Oral evidence: Human Rights: attitudes to enforcement, HC 669Wednesday 7 March 2018.

Oral evidence, 7 March 2018.

Chair

Thank you very much for joining us. We very much appreciate your preparedness to come here today and give evidence to us. We are the Joint Committee on Human Rights. Half of its members are from the House of Commons and half are from the House of Lord, and our concern is human rights. Article 2 of the European Convention of Human Rights, to which the UK is committed, is on the right to life, which is the most basic right of all. People in the care of the state deserve to be adequately protected and cared for. In the cases of Connor and of Joseph, this clearly did not happen, and you have our absolutely heartfelt sympathy for that dreadful fact. The focus of this session is on the inquest process that followed their deaths, but before we turn to that could you reflect on the most basic question: what could have been done to uphold and enforce Connor’s and Joseph’s right to life? That is the fundamental point. If you would like to talk about the inquest and what it did or did not show, we can move on to that.

Richard Huggins

What would have protected his life?

Chair

Yes.

Richard Huggins

Simply people doing the job that they are paid to do. The inquest demonstrated that. The recent GMC hearing demonstrated that. If people had simply done the job that they are paid to do, and had taken responsibility for their job, Connor would still be alive. In our case, it was simply people not doing their jobs properly.

Simon Rowland

In Joseph’s case, many agencies were involved during the two days of Joseph’s initial detention to his death. Further back, even more agencies were involved. One thing that could have prevented his death or given him a better chance would be if a single agency had taken control of the matter. They all passed the buck: “It’s not our job. That bit’s not our job. We’ll leave it to the next agency”. That agency passed the buck again until it ended in his tragic death.

Ms Karen Buck

Was there anything in particular about the inquest process in both cases that helped or that caused particular issues for you, as opposed, perhaps, to some other inquiries that might have been going on? Mr Huggins, you referred to the GMC, for example. I am sure that in both cases there was more than one inquiry. I am interested in knowing your experience of the inquest process and how that might have been different.

Richard Huggins

You have to take a step back from the actual inquest process and recognise that most people put in the position that we were put in, and I suspect many other people we have met, know nothing about inquests, coroners or anyone at all. You are given a leaflet in the family room on the morning your child dies that presents the process as a benign, helpful, supportive process that defends your rights. If we had not had contact with people like INQUEST and others who had been following Sara’s blog about Connor and who rang and told us on the morning of his death that we needed to do the following 15 things and do them that day otherwise we would be screwed—excuse my language—we would have gone into this process thinking that it would be open, just, fair. None of that is true. The coroner himself was very good, but we had to ask if they had done the pathology correctly, and they had not; the post-mortem had not been carried out in accordance with pathology guidelines, so we had to get Connor taken out of the funeral home and have it done again. Without that evidence and without the equipment that we were given pro bono by very senior legal and advisory groups, the coroners’ court could not have reached the decision that it did. You should not have to do that, and we only knew to do that because somebody told us to do it. So it starts before the process itself. It was two weeks of absolute hell. Some bits were good, such as getting to the bottom of it, and the overall outcome was good, but the way Sara in particular was brutalised by a number of the seven barristers employed by the NHS to defend itself was outrageous.

Ms Karen Buck

We might pursue that a little further on. In terms of knowing about the process, in your case it was because INQUEST was proactive.

Richard Huggins

INQUEST, and two legal people who had been following Sara’s blog, who also got in contact to say, “This is what you need to do”; one of those things was to contact INQUEST. Without that, we would have been totally ill equipped and unprepared. We would have taken at face value the statement that we did not need legal representation. They had seven barristers in the court for two weeks. The coroners’ clerk told us that they had never had so many legal people in that court in their history.

Ms Karen Buck

Thank you very much for that.

Louise Rowland

We were given no information about where to go. Our family liaison officers—members of the police who met us initially when Joseph passed away—said that because he was in state custody there would be an inquest process, as they were not sure how he died. I asked whether we would need legal representation. They said, “It’s up to you. Most families don’t”. It was only after doing some research that I came across the charity INQUEST, read some of its case studies, saw how similar they were to Joseph’s case and realised that we would need help.

Ms Karen Buck

You did not have anyone contacting you?

Louise Rowland

We were to start in a few days and we did not have legal representation. We did not have anyone during the post-mortem stage. All the other interested parties had meetings that we were not aware of but that everyone else was involved in. When my mother had to give her witness statement, we did not have anyone in place either.

Ms Karen Buck

Were you given any advice? Mr Huggins talked about just being given a leaflet.

