COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QBD, Administrative Court
Mr Justice Hickinbottom
Strand, London, WC2A 2LL
B e f o r e :
VICE PRESIDENT OF THE COURT OF APPEAL, CIVIL DIVISION
LADY JUSTICE SMITH
LORD JUSTICE LEVESON
| Legal Services Commission
|- and -
|The Queen on the application of Humberstone
|The Lord Chancellor
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Stephen Simblet (instructed by Howells LLP) for the Respondent
Hearing date : 2 November 2010
Crown Copyright ©
Lady Justice Smith:
Introduction and Legal Framework
"The Lord Chancellor:
(a) may by direction require the Commission to fund the provision of any of the services specified in Schedule 2 in circumstances specified in the direction, and
(b) may authorise the Commission to fund the provision of any of those services in specified circumstances, or if the Commission request him to do so, in an individual case."
"The Lord Chancellor authorises the Commission to fund advocacy services on behalf of the immediate family of the deceased at an inquest concerning a death:
(i) in police or prison custody;
(ii) during the course of police arrest, search, pursuit or shooting;
(iii) during the compulsory detention of the deceased under the Mental Health Act 1983.
Such services may be funded where the Commission is satisfied that funded representation is necessary to assist the coroner to investigate the case effectively and establish the facts. The Commission should have regard to my guidance on funding individual cases under section 6(8)(b) of the Act when considering cases under this direction."
The factual background
The application for funding
(a) significant wider public interest, as defined by the Funding Code Guidance, in the applicant being legally represented at the inquest; or
(b) a likelihood that funded representation for the family of the deceased is necessary to enable the Coroner to carry out an effective investigation into the death, as required by Article 2 ECHR.
Article 2 of the European Convention on Human Rights
The Proceedings for Judicial Review
The judgment of Hickinbottom J
"8. Before approving an application I would expect the Commission to be satisfied that either:
There is a significant wider public interest... in the applicant being legally represented at the inquest; or
Funded representation for the family of the deceased is likely to be necessary to enable the coroner to carry out an effective investigation into the death, as required by Article 2 of ECHR….
9. For most inquests where the Article 2 obligation arises, the coroner will be able to carry out an effective investigation into the death, without the need for advocacy. Only exceptional cases require the public funding of advocacy in order to meet the Article 2 obligation. In considering whether funded representation may be necessary to comply with this obligation, all the circumstances of the case must be taken into account, including:
The nature and seriousness of any allegations, which are likely to be raised at the inquest, including in particular any allegations against public authorities or other agencies of the state.
Whether other forms of investigation have taken place, or are likely to take place, and whether the family have or will be involved in such investigations.
Whether the family may be able to participate effectively in the inquest without funded legal representation. This will depend on the nature of the issues raised and the particular circumstances of the family. In most cases, a family should be able to participate effectively in the inquest without the need for advocacy on their behalf. Legal Help can be used to prepare a family for the inquest: to prepare submissions to the coroner setting out the family's concerns and any particular questions they may wish the coroner to raise with witnesses.
10. The views of the coroner, where given, are material though not determinative. There is however no expectation that the coroner's views should be sought before making an application or that the coroner will wish to express a view."
"5. This category of cases arises from the need under Article 2 of the ECHR to ensure that certain deaths are effectively investigated by the state.
6. The Commission, in assessing this category of case, looks to the guidance provided in the judgment in [Khan] as to the particular circumstances in which the Article 2 investigative obligation requires funding to be provided for the deceased's family to be legally represented at the inquest or at an equivalent investigation.
7. Khan states that the coroner's inquest is the natural occasion for the effective judicial inquiry into the cause of a death that the Convention requires. However, the court also recognised that the holding of an inquest could not fulfil the Article 2 obligation if the family of the deceased was unable to play an effective part in it. The court accepted that in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented. However, there would be exceptional cases where such representation was necessary for the Article 2 obligation to be fulfilled. The court considered that the case in Khan was such a case.
8. The Commission, in considering whether a case can reasonably be said to fall into the 'exceptional' category, takes into account the following:
(a) The nature and seriousness of any allegations which are likely to be raised at the inquest, in particular any allegations against public authorities or agencies of the state. Particular regard will be given to any of the following circumstances: closely related multiple and avoidable deaths from the same cause within the same institution; criminal conduct; attempts to conceal information or otherwise interfere with an investigation into the circumstances surrounding the death.
(b) Whether other forms of investigation have taken place, or are likely to take place, and whether the family have or will be involved in such investigations.
