By Sam McIntosh

In the recent case of R (Humberstone) v Legal Services Commission (the Lord Chancellor intervening) ( [2010] All ER (D) 255 (Dec), [2010] EWCA Civ 1479), the Court of Appeal held that the Legal Services Commission (LSC) was wrong to deny a mother public funding for legal representation at the inquest into the death of her son, Dante Kamara, who had died of an asthma attack aged 10 years.

The case is important because legal representation for next of kin at inquests into deaths for which the state may bear some responsibility can be a vital safeguard against them becoming incestuous dialogues amongst members of the establishment, where the next of kin’s (and the public’s) concerns are given short shrift. For this and other reasons, the effective participation of the next of kin in an inquest has important implications for open justice and democratic accountability.

The judgment clears up a recurring ambiguity in previous case law concerning deaths which engage article 2 (the right to life) of the European Convention on Human Rights (ECHR). The judgment also criticises the presumption made by previous case law, and official guidance, that the next of kin’s right to publicly funded legal representation at article 2 compliant inquests will only arise in exceptional circumstances. Finally, the case demonstrates a rather concerning attitude on the part of the LSC when exercising its discretion: an attitude which may become increasingly entrenched in the current atmosphere of cuts to public funding.

In its judgment, the Court of Appeal held that, because there was evidence that systemic failures may have contributed to the late arrival of an ambulance at Dante’s address, the case engaged a procedural obligation on the part of the state under article 2 ECHR. This requires that, wherever the state may bear some responsibility for someone’s death, there must be an independent, effective and public investigation into the death. Crucially, European Court of Human Rights case law states that the investigation must involve the deceased’s next of kin to the extent necessary to safeguard their legitimate interests.[1] The Court of Appeal ruled that in Dante’s mother’s case, this necessitated the public funding of her legal representation at the inquest.

The background to the Court of Appeal case is that twelve days after his death, Dante’s mother, Ms Humberstone, was arrested on suspicion of gross negligent manslaughter after healthcare staff accused her of failing to adequately care for son’s asthma. Amongst the allegations made against her, were that she was responsible for her son missing a number of appointments with healthcare staff, and she had failed to ensure that Dante used his inhaler regularly – something, which she had been warned, could have potentially fatal consequences. For her part, Ms Humberstone alleged that healthcare workers had been careless in their treatment of Dante. Shortly before his death, Ms Humberstone had told the asthma nurse that Dante’s asthma was getting worse and had asked that he be referred back to the hospital. However, the nurse did not consider it necessary. On the day of his death, Ms Humberstone requested that Dante, who was presenting with a cough, be intubated in order to prevent an asthma attack. Again, after examining Dante, the nurse declined to do so as she did not believe it was necessary. As indicated above, the ambulance that eventually took Dante to the hospital took a very long time to arrive after the initial call. Finally, Ms Humberstone alleged that a paramedic who attended her son on the night of his death accidentally dropped a butterfly clip down his throat which he then had to retrieve with some sort of instrument.

It was, therefore, clear at the outset that the inquest would be fraught with allegation and counter-allegation regarding who may have borne some responsibility for Dante’s death.

The case is important for a number of reasons. Whether or not systemic failures or the carelessness or negligence of individual healthcare workers were factors in the case of Dante Kamara, medical negligence cases are not infrequent. Anyone could potentially find themselves in the position of wishing to be legally represented at the inquest into the death of a family member where the death may have caused by failings on the part of healthcare staff. It is also the case that the family of the deceased are invariably the most determined to ensure that their loved ones’ deaths were not in vain, and that lessons are learnt for the future. This helps to ensure that future deaths are avoided and that the world is a slightly safer place for us all. Funding for legal representation can help the next of kin fulfil this role and play an effective part in the coronial process.

