UK High Court Considers Scope of Duty to Investigate and Provide Legal Representation in Response to Unnatural Death
Main(R) v Minister for Legal Aid [2007] EWHC 742 (2 April 2007)
The UK High Court of Justice has quashed a decision by the Minister for Legal Aid to refuse the family of two people killed in a train crash funding to be legally represented at the coroner's inquest. Central to the decision was the finding that funding was necessary to carry out an effective investigation into the accident pursuant to art 2 of the European Convention on Human Rights.
Facts The claimant’s mother and sister died in a train collision, when they were thrown through the unlaminated carriage windows. The victims’ deaths were to be investigated at a coroner’s inquest. One of the reasons for the inquest was the fact that the right to life under art 2 of the ECHR imposes on the State an obligation to carry out an investigation into unnatural deaths. The claimant sought ‘exceptional funding’ under the Access to Justice Act 1999 (UK) to appear at the coroner’s inquest. The UK Minister for Legal Aid (‘Minister’) has a discretion to grant such funding on the recommendation of the Legal Services Commission (‘LSC’) on the basis that: (a) there is a significant wider public interest in the claimant being legally represented at the inquest; or (b) funded representation for the family is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by art 2 of the ECHR. The LSC recommended that the Minister grant funding to the claimant. However, the Minister rejected the application, instead authorising limited funding for preparatory legal work, excluding advocacy at the inquest. The claimant applied for judicial review, contending that there was a significant wider public interest in him being represented at the inquest, and that his legal representation was necessary for a proper investigation into his family’s deaths, in accordance with art 2 of the ECHR. Findings Significant Wider Public Interest The High Court found that the Minister had acted unreasonably in failing to take account of the conclusions reached by the LSC concerning the significant wider public interest. The claimant was the only one able to represent the general public interest in promoting passenger safety on public trains. On this basis, the Court quashed the Minister’s decision refusing funding. Article 2 ECHR In relation to the issue of art 2 of the ECHR, the High Court disagreed with the Minister’s finding that funding for the claimant was not necessary for the coroner to properly investigate the facts. The Court emphasised that the relevant question was not whether such funding was necessary, but rather whether it was likely to be necessary. The High Court also stated that in this case, an art 2 investigation ‘must ensure so far as possible that dangerous practices and procedures are identified and rectified, and risk of future likely deaths minimised.’ The Court held that the Minister should have taken into account the fact that ‘it is only through representation of the family that the wider public interest will be represented’. Further, the legitimate interests of the claimant could not be safeguarded by the limited offer of funding, which extended only to preparing representations and excluded advocacy during the inquest. On this basis, funded legal representation was likely to be necessary for an effective art 2 investigation. Implications for the Victorian Charter The decision in Main(R) v Minister for Legal Aid may influence the interpretation of the right to life and the right to a fair hearing contained in the Victorian Charter. Notably, s 32(2) of the Charter specifically provides that ‘the judgments of domestic foreign and international courts…relevant to a human right may be considered in interpreting a statutory provision.’ This UK decision may be used to interpret public authorities’ duties in respect of the right to life in s 9 of the Charter. Although s 9 does not expressly include a duty to investigate unnatural deaths, such a duty may be read into the Charter on the basis of substantial jurisprudence from the UK and the European Court of Human Rights. Accordingly, this UK judgment may assist in shaping the scope of any duty to investigate and the related issue of granting publicly funded legal representation to parties to the investigation. Further, in determining the meaning of a ‘fair’ hearing under s 24 of the Charter, Victorian courts may be influenced by the finding of the UK High Court that the claimant’s legitimate interests could only be properly safeguarded by publicly funded legal representation. Although the decision was not directly based on the right to a fair hearing, it may nevertheless assist in arguments for broader categories of publicly funded legal representation in not only criminal, but civil proceedings. The decision is available at http://www.bailii.org/ew/cases/EWHC/Admin/2007/742.html Eugenia Levine, Human Rights Law Group, Mallesons Stephen Jaques