Louise Rowland

No, we did not even get a leaflet. It was just through the research that I did that we got in touch with INQUEST, which helpfully got in touch with a legal firm to help us.

Ms Karen Buck

Again, for both families, we are particularly interested in the inquest side, but did anybody talk you through the relationship between the inquest and the other inquiries or complaints procedures that may have gone on? For example, you had to go to the GMC, but there might have been others.

Louise Rowland

We had the IPCC.

Baroness O'Cathain

What is that?

Louise Rowland

The Independent Police Complaints Commission.

Simon Rowland

CID was doing a criminal investigation.

Louise Rowland

The mental health trust, St George’s, was doing its own internal investigation. There was the adult safeguarding review by the London Borough of Richmond.

Ms Karen Buck

That is four—plus the inquest, in your case.

Louise Rowland

There may have been more.

Ms Karen Buck

Presumably you had a similar experience, Sara.

Sara Ryan

Because we spoke to INQUEST so early on, it talked us through incredibly carefully what the process would be and how the different parts would all fit. We were lucky that INQUEST got in touch with us, but even having that conversation a day or so after your child has died, when you have a house full of people and you are in a state of absolute barbaric shock, is appalling. So while we were lucky, it was still an abysmal experience.

Richard Huggins

We had a two-and-a-half-year police investigation into Connor’s death. The police were very good at explaining the relationship between their work, the Health and Safety Executive and the coroners’ court. But four other investigations were going on and were not aligned. We discussed with the GMC’s legal team why we had to go through presenting the same evidence—Sara was cross-examined by the same firm that cross-examined her at the coroners’ court and was made ill by that—when that evidence was already on the record of a Crown jurisdiction. We should also point out that our local authority, which was implicated in this because it was in some respects responsible for supporting Connor, carried out a secret report on Sara and us. It was full of errors and inconsistencies but was also quite damning. We only found out about it by accident. We only know about the investigations that were commissioned because of the police, our pressure and the support of other people. We do not know what other things have been written about us anywhere. I know that it is beyond your remit, but this is why legal representation is so critical for families. You do not know, as a family, what these authorities are doing. To believe that they are not doing stuff to deliberately cover up and to stitch families up is erroneous.

Ms Karen Buck

Briefly, to refer back to your opening comments, the first 24 or 48 hours in this are critical.

Simon Rowland

Yes.

Ms Karen Buck

If you do not get the right advice about what, if anything, you should say and how you should ensure that you are properly represented, that moment can pass.

Richard Huggins

Yes. You do not realise until you get the medical records what stuff has been written that should not have been written, because it is inaccurate, or what stuff has not gone on that was supposed to be going on, because it is inaccurate. If you do not get those in time, you will not get them. I should just mention the process. It took us two and a half years to get from Connor’s death to the inquest. We had four pre-inquest hearings. At each one, the legal team representing Southern Health Foundation Trust tried desperately hard to argue that Connor’s death was due to natural causes, which is how it was recorded. The coroners’ court told them that no drowning is a death by natural causes, but they persisted in making that argument at the following hearing. Each one of the hearings was deeply traumatic. We were unaware that we would have to go through four pre-inquest hearings before we even got to the inquest. There is a lot of concern about this process among families and others, but I should stress that the coroner and the coroners’ court were very fair—we felt a great deal of confidence in that particular coroner and his clerk. Obviously, that is not always the case.

Louise Rowland

I have a different view. We had a few problems with the original coroner who was assigned to Joseph’s inquest. In fact, our legal team had to write a formal complaint to her. For us, it took two years to come from Joseph’s death to the inquest. Our coroner ended up changing—our coroner was Karon Monaghan QC. If we had not had that change of coroner, the outcome could have been very different.

Ms Karen Buck

Could you outline the problems with the first coroner?

Simon Rowland

She was quite obstructive.

Chair

Who was the coroner?

Simon Rowland

Dr Fiona Wilcox. She was then moved to the Grenfell cases, which was why the coroner changed. She did not invite us to meetings that she had with the other interested parties, so we were unaware of them. We had no information about Joseph’s autopsy and release. Joseph died at the beginning of June, but we did not have the funeral until mid-August. We were kept in the dark about why there was such a delay. A second post-mortem was done without our knowledge. We later found out that that is quite common, but the family should be told and we were not. She refused to give us the results of the second post-mortem; it took the threat of judicial review before she released them to us. There were many things. Her general attitude in the pre-inquest reviews was very difficult to take as a family when you are grieving.