Legal representation for next of kin at inquests where there is some alleged state involvement in a death is also important because the more effective the inquest is, the more we learn about what state agents are doing in our name and on our behalf. The greater our knowledge about how agents of the state behave in critical scenarios, the more informed we are as a citizenry and the more accountable government becomes. Therefore, as well as the value that the next of kin may derive for themselves through their own participation in the inquest, their participation can also have important implications for “open justice”. While an inquest cannot determine criminal or civil liability, it is, nevertheless, an important forum where “justice” is often seen to be done. For example, after the second and damning inquest verdict into the death of 14 year old Adam Rickwood in custody (a verdict which criticised Serco, the Youth Justice Board, Prison Service restraint trainers and the Lancashire Youth Offending Team), his mother, Carol Pounder, declared:

I have waited over six years for truth and justice… All I have ever wanted is to find out the truth about what happened to my son and for those responsible for unlawful assaults to be held to account.[2]

Open justice is a vital part of public accountability. It is normally thought of simply as a right to passively receive information about individual cases and the judicial process. Without the involvement of the next of kin of the deceased, inquests into deaths where there is some alleged state involvement, risk becoming incestuous dialogues amongst members of the establishment. The involvement of the family of the deceased in an inquest, while primarily representing their own interests, may also be seen as representing a wider public involvement in the coronial process. By being able to make representations to the coroner and put questions to witnesses, they have the potential to significantly influence the type and quality of information and evidence that is discussed and, therefore, made public through the inquest. Their participation also has the potential to significantly influence the inquest’s outcome. Open justice therefore becomes an active rather than passive concept, where these potential representatives of the wider public actively engage in the process and have a positive influence on the information that comes out of it.

The Court of Appeal judgment has both positive and negative implications for those who see value in family members being legally represented in such cases. The judgment distinguished cases where there is evidence of potentially systemic failings on the part of healthcare providers, and cases where allegations were confined to carelessness or negligence on the part of individual healthcare workers. According to the Court of Appeal, only the former cases would engage the state’s article 2 obligation to initiate an effective and independent investigation which involves the deceased’s next of kin to an appropriate extent. The confining of the state’s article 2 obligations in this way is seen by many as unjust. However, the Court also firmly criticized both previous case law that said the state would only be obliged to fund legal representation at article 2 compliant inquests in ‘exceptional circumstances’; and the Lord Chancellor’s guidance that states that the government will, therefore, only fund representation in ‘exceptional circumstances’.

The judgment aside, the case also illustrates a worrying trend on the part of the LSC. Ms Humberstone’s involvement in the inquest into her son’s death was arguably of considerable importance for a number of reasons. First, it would be an important opportunity for Ms Humberstone to seek answers to some of her questions and concerns about the circumstances leading up to her son’s death. Secondly, it would provide her with an opportunity to publicly defend herself against allegations that had been made against her and which were likely to be repeated during the inquest. Finally, her participation in the inquest was vitally important for the inquiry itself, as she was a very important witness.

The case for Ms Humberstone’s legal representation at the inquest was, on a simple ‘interests of fairness’ argument, very compelling. When police had questioned her after her arrest, she had to be accompanied in the interview by an ‘appropriate adult’ because she was in such a distressed state. The Court of Appeal heard that she was of limited intellectual ability and that she had left school at 15 with no academic achievement. The inquest, however, was scheduled to last for 5 days and would examine potentially complex medical evidence. In support of her application for legal aid, the coroner pointed out that it was likely that during the inquest, medical staff would unite in alleging that Ms Humberstone had not cared for her son properly. These “interested persons” (including the ambulance service, the hospital authority and the individual doctors and nurses) were all going to be legally represented at the inquest: some at public expense. It was also suggested that the risks to Ms Humberstone at the inquest were not just confined to her being stigmatised as a bad mother who had caused or contributed to her son’s death, but her position as a carer of her other 4 children could also have been put at risk by any adverse comments or findings at the inquest. The coroner made it clear that in his opinion, unless Ms Humberstone was also represented, she “would be unable to play a proper part in the proceedings because of the allegations and counter-allegations, her emotional involvement and the complexity of the medical issues.” [2] The Court of Appeal heard that at a pre-inquest hearing, Ms Humberstone had been unable to follow proceedings, despite being assisted by both her solicitor and the coroner. Finally, the coroner was particularly concerned that there would be no one to advise Ms Humberstone about whether she should refuse to answer any questions on the grounds of possible self-incrimination.

