Right to State-Funded Legal Aid in Coronial Inquest: Legal Aid Funding May be Necessary for State to Discharge Investigative Obligation

Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin) (13 April 2010)

Article 2 of the European Convention of Human Rights provides that the right to life is a fundamental human right that shall be protected by law.

European jurisprudence has interpreted art 2 as imposing a duty on the state to provide a mechanism for effective investigations into certain deaths.  That mechanism includes coronial inquests.

The main issues in this case were whether the duty arising under art 2 applied in circumstances where legal aid funding for legal representation for family members of the deceased at a coronial inquest had been sought, and whether that duty had been breached by the state denying such funding.

Facts

R (Humberstone) v Legal Service Commission was an application for judicial review from a decision of the Legal Services Commission not to recommend an application for legal aid funding to the Lord Chancellor for representation of a mother, whose child's death was being investigated by the Coroner.

Dante Lee Kumara died in hospital from a severe asthma attack on 1 July 2008.  There were complex and conflicting accounts as to the cause of Dante's death.  Dante's medical practitioners had said that his mother, Miss Humberstone, had a history of not providing adequate care for him in relation to his asthma.  There was an allegation by Miss Humberstone that the paramedic who responded to Dante's asthma attack was negligent because he dropped a clip from the nebuliser into Dante's throat during resuscitation.

Miss Humberstone applied for legal aid funding to be represented at the coronial inquest.  Funding was denied by the Commission.  Miss Humberstone sought the Commission to recommend her application for exceptional funding to the Lord Chancellor under s 6(8)(b) of the Access to Justice Act 1999 (UK).  Such a recommendation was a necessary pre-condition to the grant of such funding by the Lord Chancellor.  The Commission refused to make the recommendation sought by Miss Humberstone on two bases:

• that art 2 did not apply to the circumstances of the case at all, because there was no allegation of gross negligence by state agents; and
• that if art 2 did apply, Miss Humberstone did not require legal representation at the coronial inquest for the requirement for an effective investigation to be met.

The Lord Chancellor's Guidance stated relevantly that, before making a recommendation to the Lord Chancellor, the Commission should be satisfied that funding would be necessary to allow the coroner to conduct an effective investigation into the death as required by art 2.  The Guidance also provided that the Commission must consider all the circumstances of the case, including such matters as the nature and seriousness of any allegations likely to be raised at the inquest, including allegations against the person who seeks funding for representation, and whether the family can participate effectively without being represented.

Decision

The Court allowed the judicial review and quashed the decision of the Commission not to recommend the application for public funding to the Lord Chancellor.  The parties were given 21 days to lodge an agreed draft order to follow the judgment.

The Court found that art 2 applied in Dante's case, and that there was an obligation to conduct an effective investigation into the death.  The Court considered the relevant UK authorities and held that the state may have a duty to provide a mechanism for the investigation of a death even where there is no possibility that a state agent breached the primary duty imposed by art 2 (protection of life by the law).  The state, it was held, may be 'sufficiently implicated in a death to trigger the obligation of investigation' absent a breach of the primary duty.  This may occur, as was the case here, where the deceased was in the care of a state agent (an NHS hospital) at the time of death.

The Court then considered whether the obligation to carry out an effective investigation was breached by the Commission's refusal.  The Court asked 'whether the Commission lawfully concluded that, in all the circumstances of the case, funded representation for Miss Humberstone was not necessary to enable the Coroner to carry out an effective investigation into Dante's death.'  The Court held that the Commission had not reached a lawful conclusion.

The Court held that the Commission had not properly taken account of the nature and seriousness of the allegations.  There were suggestions that Miss Humberstone may have caused or contributed to Dante's death, and the Coroner himself had considered – and informed the Commission – that such suggestions were likely to be made at the inquest.  The Commission had overlooked the possibility that the inquest would involve allegations that Miss Humberstone had caused or contributed to Dante's death.

This conclusion also 'fatally undermined' the Commission's conclusion that Miss Humberstone could participate effectively in the inquest without representation.  Her inability to do so was compounded by her limited education, ability and experience, and the depression from which she suffered.  The inquest was likely to be complex, a matter exemplified by the fact that every other party at the inquest would be legally represented (some at public expense).

Relevance to Victorian Charter

It is well established that the right to life imposes three different duties upon the state, namely:

• a negative duty to refrain from taking life, save in exceptional circumstances;
• a positive duty to properly and openly investigate deaths for which the state might bear some responsibility or in which the state may in some way be implicated; and
• a duty to take positive steps to protect the lives of those within its jurisdiction: see, eg, Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [76].

This case clearly establishes that the duty to properly and openly investigate deaths may extend to enabling the effective participation of affected persons in those investigative processes.  This has implications for the availability of legal aid funding in Victoria and participation in coronial proceedings.

The decision is available at www.bailii.org/ew/cases/EWHC/Admin/2010/760.html.

Claire Nicholson is a Law Graduate and Duncan Travis a Senior Associate with Allens Arthur Robinson