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Notice of Consultation on Proposed Amendments to Guidance on the Public Funding of Legal Representation at Inquests Under Section 6 (8)(B) of the Access to Justice Act 1999

• Letter of consultation
  
• Background / Summary
  
• Draft guidance
  
• Timing
  

This consultation closed on 20 May 2004.

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Dear Consultee,

Notice of Consultation on Proposed Amendments to Guidance on the Public Funding of Legal Representation at Inquests Under Section 6 (8)(B) of the Access to Justice Act 1999

I am writing to consult you on amendments we propose to make to the Lord Chancellor's guidance on exceptional funding. We intend to bring the amended guidance into force in June 2004.

The proposed changes extend the types of cases that the Lord Chancellor will consider for exceptional funding, and therefore we anticipate the changes to be uncontroversial. However, we are conscious that legal practitioners may be able to offer pertinent advice on the proposed wording, or to bring to our attention aspects that we had not considered. We are therefore conducting a limited consultation outside the Code of Practice on Written Consultation. We are contacting the relevant professional bodies, the Home Office, the Department of Health, Inquest and individual solicitors concerned with this type of work. Please send your response to me at the address at the top of this letter by 20 May 2004. Responses may be sent by email at the address given. Unless you express confidentiality in your response, we may make it publicly available under the Open Government Code.

Section 6 (8)(b) of the Access to Justice Act 1999

Lord Chancellor's Guidance: Exceptional Funding for Representation at Inquests

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Background / Summary

The recent ruling in the case of R (Amin) v Secretary of State for the Home Department [October 2003] stated that the State's duty to investigate the death of a prisoner in its custody was not discharged unless, as a minimum standard of review, there was an appropriate level of both publicity and participation by the next of kin. The Court of Appeal R (Khan) v Secretary of State for Health [October 2003] further established that public funding for an inquest or an inquiry was to be available to the bereaved relatives of a deceased where the death was caused by an agent of the state. In both cases the Courts considered Article 2 of the European Convention on Human Rights to be engaged.

The proposed amendments would extend exceptional funding for representation at Inquests to cases involving agencies of the state, as required by Article 2. This would still be subject to the proviso that representation should be necessary to assist the coroner in carrying out an effective investigation.

Since the Lord Chancellor's direction of November 2001, representation at inquests related to a death in custody has fallen within the normal scope of the CLS scheme. From 1 December 2003 the Lord Chancellor has the power to waive the upper eligibility limit for public funding in both death in custody cases and other Inquests involving agents of the State. This will be in cases in which due to the circumstances it is unreasonable to expect the Applicant or wider family to bear the full costs of the hearing. It does not preclude requests for a contribution from the Applicant or wider family.

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Draft Guidance

The following is draft guidance on when it may be appropriate for public funding to be provided for legal representation at inquests, taking into account the recent guidance of the court in the cases of Khan and Amin and the new power to waive eligibility limits inserted by the CLS (Financial) (Amendment No. 2) Regulations 2003. This guidance would replace paragraphs 6 and 7 of the Lord Chancellor's existing guidance on individual case funding which is set out at section 3.4 of the Commission's Funding Code guidance.

Funding for Representation at Inquests

6. "I have issued a Direction with effect from 1 November 2001 bringing representation at certain inquests within the normal scope of CLS funding [see section 3.13 of this guidance]. The following guidance should be taken into account by the Commission both when considering applications which fall within that Direction and when considering applications relating to other inquests under the section 6(8)(b) procedure.
7. 7. Before approving an application I would expect the Commission to be satisfied that either:
   
   1. there is a significant wider public interest in the applicant being legally represented at the inquest; or,
   2. the death concerns agencies of the state and funded representation for the immediate family of the deceased is necessary to assist the coroner to carry out an effective investigation into the death, as required by Article 2 of ECHR.
   For most other inquests, the coroner will be able to carry out an effective investigation without the need for funded representation.
8. In considering whether funded representation may be necessary to comply with the Article 2 obligation all the circumstances of the case must be taken into account including:
   
   1. the nature and seriousness of any allegations which are likely to be raised at the inquest;
   2. whether other forms of investigation, including internal investigations by a public body, have taken place or are likely to take place and whether the family have or will be involved in such investigations;
   3. whether the family may be able to participate effectively in the inquest without funded legal representation it is recognised that this may be difficult where the death was particularly traumatic for the family, for example inquests concerning the death of a young child;
   4. any views expressed by the coroner. There is however no requirement to seek the coroner's views before determining an application.
9. In all applications for exceptional funding consideration should be given to whether any alternative source of funding exists, including whether there are other family members who can reasonably be expected to pay for or contribute to the costs of representation. In general applicants must satisfy the eligibility limits for Legal Representation as set out in regulations. However with effect from 1 December 2003 I have the discretion to waive financial eligibility limits and contributions relating to representation at an inquest where the Commission requests me to do so (Regulations 5C and 38(8A) of the CLS (Financial) Regulations 2000 as amended). I will consider such a waiver in relation to inquests which satisfy the guidance set out above if, in all the circumstances, it would not be reasonable to expect the family to bear the full costs of representation at the inquest. Whether this is reasonable will depend in particular on the applicant's assessed disposable income and capital, other financial resources of the family, the estimated costs of providing representation, the history of the case and the nature of the allegations to be raised.
10. Where it is appropriate for a contribution to be payable this may be based upon the applicant's disposable income and disposable capital in the usual way ignoring upper eligibility limits. As funding will cover only one off advocacy services at the inquest it will not usually be appropriate for more than one month's assessed income contribution to be payable. Contributions should always be based on what can reasonably be afforded by the applicant and his or her family in all the circumstances of the case."

Insert additional paragraph at the end of section 3.13 of the Funding Code guidance (the direction and guidance on police and prison custody cases).

"4. Where an application falls within the above direction but the client is not within normal income and capital eligibility limits,consideration may be given to waiving those limits under Regulations 5C and 38(8A) of the CLS (Financial) Regulations 2000 as amended. However only the Secretary of State has power to waive eligibility levels and contributions. An application for funded representation at a death occurring in police or prison custody or during the course of police arrest, search, pursuit or shooting may be approved on the merits by the Commission but will then need to be submitted to the Department for Constitutional Affairs if the Commission considers that waiver of eligibility or contribution levels may be appropriate. See further the Secretary of State's guidance at section 3.4."

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Timing

Subject to the responses from the consultation, we would wish to introduce the new guidance as soon as possible. We will require your response to be submitted to us by 20 May 2004 . A copy of this letter is being sent to the Bar Council, the Law Society, the Legal Aid Practitioners Group, the Legal Action Group, Inquest, and various individual solicitors, as well as the Home Office and Department of Health.

Yours sincerely,

 

 

 

Michael Tant

Public Legal Services Division

 

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