Right to Life: When is the State Obliged to Fund Legal Representation at Coronial Inquests?

Legal Services Commission v Humberstone, R (On the application of) [2010] EWCA Civ 1479 (21 December 2010)

The England and Wales Court of Appeal has held that the state’s obligation to conduct an effective and proactive investigation into a death arises where the circumstances gave rise to the possibility of a breach of the state’s positive duty to protect life.  This duty extends to involving the next of kin in the proceedings to the extent necessary to safeguard their legitimate interests.

Facts

Ms Humberstone’s son, Dante, died in hospital following an asthma attack.  It was alleged that Ms Humberstone had not complied with his asthma treatment regime, contributing to his death.  Evidence also suggested clinical negligence and delayed attendance of an ambulance due to a despatch error.  Ms Humberstone was arrested on suspicion of manslaughter was but not charged.  She applied to the Legal Aid Commission (Legal Aid) for funding for legal representation at Dante’s inquest.  It appeared likely that Ms Humberstone’s care of Dante would be called into question, that her ability to comprehend the proceedings was limited and that she might incriminate herself.  Other parties were to be represented at public expense.

A government policy provided that Legal Aid could be authorised to fund legal representation for family members in relation to inquests in certain circumstances.  Representation would only be funded where, inter alia, it was likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by art 2 of the European Convention on Human Rights, which enshrines the right to life.  The policy directed Legal Aid to consider all relevant circumstances, including the nature and seriousness of any allegations likely to be raised at the inquest and whether family members could participate effectively without being represented.

Legal Aid refused to recommend that the application be granted, as it considered that art 2 was not engaged or alternatively that representation was not required in order for the Coroner to carry out an effective investigation into the death.

The central issue was whether the obligation to conduct an effective investigation into a death only arose where the state had arguably breached its substantive obligation to protect life, or whether the duty arose in all cases where the deceased was in the care of the state at the time of death (such as receiving hospital treatment).

Decision

The Judge at first instance took a broad approach to the duty of investigation, holding that the obligation extended to cases where there was ‘no possibility’ that the state had breached its primary duty: it was enough that Dante was in hospital at the time of death.  Quashing Legal Aid’s decision, he held that refusal of funding had been unlawful given that art 2 was engaged.

The Court of Appeal held that while Hickinbottom J at first instance had overstated the circumstances in which the investigative duty applied, his conclusion was ultimately correct.  The state’s duty under art 2 comprised three separate elements, being:

• to protect life;
• to establish a judicial system for the investigation of deaths; and
• to proactively conduct a thorough and effective investigation into the circumstances of a death where evidence suggested a possible breach of the substantive duty to protect life.

Where a death in hospital raises simple medical negligence, the state’s obligation extends only to the establishment of an effective judicial system for investigating the cause of death and does not give rise to the ‘duty of enhanced investigation.’  This duty would only arise in the narrower range of cases where it is arguable that the state has been in breach of its substantive duty.  The allegation there had been a delay in despatching an ambulance raised systemic issues, meaning the duty of enhanced investigation was engaged.  Accordingly, Legal Aid funding should be provided where representation of the family member was likely to be necessary for the effective conduct of the inquest, including to enable the family member to play an effective part in the proceedings.  Ms Humberston’s personal characteristics indicated a limited capacity to understand and take part in the proceedings without legal representation.

The Court also raised concerns about aspects of the policy relied upon by Legal Aid in its decision-making.  The Court criticised the policy for focusing unduly on the needs of the coroner, in providing that representation would be funded where necessary to assist the coroner to investigate the case effectively and establish the facts.  The policy did not provide sufficient focus on the principle that for an investigation to be effective, the family must be able to play an effective part.  The Court also criticised the policy’s statement that only in ‘exceptional cases’ would representation be needed in order to comply with the state’s obligation, which appeared to create a presumption against the grant of representation.  The Court observed that the duty to provide representation in art 2 cases extended to all cases where representation was likely to be necessary to enable the next of kin to play an effective part in proceedings.  In many cases family members will need funded representation to effectively participate in an inquest.  References to ‘exceptionality’ were likely to divert the attention of the decision-maker from the question properly to be considered.

Although the Court did not discuss Ms Humberstone’s other rights which were engaged by the decision (fair hearing, self-incrimination, equality before the law, family life) it was evident that these considerations concerned the Court, which remarked on Ms Humberstone’s limited cognitive abilities as well as the implications for any future criminal proceedings and potential child protection proceedings in respect of her other children.

Relevance to the Victorian Charter

Section 9 of Victoria’s Charter provides that everyone has the right to life and must not arbitrarily be deprived of life.  This case provides guidance concerning the engagement of the state’s duty to investigate a death that implicates the state’s primary duty to protect life.  It confirms that the duty extends to enabling the effective participation of affected family members in the inquest and that funding legal representation is an important aspect of this obligation.  The decision also signals the relevant considerations to guide funding decisions.  Policies guiding decision-makers should give effect to relevant Charter rights and not purport to fetter their discretion, for example by limiting funding to ‘exceptional cases’.  The decision also indicates that the family members’ personal characteristics and the likelihood that the proceedings will engage other Charter rights are also important considerations in determining whether to provide legal representation.

The decision is at www.bailii.org/ew/cases/EWCA/Civ/2010/1479.html.

Caroline Henckels is a PhD student at the Faculty of Law, University of Cambridge