QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF
|- and -
LEGAL SERVICES COMMISSION
HM CORONER FOR SOUTH YORKSHIRE (WEST)
Barbara Hewson (instructed by Legal Services Commission) for the Defendant
The Interested Party did not appear.
Hearing dates: 30 March 2010
Crown Copyright ©
MR JUSTICE HICKINBOTTOM :
"The Coroner says that he finds the letter from the Legal Services Commission startling and that underestimates his view by about 100%."
The Coroner also expressed concern that other participants at the inquest would be represented - some, if not all, at public expense - but not Miss Humberstone. He said he would write further to the Commission.
"Your letter of the 20th February 2009 concerning the above was shown to me at a recent pre-inquest review of this case.
Whilst I do not pretend to have a grasp of the legal technicalities on exceptional funding, I hope you will forgive me writing to you to express some disquiet about the decision apparently made in this case. I understand that the refusal of exceptional funding may be subject to appeal [in fact, an internal reconsideration by the Commission] by Messrs Howell & Co. I do not know whether this letter might be taken into account in that appeal.
Firstly, may I correct a significant mis-statement in the letter of refusal. In reason number 6 on page 2, it is said that "the coroner is professionally qualified both legally and medically and will assist the client throughout the inquiry process". I suspect that this is an established form of words that may be used in many refusal letters? Unfortunately it is totally incorrect; the vast majority of coroners are legally qualified, a few are medically qualified but there are almost none who are dual qualified. It is unfortunate that the Legal Services Commission should be labouring under such a fundamental misapprehension."
I pause there to say that Mr Dorries is in fact legally, and not medically, qualified. The letter continues:
"May I also respectfully underline that whilst I will certainly assist someone in Ms Humberstone's position throughout the enquiry process, whether represented or not, I am not there to represent her interests and I will need to be particularly careful of any appearance of special treatment. As I set out below, there are several other interested parties in this case but two in particular, a nurse and a paramedic (both of whom are represented) will also face questions bearing upon whether or not their actions led to the death.
Following the pre-inquest review, it is now clear that the South Yorkshire Ambulance Service will be represented, as will the Sheffield Children's Hospital, the GP's surgery and (separately) a District Nurse. At least two parties (the Hospital and the Ambulance Service) will therefore be using public funds in their representation.
When I wrote to Mr Mahy of Howells on the 9th January, in answer to his request for views on funding, I made it as plain as I could that Ms Humberstone is effectively facing an enquiry at the inquest into whether or not her actions or failures led to the death of her child. You will remember that she was arrested and interviewed for gross negligence manslaughter and the inquest will certainly be considering whether or not the circumstances of the death amount to unlawful killing which, apart from such a verdict, would also lead to the case being sent back to CPS.
It also seems inevitable that the other agencies or individuals involved (or represented) will seek to deflect any criticism of their failures (and there are very specific issues which need to be canvassed) by underlining the mother's failures. Maintaining a fair balance in all of this if Ms Humberstone is unrepresented will be challenging to say the least. To give one example, when Ms Humberstone gives evidence (as she will be required to do by me) how will she determine whether or not she should seek the protection of Rule 22 (against self-incrimination) in respect of questions asked? However fair that I intend to be, I simply cannot discuss her potential answers with her and then advise on what should be said.
I should also like to make the point that causation will be a major issue in this case. It is on the basis, as I understand it, that the Crown Prosecution Service did not proceed against Ms Humberstone. This will involve nuances of technical medical information which an unrepresented mother is likely to have little grasp of.
I do appreciate the pressures upon the legal aid fund and that inquest cases must properly be "exceptional" to merit consideration. But I do wonder if we should consider it exceptional that a mother is being asked to face a detailed enquiry into her child's death (the case is listed for five days), amidst allegations of her gross negligence when all the other agencies and individuals effectively ranged against her are legally represented, some at State expense.
I hope these points may be of some assistance to you. I am copying my letter to the Minister as I believe he may see the justification for taking a personal interest in this case."
"Any person whose conduct is likely in the opinion of the coroner to be called into question at an inquest shall, if not duly summoned to give evidence at the inquest, be given reasonable notice of the date, hour and place at which the inquest will be held."
Again, it is noteworthy that it is a person whose conduct is likely in the opinion of the coroner" who falls within the provision. In this case, the ambulance and hospital authorities appear to fall within this provision, as well as the relevant doctors and nurses (and Miss Humberstone herself) who will presumably be summoned to give evidence .
"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."
There being no relevant direction under section 6(8)(a) or authorisation under section 6(8)(b), the only route available for Miss Humberstone to obtain funding is under the "exceptional funding" provision within section 6(8)(b), i.e. to seek a decision from the Lord Chancellor himself to fund an advocate to represent her at the inquest, as an individual, otherwise excluded or "out-of-scope" case.
"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.
The Issues arising from the Grounds of Challenge
(i) She submitted that, in the circumstances of this case, Article 2 was not engaged, so that no obligation fell on the state to investigate Dante's death arose at all ("the engagement issue").
(ii) If that obligation did arise, then she submitted that it was satisfied in this case without Miss Humberstone being granted state funding for representation at the inquest. There was no issue between the parties that Miss Humberstone could not afford representation and therefore, without a grant, she would be unrepresented. However, Ms Hewson submitted that, even without such representation, the Coroner could carry out an "effective investigation" into the death: and, therefore, by refused funding, there was no breach of the Article 2 or the Funding Code ("the breach issue").
