QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
MR JUSTICE SILBER
| THE QUEEN (On the application of SUMAIYA PATEL)
|- and -
|ASSISTANT DEPUTY CORONER FOR INNER WEST LONDON
|| Interested Party
The interested party was neither represented nor present
Hearing date: 25 August 2010
Crown Copyright ©
LORD JUSTICE THOMAS:
II The Statutory 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 that 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."
"8. Before approving an application I would expect the Commission to be satisfied that either:There is a significant wider public interest as defined by the funding code guidance … in the applicant being legally represented at the inquest orFunded 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."
"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."
III The Chronology
(a) The adjournment and resumption of the inquest
(b) Hearing on 25 February 2010
"I have no application to be made for funding and in terms of directions we are content to proceed and do as much as we can to assist the inquest".
(i) By any person who wished to be designated as an Interested Person under rule 20(a)-(g) of the Coroner Rules 1984, setting out the grounds upon which they consider that they should be so designated; and
(ii) Addressing the resumption of and/or joinder of the inquests (i.e. whether the inquests of the victims or the four putative bombers should be resumed and, if so, whether the inquests into all 56 deaths should be heard together).
(c) The claimant’s application for funding
(i) Although she has never been charged with an offence (having been arrested and interviewed by the police), it was “possible that similar assertions” to those which had been made during the earlier criminal proceedings referred to above (to the effect that she had acted as a conduit for passing information between the UK and Pakistan) might be repeated during the inquests;
(ii) There was a significant wider public interest in her being represented since this might potentially assist (a) “in understanding the events of 7 July 2005”, and (b) the Coroner in securing the rights and information sought by other interested parties; and that
(iii) Given the volume of material and likely complexity of legal issues, she would be unable to participate effectively in the inquests without legal representation.
(i) He was not satisfied that it had been established that there was a wider public interest in the claimant being represented. In particular, he noted that, whilst the claimant might wish to protect her own reputation, such a consideration did not of itself constitute a “wider public interest” within the meaning of the Civil Legal Aid Funding Code (i.e. that representation was necessary for inquests to produce real benefits for individuals other than the claimant);
(ii) Whilst the claimant had not sought to rely on Article 2, the Lord Chancellor considered that, since there was no arguable breach of the State’s substantive duty under Article 2, no enhanced investigative obligation arose under Article 2 and hence no need for funding; and that
(iii) “there were no other reasons for considering that there should be funded representation in this case”.
In addition, the claimant was informed, in the letter, that she was entitled to Legal Help, which she could use to assist her in preparing written questions or raising matters which she wished the Coroner to consider; this was a reference to the provision we have set out at paragraph 12 above.
(d) The hearing on 26-30 April 2010
(1) the Inquests should be resumed;
(2) the Inquests should be joined; and
(3) his clients should be made Interested Persons in the Inquests of some of the deceased.
(i) of those who wished to be designated as Interested Parties;
(ii) relating to whether:(a) the inquests should be resumed; and
(b) if so, whether the inquests into the Victims’ inquests should be heard with the putative bombers’ inquests.
(e) The further application for funding
"i) Effective participation would enable them to discharge their right to put questions and explore issues as an interested party. Additionally their participation may help other parties to explore issues thereby having the potential to produce real benefits for the other Interested Parties;It was made clear that if funding was refused, an application would be made for judicial review of that decision.
ii) The proceedings are on any view ‘significant’;
iii) Well-documented campaign to establish the full extent of the knowledge of the security services;
iv) [The claimant] is in a ‘unique position’ as the wife of the alleged ring-leader and her association with the other perpetrators and others. It is difficult to envisage other individuals who could assist the inquest to the same extent;
v) [The claimant] equally anxious to explore the true extent of the knowledge of the Security Services;
vi) Analysis of the intelligence failings may reveal that the atrocity was entirely preventable and the lives of the victims and perpetrators may have been saved;
vii) Volume of material. Extraordinary and unreasonable to expect [the claimant] to deal with by way of legal help; and
viii) No legitimate distinction between those granted funding and [the claimant]"
i) The decisions to provide funding for the families of the Victims were taken on the basis that the significant wider public interest criterion was met;
ii) The significant wider public interest in relation to the Victims’ families was primarily the enhanced safety and confidence which the public would derive from the full scrutiny and examination of the evidence which would flow from the Victims’ families being represented and pressing for the fullest possible exposure of the facts;
iii) The distinction between the position of the families of the Victims and the claimant arose because of different motivation underlying the applications for funding – in particular, in contrast to the families of the Victims, the claimant’s application was in significant part motivated by a desire to be protected against possible allegations that she was complicit in the actions of the bombers;
iv) It was open to the claimant to assist the inquests as a witness; it was unclear how legal representation for the claimant would add to the inquest, or why the claimant would only be able to assist the Coroner with the help of funded representation; and that
v) It was not accepted that the claimant being represented would lead to any additional benefits flowing to the public, or that funded representation was required for any additional benefits to be obtained.
