06:04, December 29 197 0 theguardian.com

2019-12-29 06:04:05
Legal aid tussle over grieving families who crowdfund inquests

Internal Ministry of Justice documents revealing an official denying legal aid to any bereaved relatives who resort to crowdfunding for inquests have opened up a dispute over who pays for lawyers to expose the truth of what occurred.

Email trails obtained by the organisation Inquest, which supports families at coroners’ courts, highlight conflict over the department’s refusal to pay automatically for representation in cases where state agencies have been involved in a death.

The documents also show officials explaining the difficulties of making consistent decisions about paying for travel to court as well as a Legal Aid Agency (LAA) caseworker admitting rules impose a “burden” on some bereaved individuals. Elsewhere, officials were reminded they must take an official review “seriously”.

Although taxpayers’ money is available for lawyers representing police and prison officers during death in custody cases, for example, relatives are not always provided with legal help to guide them through complex processes at a time of grief.

The advent of online crowdfunding has complicated the already protracted procedure. A Ministry of Justice spokesperson told the Guardian: “There are cases where we have given legal aid where people have crowdfunded. It depends on how much they have raised.”

But the MoJ emails, released in response to freedom of information requests submitted by Inquest, show a different response. In one email, a senior official observed: “There is a trend of crowdfunding now for some high-profile inquests – so if that happens we don’t fund.”

That assertion appeared to be an outright rejection of any applications where families are reduced to seeking help online to pay for legal representation – so that they can find out what happened to loved ones – whether or not they raise any funds.

The documents, dating from late 2018, show civil servants gathering evidence to defend the LAA’s position. The review, published in February, came down against introducing “non-means-tested legal aid for inquests where the state has representation”. The cost of provision was estimated at between £30m and £70m a year; Inquest has argued it would cost closer to £5m.

That decision was reached despite a review of the Hillsborough inquest by the Right Rev James Jones, a former bishop of Liverpool, which backed awarding funding for the bereaved to have full legal representation at inquests in which public authorities were represented.

Both the previous chief coroner, Peter Thornton QC, and the current chief coroner, Mark Lucraft QC, have supported calls for legal aid to be provided to families at inquests in which the government pays for lawyers to represent police officers or other state employees. The Labour party has also pledged to grant automatic legal aid in such circumstances.

One email exchange between civil servants on 12 December last year noted that the minister, Lucy Frazer, “has asked for more substantial responses to the evidence below. Please can you provide some suggestions for further lines on this. It just needs to be baulked [presumably ‘bulked’] out so that it’s clear we’re taking it seriously…”



There has been criticism of alleged inconsistency in LAA decision-making. One official insisted cases were decided on each one’s “individual facts” but then went on: “There should not be cases where there is inconsistency but often two cases are not identical. We do, however, sometimes grant travel expenses to one family member if we consider it to be reasonable to do so in all the circumstances of the case – it is about allowing the family to participate in the process.”

A damaging admission was contained in answers to a survey filled out by an LAA caseworker in which he or she was asked to recommend improvements to the process. The response read: “The process of the means assessment [for legal aid entitlement] is generally for single-party action and does not encapsulate the fact that the majority of inquests are class actions as families are involved in the process by way of their parents, siblings and children. If one family member isn’t eligible it can fall on them to shoulder the burden of contributions or pay for the legal advice themselves…”

Inquest argues that the application forms for exceptional case funding certificates are unduly complex and intrusive. Applicants are required to disclose their ethnicity, marital status, property ownership, mortgages, value of their home, savings, income, partner’s income, childcare costs, tax liabilities, benefits and maintenance payments.

Wage slips, bank statements, pensions, rent books and student loans can all be inspected. The forms also require applicants to agree that any “contracted solicitor [has] a first charge on any money or property (or costs) which I recover … in relation to the matter for which I am being advised”. There are both means and merits tests.

Because the means-test thresholds for legal aid entitlement has not been raised for years, increasingly few applicants qualify. Often they are required to make contributory payments which are so high that they go without representation or opt to pay privately.

In one recent case the family of Charlie Nokes, who died in Peterborough prison in 2016, found the application process for exceptional case funding for legal aid so difficult that they resorted to crowdfunding to pay for a lawyer.

The MoJ said some payments were made on the merits alone of some cases. Asked about the specific comments in emails, an MoJ spokesperson added: “These comments have been taken out of context and misinterpreted.”

Deborah Coles, the director of Inquest, said: “These documents are illustrative of the Ministry of Justice’s cynicism and lack of respect to the testimony of bereaved families and those working with them. Those involved appear content with maintaining an unjust system, rather than properly considering the overwhelming evidence on the need for fundamental reform.

“Crowdfunding is a response to the desperate and uncertain position bereaved families are left in by the Legal Aid Agency and Ministry of Justice, not an alternative to a fair system. It is particularly shocking to see officials wishing to penalise families who have been able to fundraise.



“Non means tested public funding of inquests into state related deaths has the potential to make a real difference to the bereaved, the quality and preventative potential of inquests, and the administration of justice. The incoming government must act to end this injustice.”

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