Article 2 of the European Convention
"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 duty to investigate is partly owed to the next of kin of the deceased as representing the deceased…"
Certainly the cases make clear that, for an investigation to be "effective" it must effectively involve the family and next-of-kin of the deceased to an appropriate extent to safeguard their legitimate interests (see, e.g., Amin at  per Lord Slynn; Khan at  per Brooke LJ; and Jordan v United Kingdom (2001) 11 BHRC 1 at ): and, as Khan shows, the circumstances of individual family members (including the effect of the death upon them) may be a relevant consideration as to what steps are required to ensure their participation in any investigation is "effective". That is also directly reflected in the Funding Code (in, e.g., paragraph 27.4.8(c), quoted at paragraph 37 above).
"If, as in our opinion is the case, the system must be practical and effective, we are not persuaded that the mere fact that the state has made it possible in law for the family to begin a civil action against those said to be responsible is by itself a sufficient discharge of the state's obligation in every case. For example, it may not be practicable for the family to procure an effective investigation of the facts by the simple expedient of civil proceedings. Their claim may be for a comparatively small sum, as for example where the only claim is that if the estate of the deceased, such that it would not make practical or economic sense for civil proceedings to be begun, especially for a family who is not able to obtain legal aid.
Another possibility is that the facts may be such that liability has been admitted, with the result that, at any rate under the adversarial system in operation in England, there can be no trial and thus no independent investigation of the facts as part of the civil process." (Takoushis at - per Sir Anthony Clarke MR).
"What is required by way of an investigation [under Article 2] cannot be reduced to a catechism of rules; a flexible approach is needed, responsive to the dictates of the facts, case by case."
That, in substance, has been endorsed or approved in most of the cases on the secondary duty under Article 2 to which I have referred (see, by way of example, Challender  per Richards J, L at  per Lord Phillips, and Amin at  per Lord Hope of Craighead). In respect of what will constitute an "effective investigation" for the purposes of Article 2 (including whether, for an inquest to be such an investigation, a particular participant will need legal representation), there can be no formulaic approach. Applications cannot be decided on a tick box or grid basis. In order to decide whether funding representation of the family of the deceased is "likely to be necessary for the effective investigation into the death", although the Funding Code (in paragraph 27.2.9) helpfully identifies some matters that have to be taken into account, each case requires the exercise of judgment on its own particular facts and in the light of all of its own circumstances. That is, no doubt, why paragraph 27.4.1 of the Funding Code requires all applications for inquest funding to be made to, and considered by, the Commission's Special Cases Unit.
The Decision Letter of 5 June 2009
"The case that provides the clearest guidance of whether funded representation should be necessary for an effective investigation is [Khan], where the Court said that, although the function of an inquest in inquisitorial, and in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without the family of the deceased being represented, representation in an 'exceptional case' should be funded. Khan involved the death directly caused by grossly negligent clinical intervention, with an alleged cover up by the authorities.
Even if your client's allegations are made out, I am not satisfied that any material investigative obligation arises under Article 2. This is because it is my view that there was no actual or possible breach of the state's obligations under Article 2. There was, at most a possibility of simple negligence (as described in Goodson below) on behalf of the Bell House Road surgery staff and paramedics, which even if established would not amount to a breach of Article 2 (see [Goodson] and [Takoushis])."
"Even if my view on the engagement of Article 2 is wrong, the present case does not fall into the category of an 'exceptional case' in which representation should be funded. The investigative obligation that arises under Article 2 is satisfied through the Coroner carrying out a proper investigation into the death. The question is whether the Coroner could reasonably be expected to carry our a proper investigation into the death, including the wider aspects of whether your client was implicated and whether there was negligence by the paramedics and the Bell House Road surgery staff, without full legal representation of the family. An Article 2 compliant investigation must, to be effective, permit the family to take an effective part in the inquest, but it does not follow that to satisfy that requirement publicly funded representation is required.
In my opinion, the present case does not fall into the category of an 'exceptional case' in which representation should be funded.
I have considered the views of the Coroner, which are material to the issue in question but, in this instance, they are not determinative to my decision. The fact that the medical professionals may be represented at the inquest is not directly relevant to my decision of whether or not to recommend that representation in this case be funded.
In my opinion your client is able to participate effectively in the inquest as both witness and the mother of the deceased. In this context participation does not imply active legal participation in the sense of cross-examination of witnesses. That will rarely be realistic for family members (see D v Home Office  EWCA Civ 143) and is the responsibility of the Coroner. Your client has the option of choosing whether or not to answer any questions put to her at the inquest if she so wishes, and I do not accept that legal representation is necessary for this. In relation your client's role as the mother of the deceased, it would be open to your client, through the Legal Help scheme, to make submissions and identify particular matters that they wanted the coroner to explore.
I note that your client was arrested on suspicion of gross negligence manslaughter but has since been released from bail and no charges were brought. Should your client be charged with an offence at the conclusion of the inquest, she is entitled to apply for legal assistance funded by the Criminal Defence Service. The availability of Criminal Defence Service funding satisfies the Article 6 criteria for individuals charged with a criminal offence. An inquest is not a forum in which Article 6 rights are determined ([Challender]).
Engagement of Article 2: "The Engagement Issue"
Breach of Article 2: "The Breach Issue"
"The investigative obligation that arises under Article 2 is satisfied through the Coroner carrying out a proper investigation into the death."
There is no suggestion that any other part of "the system" overseen by the state is relevant or relied upon. In the context of this case, that concession appears to me to be entirely proper - and in line with the Funding Code (e.g., paragraph 27.4.7, quoted in paragraph 37 above), for the reasons I have already given. The question for me to consider is therefore whether the Commission lawfully concluded that, in all the circumstances of this case, funded representation for Miss Humberstone was not necessary to enable the Coroner to carry out an effective investigation into Dante's death.