Baroness O'Cathain

Did you have any legal representation before and at the inquest? If so, was it publicly funded? Was there a booklet, or something like that? While both families were talking, I was thinking about when my husband died. When I went to see the funeral directors, I was given a book containing the questions to which people usually wanted answers. They said, “Take this away. It will help you to know what next steps you want to take and whether you want a cremation or whatever”. I found that exceedingly helpful. The idea that you got no information I find quite ghastly.

Sara Ryan

There are two separate things. We went to a funeral home and chose a coffin and thought about cremation or burial and all those questions that you are dealing with, but the funeral parlours are not going to say to bereaved families, “You might want to get legal representation for the inquest”, because that is not their remit.

Baroness O'Cathain

Let me ask this question, because I am very naive about these things. When somebody dies, the situation is so serious, no matter how they die, that I would have thought it automatic that everyone would be given that.

Richard Huggins

It does not happen at all. The police were initially not prepared to get involved. It was only their visit to the unit, when they realised that there were discrepancies in the paperwork, which led to them to carry out their investigation, because they were concerned. All we got, as I say, was a brochure—produced, I assume, by the Ministry of Justice—in the family room of the John Radcliffe Hospital, which outlined in a very anodyne and childish way what happens next with inquests. It was the sort of thing that you might give to a primary school child if you were trying to give them a general overview of how coroners’ courts work. We knew there was an issue. We knew that Connor should not have died; he had no life-limiting conditions. It was only because we had this extra advice, which we then followed up on, that we were better equipped. I should point out, because this is relevant, that not only did we have four pre-inquest hearings, which were very adversarial, thank you to the trust, but at the last minute they tried to get the inquest moved to the High Court as a defence mechanism so that it would be delayed for a further two years or so. The senior coroner said, “That’s not happening”. But, again, without legal representation, we would not have got an Article 2 inquest, because the coroner had to have that explained to him. Even though, as I say, he was a reasonable man, he did not really understand why we should have an Article 2 inquest, and our legal team had to provide him with documentation to demonstrate why. Nor would we have had a jury, and we would have faced a very aggressive legal team, paid for by the state, while representing ourselves. The trust’s legal team tried to argue that I should not give evidence and that only Sara should give evidence, despite them calling 15 witnesses. They also briefed their witnesses so that every witness statement included a section entitled, in bold, “Relationship with mother”. Three of the staff recanted on the stand and said, “We shouldn’t have said that. None of that is true”. That is what you are dealing with. Nobody gives you a leaflet saying, “Oh, by the way, these NHS trusts”—or the police service, or the prison service; whatever service it is—“will do all this stuff”. Nobody says that to you, because why would they? Of course, because most of us are reasonably trusting and decent citizens who believe in the National Health Service, let alone anything else, you think people are going to say, “Gosh. Something’s gone wrong. Let’s try and sort it out”. That does not happen.

Baroness O'Cathain

And at such a ghastly time of your life.

Richard Huggins

And, of course, there was the effect on his siblings. They were completely written out of the picture. The way Sara was cross-examined in the coroners’ court, and subsequently at the GMC hearing, really damaged our youngest son. They were not mentioned. You are not prepared for any of this—in fact, quite the reverse; if anything, you are prepared for a completely different system, which is one where, if you take at face value the small amount of information that you get, somebody decent is going to sit down and ask the right sort of questions and possibly find out some stuff. Actually, you have to fight tooth and nail to get even basic acknowledgement. Importantly—it is all part of the picture—in the minutes of Southern Health Trust’s next board meeting, the cause of Connor’s death was recorded as “natural causes, all procedures followed”. If he had been on his own in that unit, as four of the other patients were, there would not even have been an inquest. Six years earlier in the same unit, another man drowned in the same bath that Connor drowned in, and there was no inquest because no one was there to ask that question. Nobody from Southern Health disclosed that information until the fourth day of the inquest, so they had not told the police in their two-year investigation, they had not told our legal team, they had not told us. They had not even shared it with their own legal team. It came out because one of the doctors who was on the stand used it as a bargaining chip for their own purposes. I am fairly confident about that, but that might be wrong. No one knew. They wrote to our legal four times and said in open court, “We have now disclosed all information”. Without legal representation, you are going it alone. We did not pay for it. It was all pro bono. We would not have been able to pay for it.

Lord Trimble

I have a question for Simon and Louise. Granted that you had a really unpleasant experience. What is your view of the verdict returned by the jury that the treatment that he received was chaotic, disorganised, and lacking urgency? Did you feel that that was a fair reflection on it, or would you have preferred something more robust?