(c) Whether the family may be able to participate effectively in the inquest without funded legal representation. This generally depends on the nature of the issues raised and the particular circumstances of the family.
(d) Any views, concerning the necessity of representation, expressed by the coroner, although these are not determinative.
9. The starting point for our consideration in these cases is that, in the majority of cases, a family can participate effectively in the inquest without the need for advocacy on their behalf. In general, the ability to attend and understand the proceedings together with an opportunity to raise any particular matters of concern to them with the coroner would be sufficient to ensure participation.
10. In The Queen on the application of Tobias Main v The Minister for Legal Aid  EWCA Civ 1147 [("Main")], the Court of Appeal held that the coroner could reasonably be expected to carry out a proper investigation into the deaths of the deceased without full representation of the family, in a case where the actual facts appeared unlikely to be in dispute, and there were not suspicions of serious wrong-doing or dereliction by an agent or agents of the State. It was emphasised that an inquest is an inquisitorial and not an adversarial process.
11. Legal Help is available to prepare a family for the inquest: and, as stated in Main, to make submissions and identify any particular matters which they wanted the coroner to explore. It is only advocacy before the coroner that is an excluded service under the Act."
"They [i.e. the principles of Strasbourg jurisprudence derived from Article 2]… require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or private sector, can be determined and those responsible made accountable…".
"We recognise [the cases] tend to refer to the state's positive obligation to set up an effective judicial system but it seems to us that central to the court's approach throughout is that the relevant events should be subject to an effective investigation. In order to comply with Article 2, the state must set up a system which involves a practical and effective investigation of the facts….
… It seems to us, however it is analysed, the position is that, where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability."
"… to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others." (Amin at  per Lord Bingham: see also R (L (A Patient) v Secretary of State for Justice  UKHL 68 ("L") especially at  and following per Lord Phillips of Worth Matravers)."
"The state may be sufficiently implicated in a death to trigger the obligation of investigation even without any likelihood or even possibility of the state having breached its primary duty under Article 2 to preserve life."
"The obligation on the state … may arise in circumstances where the deceased was not in the particular care of the state. … Indeed, the trend in these cases is towards recognising that the state has an obligation to ensure that an effective investigation is conducted in any death in which there may be doubt as to the circumstances of death."
The Appeal to this Court – the submissions
Engagement of article 2
"I have not found it is all easy to analyse those four Strasbourg authorities on the application of article 2 to cases of alleged medical negligence. The conclusions I have reached in relation to them, however, are as follows:
(i) Simple negligence in the care and treatment of a patient in hospital, resulting in a patient's death, is not sufficient in itself to amount to a breach of the state's positive obligations under article 2 to protect life.
(ii) Nevertheless, where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation. Given (i) above and the general context, the reference here to potential responsibility for loss of life must in my view include a potential liability in negligence. Thus the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligations to protect life.
(iii) There is a degree of confusion in the expression of how the need for an effective investigation fits within the structure of article 2. Some of the language used links the requirement of an effective investigation with the positive obligation to establish a framework of legal protection, including an effective judicial system for determining the cause of death and any liability on the part of the medical professionals involved. In other places, on the other hand, there is express reference to the separate procedural obligation to investigate. Two considerations lead me to the view that the former rather than the latter is the preferable analysis. First, in each of the cases, the availability of a civil action in negligence and/or the applicant's settlement of such an action is central to the court's conclusion that there has been a sufficient investigation of the death: ie it is the existence of an effective judicial system that seems to be decisive. Secondly, Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2002-I, p 1, is both the most recent decision and also a decision of the Grand Chamber; and the judgment in that case analyses the matter solely in terms of the positive obligation to set up an effective judicial system, without reference to the separate procedural obligation to investigate.
(iv) Whether the matter is analysed in terms of the positive obligation to set up an effective judicial system or in terms of the procedural obligation to investigate may not ultimately be of great significance. Although certain minimum criteria are laid down, the actual nature of an investigation required under article 2 varies according to context; and the Strasbourg cases on deaths resulting from alleged medical negligence show that, if the procedural obligation does apply, the range of remedies available under the judicial system (criminal, civil and possibly disciplinary) can be sufficient to discharge it.
