independent Review of the response to the Hillsborough Stadium Disaster by Bishop James Jones 2017, and the Independent Review of Deaths and Serious Incidents in Police Custody 2017 by Dame Elish Angiolini QC. See: https://www.inquest.org.uk/legal-aid-for-inquests-timeline for more information.

[13] See https://www.inquest.org.uk/moj-legal-aid-review for further information.