Simon Rowland

No, we felt that the jury’s conclusion was very good. Another thing that came up in the inquest was that a lot of the other parties wanted the verdict to be given in short form, so more like a survey. Thankfully, the coroner agreed with our counsel that it should be in a narrative form, because if you have read it you will see that there is no way you could put across in short form what they concluded. It needed to be in a narrative form. We agreed with what they said, and we were very grateful to the jury for their words, too.

Louise Rowland

There are limitations to what they are legally allowed to say. They can comment only on the cause of death. The medical evidence was that the cause was unascertained. In our opinion, in the days leading up to Joseph’s death and the time he spent in police custody, the more agitated he became the more it would have contributed to his eventual death, but the jury was allowed to comment only on the last moments at St George’s Hospital when he was found not to be breathing, and what followed after. So while I agree with the jury’s findings, because that was all they could comment on, those things did not contribute to his death. If they had been able to comment on the days leading up to his death, I think everything would have contributed.

Sara Ryan

We have heard lots of other families’ stories, and there is a consistency; the aim of the trust, or whoever it is, is always to close down as much as possible to try to stop parents knowing any of this stuff. If parents start to get a bit more savvy about the inquest process, you can see the trust trying to narrow the focus of the inquest down to just that point, rather than bringing in the broader sweep. That, again, is where the legal representation comes in. They understand what we did not understand at the time but that we understand better now: the need to keep making these arguments from the moment you instruct them to the inquest itself. There are so many emails, meetings, submissions and legal documents that are sent backwards and forwards to the family and their legal team. Who would do that work if they did not had a legal team? We were not in a position to make arguments drawing on legal case law. Our barrister’s first submission included 19 different case studies as evidence to try to persuade the coroner that we should have an Article 2 inquest, when we should have an Article 2 inquest anyway. Everybody in this room would know that. That is another factor.

Lord Woolf

Having heard what you have said, you really found that you were not getting the amount of help that you needed right from the start. INQUEST helped to put you on the right line. If you had not had the assistance of INQUEST, you would have floundered. The picture that you are giving us is that you really need help if you are in the position that both families were in. Unfortunately, the law as it is now limits situations in which you can get legal aid for an inquest to “exceptional circumstances”. You did not know that there was any possibility of getting legal aid.

Sara Ryan

We were told that, but we were also told that the process would be laborious and really intrusive, digging around not only in my finances or Richard’s finances but with people more widely. It is a really difficult process to go through in addition to everything else, and the chances of success are really low.

Lord Woolf

Who told you that?

Sara Ryan

INQUEST.

Lord Woolf

If INQUEST had not told you that, you would not have known.

Sara Ryan

No, of course not.

Lord Woolf

Did you know?

Louise Rowland

No. At the beginning, you do not really think about the costs, because you just want help. They are in your mind, and you are nervous: “Should I email this lawyer, because they’ll bill me for it and all the costs will mount up”. But you have no choice, because if you have no legal help you are not on a fair playing field with the other state bodies, which will automatically have legal advice and have access to the lawyers they want.

Lord Woolf

And will also probably be familiar with the process, because they will have been involved in other inquests, but none of you had previous experience of inquests, so this was a really new situation that you were in. In my day, when I appeared at inquests as a young lawyer, coroners often had a police officer who was very good at seeing the bereaved and talking them through the process. Was there somebody equivalent at the coroners’ office once you were involved in the inquest?

Sara Ryan

We got in touch with the coroners’ office because of the trouble with the post-mortem, so we talked to a coroners’ officer, but, no, there was not.

Lord Woolf

So the initiative came from you.

Louise Rowland

No. The experience that we had with the coroners’ office was not very positive. They got my brother’s name wrong on the provisional death certificate. We were told that the body was ready to be released when we had been told by someone else that there was a second post-mortem due that day, so there had been some miscommunication within the team. Perhaps I may just refer to a letter. We did not get immediate disclosure of the post-mortem reports. I am not sure whether this is the coroners’ officer’s fault, but they took his brain for examination, there was a delay in it going to where it was supposed to go to and it was left lying on a shelf for weeks longer than it was supposed to. So it was not a great experience. They phoned to apologise about the wait, but the attitude that we got was, “Well, we’re just really busy, so things are going to slip up”.

Richard Huggins

We had to phone the pathologist to ask whether he had done the post-mortem correctly, not the coroners’ office. The coroners’ office said, “Here’s his number. You phone it”. So it was Sara who had to speak to the pathologist to ask, “Have you done the post-mortem correctly on my son”. He said, “I can’t remember”; this was three days after the event. He had not followed the guidelines on removing the brain in the case of an unexpected death of an epileptic person who had drowned, he had not done the minimum, so we had to go back to the coroner. I naively thought that the coroners’ office would phone him to say that he had to do it again. I did not really think that Sara would have to speak to him.