(v) On my preferred analysis, however, there is no separate procedural obligation to investigate under article 2 where a death in hospital raises no more than a potential liability in negligence. In such a situation an inquest does play a part, though only a part, in the discharge of the state's positive obligation under article 2 to set up an effective judicial system for determining the cause of death and questions of liability. But it does not need to perform the function of discharging a separate investigative obligation on the state under article 2. It will only be in exceptional cases, where the circumstances give rise to the possibility of a breach of the state's positive obligations to protect life under article 2, that the separate procedural obligation to investigate will arise and an inquest may have to perform the function of discharging that obligation.
(vi) It also seems to me to follow from my preferred analysis that an inquest cannot be challenged on the ground that it is insufficient to meet the state's positive obligations under article 2. The totality of available procedures, including most obviously the possibility of a civil claim, in negligence, must be looked at in order to determine whether the state has complied with the positive obligation to set up an effective judicial system. Since an inquest forms only one part of the whole, its failure to provide the totality cannot be a ground for finding it incompatible with article 2. This is a sufficient reason for rejecting an alternative submission made briefly by Mr Powers in argument, which I have not otherwise mentioned, to the effect that the failure to hold an effective inquest constituted a breach of the state's positive obligations under article 2."
"Before going any further we think it may be helpful to clarify what is meant in this context by saying that article 2 is or is not engaged. For reasons which will become apparent later in this judgment, we are satisfied that article 2 is engaged in the sense that it gives rise to certain obligations on the part of the state whenever a person dies in circumstances which give reasonable grounds for thinking the death may have resulted from a wrongful act of one its agents. A common example is where there are grounds for thinking that a death may have been caused by negligence on the part of a member of staff in an NHS hospital. In such cases the question is not whether article 2 imposes any obligation on the state in relation to the investigation of the death, but whether, in order to discharge its obligation under article 2, the state must carry out an appropriate investigation itself (which in this country will normally be done through the medium of the coroner's inquest) or whether it discharges its obligation by establishing a satisfactory system under which the death can be properly investigated by civil, criminal, disciplinary or other procedures or a combination all of them. As we understand it, when the parties and the judge (Elias J as he then was) spoke in terms of article 2 being engaged what they meant was that the state had an obligation to investigate the death itself through the medium of a coroner's inquest which therefore had to comply in all respects with the requirements of that article."
"105. Subject to what is said in paras 97-103 above (where the court expressed its reservations about the effectiveness of adversarial civil proceedings) we agree with those conclusions. It seems to us that, however it is analysed, the position is that, where a person dies as a result of what is arguable medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability. Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation. Thus the question in each case is whether the system as a whole, including both any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of article 2 as identified by the European court in the cases to which we have referred, namely (as just stated) the practical and effective investigation of the facts and the determination of civil liability.
106. The question is whether the system in operation in England in this case meets those requirements. In our opinion it does. The system includes both the possibility of civil process and, importantly, the inquest. We can understand the point that the possibility of civil proceedings alone might be sufficient because they do not make financial sense and may not end in a trial at which the issues are investigated. However, in the context of the other procedures available, an inquest of the traditional kind, without any reading down of the 1988 Act (The Coroners Act 1988), by giving a wider meaning to "how" as envisaged in the Middleton case  2 AC 182, and provided that it is carries out the kind of full and fair investigation which is discussed earlier in this judgment … in our opinion satisfies the requirement that there will be a public investigation of the facts which will be both practical and effective.
107. In these circumstances, while article 2 is engaged in the sense described above, the present system including the inquest does not fall short it its requirements in any way. On the contrary, it complies with it."
Does this inquest engage the article 2 obligation of proactive investigation?
The Lord Chancellor's guidance
"Although the function of an inquest is inquisitorial, and in the overwhelming majority of cases the coroner can conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented, every rule has its exceptions and this in our judgment is an exceptional case."
The application of the guidance to this case
"Whether the family may be able to participate effectively in the inquest without funded representation. This generally depends on the nature of the issues raised and the particular circumstances of the family."
This subparagraph is rather odd in that it sets out the basic test for whether representation should be authorised; yet it is included as one of a list of factors to be taken into account. In any event, it puts beyond doubt the relevance of Ms Humberstone's intellectual abilities and the emotional perturbation she might be expected to suffer during the inquest. I mention in passing that, in Khan, the court particularly mentioned the difficulties which the family would experience in trying to participate. Mr Khan was an intelligent and educated man. He was suffering from depression as the result of the events surrounding his daughter's death. The issues raised would be complex and he would not be able to cope with them alone. Mr Stutt did not make any comparable examination of Ms Humberstone's difficulties.
Lord Justice Leveson
Lord Justice Maurice Kay