“Inequality of arms?” – Jonathan Landau considers key proposals for reforming the Coroner Service for New Law Journal

This article, written by Jonathan Landau, was originally published on 28th June on New Law Journal (www.newlawjournal.co.uk)

The Justice Committee report on the Coroner Service (published 27 May) included 26 paragraphs of conclusions and recommendations. The two that would have the greatest impact if implemented are:

• a recommendation that the bereaved have access to non-means tested legal aid to fund advocacy at inquests in any case where a public authority is represented, and 
• a renewed call for a National Coroner Service. 

Public Funding for Representation at Inquests

The current position is that legal aid to fund advocacy at inquests is only available in very limited cases:

(a)    Where the state has a duty to conduct an enhanced investigation under Article 2 of the ECHR, and family representation is necessary to discharge that duty; or

(b)    The Director of Legal Aid Casework makes a determination that there is a wider public interest in granting legal aid based on a likelihood that of significant benefits for a class of person, other than the applicant and members of the applicant’s family.

In practice, funding is limited to some of the most serious cases involving state involvement.  

In his final report in 2017, the then Chief Coroner recommended that the Lord Chancellor give consideration to amending its Exceptional Funding Guidance (Inquests) so as to provide funding for families where the state has agreed to provide separate representation for one or more interested person.  Also in 2017, the same call was made by Bishops James (Hillsborough Report), Dame Elish Angiolini (Report on deaths in police custody), and Lord Bach (Commission on Access to Justice).

The Ministry of Justice reviewed Legal Aid for inquests in 2018-19 and rejected the idea citing:

• the cost (estimated between £30 million and £70 million).
• the risk of undermining the inquisitorial nature of inquests.
• the risk of reinforcing the misconception that the role of inquests is to apportion blame rather than to determine facts and learn lessons.

The proposal for non-means tested legal aid would be welcome by the bereaved, those who represent them and many coroners and inquest lawyers.  The inequality of arms may appear unfair to families and often is unfair in practice. Families are rarely equipped to make representations on law and may only have a very basic understanding of inquests, much less experience to inform an effective strategy.

Since the matter was last reviewed, however, the demands on the public purse have ballooned due to Covid.  It is consequently difficult to see the Government agreeing the proposal by October as recommended by the Justice Committee.The call for funding to be non-means tested is particularly unlikely to succeed given that it is a feature of the Legal Aid scheme for all criminal cases and most civil cases. For those advocating a change in the current position, a half-way house of means tested legal aid may be a more achievable objective in the first instance.

National Coroner Service

The call for a National Coroner Service is also not new.  The report notes that both the first and second Chief Coroner suggested this.  Alex Chalk, the Under Secretary of State  for Justice gave evidence that the proposal would be extraordinarily expensive, citing the experience of bring the Magistrates’ Courts under the Ministry of Justice.  There is no evidence in the report, however, of how the ongoing costs would compare to the current arrangements.  One might expect there would be at least some economies of scale.  One coroner also raised concerns that a national service could lower standards in areas that currently provide a good service.

The Committee reported, however, that the majority of witnesses including two Chief Coroners, supported the call for a national service.

The chief reason was the inconsistency in resources and practices.  Those practising in the field will be well-aware of such variation.  In terms of resource, some coroner areas have multiple courts, several Area Coroners, and dedicated court ushers and clerks whilst others have only one court, no Area Coroners and no ushers or clerks.  That variation significantly affects the ability of the local service to conduct inquests promptly and effectively.  

As noted by one of the pathologists who gave evidence, there is also variety in the administration of the coroner’s offices.  He is able to pick up the phone to one area and get through immediately, whilst in the other area, he has to email and hope for a reply in three or four days’ time.  Again, that variation will be all too familiar to inquest lawyers.

Alex Chalk was right to point out that guidance, training and reducing the number of coroner areas can help to reduce inconsistency.  However, that is plainly not enough to eradicate differences between areas given that a key problem is the variation in local funding.  More affluent areas are more able to afford better services.  Ring-fenced central funding might be another way of improving local services whilst retaining the advantages of local management and avoiding the costs of centralisation.   The Committee did not consider this as an alternative.  In any event, as with all policy proposals that will incur significant cost, there would need to be, as Alex Chalk put it, a compelling argument for change.  If some areas are unable to clear the inquest backlog caused by Covid due to lack of resource, a compelling argument may indeed emerge.  
 

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Jonathan Landau

Call 2004

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