Given all of the above, it is worrying that the LSC took it upon itself to deny Ms Humberstone even the possibility of being legally aided. “Possibility” because in fact, the LSC is not the final decision maker when it comes to granting funding in circumstances such as these. The final decision on whether or not Ms Humberstone would be granted legal aid would ultimately have been up to the Lord Chancellor, upon receiving a request from the LSC. The decision that was being challenged in the courts, therefore, was the LSC’s refusal to make such a request on Ms Humberstone’s behalf.

The LSC tried to disclaim responsibility for the decision by claiming that the law and the relevant guidance tied its hands. This is not an entirely accurate representation of the circumstances in which the LSC found itself, however. While the legislation states that the LSC may not authorise funding for legal representation at an inquest, it goes on to provide that the Lord Chancellor may authorise funding in individual cases upon a request by the LSC.[3] This is an enabling provision, not a restricting provision. The case law on the other hand, concerns those instances where article 2 of the ECHR engaged and where legal aid should be granted as of right. The courts had previously indicated that such a right would only usually arise in exceptional cases. However, this does not mean that the LSC could only request funding in exceptional circumstances. Rather it means that applicants will only be able to challenge a refusal (i.e. assert a positive legal right to funding) in exceptional circumstances (as indicated above, in Humberstone, the Court of Appeal was very critical of this). The Guidance, which is issued by the Lord Chancellor, also states that where there is a wider public interest or where article 2 ECHR is engaged, funding will only normally be granted in exceptional circumstances.[4] However, even where there is no wider public interest or engagement of article 2, the Lord Chancellor may still exercise a residual discretion to grant funding – albeit that the Guidance states that s/he will only exercise this discretion in “extremely unusual” cases.

The Guidance, however, is just that: it is guidance to which the LSC should have regard. It is not, nor was it designed to be, a collection of rigid, legally binding rules. At the time of the LSC’s decision letter, there was anyway both an arguable case that article 2 was engaged, and, in the event that it was not, that this was still a case which should engage the Lord Chancellor’s residuary discretion. That there was at least an arguable case is illustrated by both the High Court and Court of Appeal judgments, both of which found in favour of Ms Humberstone. If it was at least arguable that the terms of the guidance were fulfilled, it is suggested that the final decision should have been left to the Lord Chancellor.

The LSC is a “non-departmental public body”, which is sponsored by the Ministry of Justice. The cost to the taxpayer of publicly funded legal aid is considerable, and the LSC is inevitably subject to significant budgetary pressures. However, the approach taken by the LSC at least appears to indicate that it sees its main task as denying legal aid whenever it possibly can, and granting it only where a refusal might lead to a successful challenge in the High Court. The independence of the LSC is crucial if the public is going to have any faith in the objectivity of its funding decisions. If its hands were really tied by the law, it could have nevertheless acknowledged some of the strengths of Ms Humberstone’s arguments for public funding. However, its decision letter either simply ignored arguments in her favour or denied they had any force at all. For a body which purportedly sees its role as assisting the needs of justice, this is surprising. The coroner, a High Court judge, and three Lords of Appeal all saw some strength in these arguments, and all criticised the LSC’s approach.

If the LSC does see its role as a facilitator of justice, it should perhaps assesses the individual merits of cases in terms of the needs of justice, and deny funding for worthy applications only when its hands are truly tied by the law. As argued above, the legal representation of the deceased’s next of kin in inquests where the state may bear some responsibility for a death, holds significant value for the family of the deceased and the wider public in terms of public accountability and open justice.