In the Media

Coroners Bill: now the battle begins for legal aid and juries

PUBLISHED May 22, 2009

With Jack Straw?s dropping of plans this week for secret inquests, one of the big battles in the Coroners and Justice Bill has been fought and won. But the Justice Secretary?s move does not guarantee the Bill a trouble-free ride.

Apart from other controversial provisions ? the Sentencing Council being one ? there are other measures to arouse concerns of MPs, lawyers and civil libertarians while also missing the chance for needed reforms.

Chief of these is the denial of legal aid for bereaved families ? an omission that can leave such families without independent representation. Peter Lodder, QC, chairman of the Criminal Bar Association (CBA), said: ?It is the least society can offer them at a time when they are invariably experiencing the most severe distress.?

The Bar, too, backs the reform. The coroner cannot fulfil two roles, it says: ?That of investigating officer and that of representative to the families and other organisations.? John McQuater, president of the Association of Personal Injury Lawyers (Apil), has expressed ?extreme disappointment? that ministers so far are not backing extending legal aid. ?All too often people go to inquests, already distressed and completely unfamiliar with the system, only to find themselves outflanked and overwhelmed by the lawyers of those who may be responsible for the death of their loved ones.?

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In a case brought by the family of Private Jason Smith, who died of heatstroke while serving with the Territorial Army in Iraq in 2003, the judges ruled that the MoD had an obligation to avoid or minimise risks to the lives of troops, wherever they were serving, even on patrol or in battle. Otherwise it risked breaching the right to life enshrined in the Act.

The case began with judicial review proceedings brought by Private Smith?s family after the inquest into his death; now there will be a fresh inquest. This, the judges ruled, is also covered by the right to life provisions: ?The precise limits of the inquest will, of course, be a matter for the coroner but we would expect the coroner to consider the questions whether there were any systemic failures in the Army which led to Private Smith?s death and, indeed, whether there was a real and immediate risk of his dying from heatstroke, and if so, whether all reasonable steps were taken to prevent it.?

They went farther, noting that with deaths that involve the State (such as in the Army, or in police or prison custody), the inquest is of a different kind. These Article 2 inquests, as the judges called them, allow for a wider (narrative) verdict and wider scope of investigation. Yet the present Coroners Bill ?retains the distinction without defining the difference?.

That, the judges said, was a ?great pity?. They added: ?It would be desirable for the new statute to set out clearly the differences between an Article 2 inquest and any other type of inquest.?

A statutory definition would be one step forward. Liberty, Inquest and Justice, three leading campaign groups, would like more, with juries held in all Article 2 inquests. Isabella Sankey, policy director at Liberty, welcomed the judges? ?recognition that when brave men and women put themselves in the firing line they will be shielded by the Human Rights Act?. The court had also rightly recognised that the Government should have used the Coroners and Justice Bill to strengthen the jurisdiction of inquests in cases of utmost public importance, she said.

Inquests where the State was a party, above any other, demanded full public scrutiny. ?Failure to involve a jury . . . itself may breach Article 2.?

Jack Straw has indicated there is no more money to extend legal aid, arguing that an inquest is an inquisitorial inquiry ?not judicial proceedings?. That is why, he argues, successive governments have resisted legal aid in all but exceptional cases. But Apil notes that in 2007-08 only 12 of 69 applications for extraordinary funding were granted; and the year before, 16 of 104. Not only are families left unrepresented and ?disenfranchised?, they also sometimes feel on trial themselves.

Finally, there is the jury. It has been little publicised, but the Bill reduces the possible size of any inquest jury from 7 to 11 to 6 to 9. That, say the Bar and CBA, would ?have an inevitable impact on public confidence in the integrity and impartiality of the process?. Rather, public confidence in the inquest system needs enhancing.

In coming weeks, peers may seize their chance to strengthen, rather than weaken what critics see as a still-unreformed part of the justice system.