I have rarely been at an Inquest that was not adversarial.
In all of my years of practice, a constant theme has been
the injustice faced by family members at Coroners’ Inquests. I have attended many
such inquests, normally in the context of Clinical Negligence cases. The health
professionals would always be represented by experienced lawyers. Those of us
who represented families would normally do so on a pro bono basis. They can be
complex, technically difficult and come at a difficult time.
I have rarely been at an Inquest that was not adversarial.
This is entirely understandable. Those representing professional people owe a
duty to them to ensure that no stone is left unturned when their reputation or
even career might be at stake. It is
inevitable that such hearings will be adversarial. But there is an inevitable imbalance.
The NHS has considerable resources to fund legal representation. The families
have little or none.
Which brings us to the current debate about extending the
scope of legal aid to cover a right of representation for families, particularly
in cases involving the state. On 24th February 2022 the Judicial
Review and Courts Bill Committee in the House of Lords discussed this very
topic. They were considering an amendment to the Bill that would make legal
aid available in these cases.
Speaking for the Government was Lord Wolfson of Tredegar. His Lordship acknowledged that the families should
be at the heart of an inquest. He then went on to argue that it would be
counter productive to allow legal aid for families –
“There is
a risk that having additional lawyers at an inquest will not provide an overall
improvement for the bereaved and could have the unintended consequence of
turning an inquisitorial event into a significantly more complex defensive
case, which could, in the majority of cases, prolong the distress of a bereaved
family”
The sad fact is that most inquests are defensive.
The sad fact is that most inquests are
defensive. They do not become less adversarial just because one party is represented,
and the other is not. It certainly narrows the opportunity for scrutiny of
evidence, but that rather defeats the point of what is meant to be an
inquisitorial process.
So the plan is to have fewer lawyers lined up against the unrepresented families.
Lord Wolfson’s suggestions for addressing
any imbalance are discouraging. He referred to a protocol that – “ensures that
where the state is represented, it will consider the number of lawyers
instructed so as to support an inquisitorial approach” So the plan is to
have fewer lawyers lined up against the unrepresented families. He then
referred to Exceptional Case Public Funding which is far from straightforward!
https://www.theyworkforyou.com/lords/?id=2022-02-24b.430.1
In fact, it looks like the government is
doing all it can to ensure powerful representation for … the government, whilst
presenting every argument available to ensure that families do not have the
same. If the process is not adversarial or defensive why is public money spent
on lawyers for one and not the other. We don’t call them ‘parties’ but we all
know that this is what they are.
