Monday, 23 February 2015

R (Letts) v Lord Chancellor - Legal Aid in Art.2 Inquests

By Richard Borrett

The High Court has considered a challenge to the criteria applied by the Legal Aid Agency (LAA) in deciding whether the grant legal aid for representation at inquests which might engage Article 2 (A2) ECHR. The Judgement is available on BAILII here.

In certain deaths, A2 is engaged, the state has a duty to investigate the death and the investigation must meet certain requirements. One of those requirements is the involvement of the next-of-kin in the process. That requirement means that in certain cases the state might be required to grant legal aid.

The Lord Chancellor's Exceptional Funding Guidance, promulgated under LASPO endeavours to identify the steps that a caseworker, facing an application for legal aid to cover representation at an inquest, must take. The Guidance identifies two steps or conditions which must be passed in order to warrant legal aid. The first is that the case must fall within Article 2; the second was not in issue.

The guidance seeks to define the ambit of an A2 case, stating that the procedural obligation "only arises in a narrow range of circumstances where the evidence suggests that it is arguable that the State has breached its substantive obligation to protect life" (see [53]).

The essential basis of the challenge was that this guidance is an error of law or that it is misleading. The Claimant submitted:

  • - (i) that there are categories of Article 2 case where for the investigative duty to arise there needs first to be an arguable breach by the state of the substantive obligations; but 
  • - (ii), that there is also a significant category of cases where if the basic facts of the case fit within a category of case to which Article 2 can in principle apply the investigative duty arises automatically and without there being a need to establish even a hint of culpability on the part of the state. 

The Decision
Mr Justice Green therefore considered in some detail ([71] onwards) when the procedural obligation is triggered, in the context of psychiatric involuntary patients.

At [73]-[74] the Judge considered R (Smith) v Oxfordshire Deputy Assistant Coroner [2010] UKSC 29 and said:
    ... five categories of death where the substantive rights contained within Article 2 have been held to be potentially engaged "…with the result that the procedural obligation has been held to exist". These categories were: killings by State agents; deaths in custody; conscripts; and, mental health detainees. The fifth category is "… other situations where the State has a positive substantive obligation to take steps to safeguard life". With regard to the category of mental health patients Lord Mance cited Savage of which he stated:
    "…although concerned not with any duty to investigate under Article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide – highlights the analogy between the State's duty towards persons in custody and persons in detention for mental health reasons as well as conscripts".
  1. In these cases the courts have held that the mere fact of death gives rise to a "possibility" of State complicity and that this suffices to trigger the investigative duty. It is quite clear that when referring to the "possibility" of a violation the Courts are by no means saying that there is (or needs to be) any evidence of a violation. The courts in these cases are not linking the duty to investigate (and provide the derivative right of representation) with the existence of arguable evidence of breach. On the contrary it is the mere fact of death in circumstances where there is a hint of state control which creates the hypothetical "possibility" of violation and it is this "possibility" triggered by the fact of death which then activates the investigative duty. In such cases (as the examination of objects and purposes in section F. above shows) there still can exist very good and powerful policy reasons for the inquiry to be held, including so that the finger of doubt can be dispelled and the State can emerge unblemished, which of course is the very opposite of a case where the purpose of the inquest is to find the state culpable.
The Judge then considered the psychiatry cases and concluded that the procedural duty might be so triggered "irrespective of whether the state, whether arguably or otherwise, is in breach of the substantive duties in Article 2 ECHR" ([92]), but that the limits of the principle are "hard to define".

Accordingly the court found that the guidance, insofar as it it failed to identify the category of cases at (ii) above, contained an error of law ([94]).

Having considered the guidance and whether or not the court should interfere with it, the court granted declaratory relief, having said ([118]):

  •               The test is hence: Would the Guidance if followed (i) lead to unlawful acts (ii) permit unlawful acts or (iii) encourage such unlawful acts? In my view for the reasons already given the Guidance would do all of these three things.

Further submissions are to be heard on the nature of the declaratory relief.

The effect of this judgement should not be overstated; though it is perhaps a useful analysis of some of the cases on the procedural duty:

  • It establishes only that there are 'cases' in which the procedural obligation may arise 'automatically'; no further conclusions are drawn about the scope of that principle;
  • The court was not required to consider whether the refusal to grant legal aid was in this case lawful; 
  • The case concerned a detained psychiatric patient: "The position in relation to different categories of case... is also fact sensitive and on the state of the present law complex.... Even in relation to mental health suicides the outer limits of the automatic duty are not crystal clear" ([99]).
Therefore the effect of this case is wholly in relation to the guidance and its failure to acknowledge that there are cases which 'automatically' trigger the investigative duty.

It remains to be seen what declaration will be given, but it seems that the guidance will have to be wider so as to incorporate the 'automatic' cases.

However, in due course some families may find it easier to obtain legal aid in cases where it is difficult to establish (evidentially) an arguable breach, in particular in deaths of detained psychiatric patients. Importantly the applicant will still need to show that representation is 'necessary'.

This case is an interesting development in the procedural obligation under A2 and is also a step toward increasing much-needed representation for families at inquests. A further post will analyse the effect of the declaration when the judgement is available.

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