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[This edited version of the report has been prepared by Dr Robert N Moles]

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On 13 August 2008 Frances Gibb in The Times reported “Grieving families fight for legal aid to afford expert help at inquests”.

Bereaved families are struggling to represent themselves at inquests because of government curbs on when relatives should receive legal aid. Figures obtained by The Times show that only one in three requests to receive exceptional discretionary funding is granted — leaving the majority of families to cope on their own. In 2005-06, the latest figures available, 75 requests for funding were made and only 25 granted. Where deaths in custody occurred, funding was easier to obtain, and 58 out of 88 requests were granted. Families, pressure groups and lawyers say that this puts bereaved relatives at a severe disadvantage, particularly when they find themselves facing teams of lawyers employed by large organisations, including the Ministry of Defence. They are calling for the Coroners Bill, expected to be published this autumn, to change the system so that coroners, not ministers, make the decision on funding.

The concerns coincide with growing unease about the powers held by the Government over the inquest process. Under a little-noticed clause in the Counter-Terrorism Bill, which passed through the Commons last month, inquests that the Government deems a risk to national security could soon be held in secret. The measure, reported in The Times yesterday, could allow the Home Secretary to stop a jury being summoned, replace the coroner with a government appointee and bar the public and relatives from inquests.

Amanda Stevens, president of the Association of Personal Injury Lawyers, which has 4,000 members, said that the Government was failing to offer families necessary rights. She said that the exceptional funding of legal aid was very limited. “Many ‘borderline’ cases are denied funding, which leaves bereaved relatives in an intolerable position,” she added. “Any recommendations for funding from the coroner should be binding on the Legal Services Commission.” She said that the Government had recently published a draft charter for those who come into contact with the Coroners’ Service but it failed to include any reference to the right to legal advice and representation.

“Bereaved people who do not have access to a lawyer are likely to be seriously disadvantaged in such circumstances,” Ms Stevens added, saying that securing funding was lengthy and detailed and available only for advocacy at the inquest and immediate preparation. It caused difficulties when the client was unable to pay for the time in reviewing many documents to prepare for the application. “Even where families do manage to secure funding, the levels can be inadequate and grossly disparate when set against the lawyers representing the other side.” She added: “In many cases a lay family is simply unable to ask the necessary questions to represent their or the deceased’s interests at the emotionally difficult time of an inquest and the absence of available funding must mean that important questions go unasked.”

John Cooper is a barrister who has acted for families over the deaths of young soldiers at Deepcut barracks, soldiers who died in an RAF Hercules in Iraq and Fusilier Gordon Gentle, killed in Iraq by a roadside bomb. Mr Cooper said: “Funding is only available if you can show a significant public interest, and that is very, very difficult to show. You may have banks of solicitors and barristers paid for, for instance, by the Ministry of Defence, which are all paid for by the taxpayer, and the families of those who have died have no funding whatever.” He said that ministers sometimes resisted funding on the ground that the inquest was inquisitorial, and was not an adversarial battle between lawyers. “But on the Continent, the system is inquisitorial and everyone gets legal aid.”

Steven Heffer, a solicitor with Collyer Bristow, acted for Fusilier Gentle’s mother, Rose. A coroner ruled that her son was killed unlawfully in 2004 as a device was not fitted to his vehicle because of a breakdown in communications. Mr Heffer said: “We eventually got some £5,000 worth of funding, by which time we had run up £78,000 which we just had to write off. Subsequently we learnt that the MoD legal team had cost more than £100,000.”

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