(f) The decision of the Coroner on 21 May 2010
i) The Victims’ inquests should be resumed (paragraphs 23-30);
ii) In the absence of proper submissions, all questions relating to the bombers’ inquests (including whether they should be resumed) should be adjourned (see paragraphs 15 to 22 of her decision);
iii) In relation to the claimant, the Coroner, having noted that the claimant (a) had been denied funding, (b) wished for the inquests to be joined; and (c) wished to be “interested persons in the inquests of some of the deceased” (paragraph 15), stated (with emphasis added) that:"…I make it plain, however, that if any submissions are to be made as to the resumption of the [bombers’] inquests... , I will require proper and fully reasoned submissions on the issues it is said should be explored. If interested person status is sought, I wish to know the questions the person concerned would wish to ask and in which inquests. Any further delay in filing those submissions will only make it harder to persuade me that, having embarked upon the inquest process as far as the [Victims]... are concerned, it would be practical or appropriate to hear all 56 inquests together" [paragraph 18].
(g) The application to the LSC for funding of the present proceedings
(h) The commencement of the present proceedings
i) to challenge the refusal of her application for exceptional funding in order to be represented at MSK’s Inquest (see paragraph 1 and 11 of the grounds); and
ii) expedition on the basis that the funding is required in order to be represented at and comply with the directions made in the Victims’ inquests (see the box marked reasons for urgency).
IV The Issues
i) Was the decision made by the Lord Chancellor irrational or unreasonable?
ii) Should the time limit for the bringing of this application be extended?
iii) How should the court exercise its discretion?
V Was the Lord Chancellor’s decision to refuse funding to the claimant irrational or unreasonable?
"‘Wider Public Interest’ means the potential of the proceedings to produce real benefits for individuals other than the client (other than the benefit to the public at large which normally flows from proceedings of the type in question)".
i) The threshold is high because of the need for there to be not merely a potential of the proceedings to produce real benefits for individuals other than the client (other than the benefit to the public at large which normally flows from proceedings of the type in question) but that the benefits must be substantial;
ii) The benefits must be seen against what would happen if the application was refused;
iii) Those benefits have to be considered in the light of that facts that (i) the inquest is inquisitorial in nature; and (ii) any existing legal representation. In this case the Coroner is assisted by a team of counsel led by Mr Hugo Keith QC; and the Victims’ families are legally represented and would be able to challenge the evidence given;
iv) The onus of proving the Significant Wider Public Interest would be on the claimant;
v) Legal Help is available; we are told that this was a sum of £295; this does not appear to have been used in the present case to make representations to the Coroner, but rather to apply for funding.
VI Should the time limit be extended?
"Where the High Court considers that there has been undue delay in making an application for judicial review, the court may refuse to grant (a) leave for making the application or (b) any relief sought on the application... if it considers that the granting of the relief... would be detrimental to good administration."
"The backgrounds of MSK, Panweer, Hussain and Lindsey: The lives of the four men prior to 7 July 2005 – upbringing, education, radicalisation, association, overseas travel, expression of extremist beliefs etc."
"Ms Patel is in a unique position, given that she was both married to the individual who has been characterised as being the ‘ringleader’ of the attacks on 7 July 2005 and her association with the other perpetrators of the attacks and others who were charged as being allegedly involved... it is difficult to envisage other individuals who could potentially assist the inquest and thereby the families of the victims in seeking to address the wide-ranging questions to which they want answers, to the same extent as they may. Therefore, it is demonstrably the case that my clients may assist in a tangible way the potential of the proceedings to produce real benefits for individuals/members of the public other than themselves and other interested parties including state agencies. "In none of these letters did the claimant or her solicitor condescend to give any details as to what the claimant might be able to say which would show that she could contribute to the Significant Wider Public Interest identified by her solicitor and the issue in paragraph 12 of the Inquest’s provisional index of issues, obvious though it was that such detail was essential.