Lord Woolf

It is meant to be an inquisitorial process. That is one excuse for not having legal aid. That means that the tribunal itself, the coroner, does the investigation. Did you feel that the coroner could be relied on, with the resources that he had, to make sure that the proper investigations had taken place?

Sara Ryan

The coroner was absolutely brilliant, but he did not understand the nuances of Connor’s experience. Because Connor was in a hospital that did not have a locked door, the coroner kept thinking that if Connor had said, “I want to go”, they would have just opened the door. He did not understand or grasp Connor, and it took very careful legal arguments by Paul Bowen, our barrister, who had to walk the coroner through the whole idea that Connor was detained, even though they would have opened the door if he had asked them. The coroner just did not understand the idea that he would never have asked them to open the door, so we needed Paul there to fill in the gaps for the coroner, because we would have just been lying on the desk weeping by that point.

Lord Woolf

If you had not had the barrister there, you would not have coped as well as you did.

Sara Ryan

No. I know of another family where the father is an ex-policeman and decided to represent himself because he had been in these situations. When he got into court and was faced with the barristers from the trust, it was so distressing for him to have his son talked about that he ended up not being able to say what he wanted to say. While we are all reasonably good at chatting, in those circumstances it is impossible to make those arguments without the lawyer.

Lord Woolf

Would you agree with what has just been said by the other parents, Louise and Simon?

Louise Rowland

Absolutely.

Simon Rowland

You asked whether the coroner could do the inquisitorial side of the role. Our coroner was excellent at asking questions—very thorough—but there are always questions that do not get asked of the witness or that could be asked in a different way, whereas the trusts, police or other interested parties have barristers who are experts in coronial law who can ask them.

Lord Woolf

You felt that the proceedings were unbalanced.

Simon Rowland

If we did not have our own counsel who could ask the questions from our point of view, it would have been completely unbalanced.

Louise Rowland

Referring back to my previous point, we had a change in coroner, as I said. Karon Monaghan’s background is in human rights, but it very much varies depending on which coroner you get. You would not always get a coroner who had a background in human rights and would understand these things. Our jury was also proactive and asked a lot of questions, so that helped.

Lord Woolf

I think you wanted to say something.

Richard Huggins

Just a very small thing, because you mentioned the inquisitorial role of the coroner, and I do not wish this point to be lost. If the post-mortem had not been redone within seven days, the brain tissue would have deteriorated to such an extent that it would not be evidentially sound. The coroner would not have done any investigating until the start of the inquest, or close to it, so if we had not got that redone, the particular evidence of his death would never have been found.

Lord Woolf

In fairness to the coroner, it sounds to me at any rate that what had to be investigated was very complex in both your cases.

Richard Huggins

With all due respect, I do not think that that is true.

Lord Woolf

You think it was simple.

Richard Huggins

Yes. An 18 year-old boy dies in a bath in a hospital with 17 staff and five patients. What is the big complication?

Lord Woolf

You mentioned the position with regard to the brain, for example.

Richard Huggins

Yes, but there is a process that tells pathologists that if somebody dies unexpectedly and they have epilepsy, you must remove the brain. If for cultural, religious, political or other reasons you cannot remove the whole brain, you must take slices. If you cannot take slices for religious, cultural, political or other reasons, you must take plugs. He did not do any of those things. I do not think that is so complicated; that is a basic piece of pathology.

Chair

I am very struck by your point that the NHS employed seven barristers. I put this to you so that you can tell me whether this is how you feel about. It seems to me that you are describing a situation in which you have lost a loved one, and the state is implicated because the loved one was in the care of the state. Thereafter, the state weights the system against you, because those who are acting on behalf of the state have full-on legal representation from the word go in order to defend their position, and you have nothing unless you happen to find people who are prepared to do it for free. Therefore the state, if it transgresses, weights the system against those who would shed a light on it and expose what has gone wrong. Is that how you experience it?

Sara Ryan

That is it in a nutshell. In fact, since Connor’s inquest, when somebody live-tweeted the process and carried on live tweeting the hearings, the public got more aware of what was going on in the settings and the terrible actions of the NHS, which too often are appalling. As for the uneven playing field, we were not even on a field. There was no field for us. They were already on it scoring goals before we got there.

Lord Woolf

I have one more question, if I may. I would like to hear both your sets of views about this. You must have thought, since your experiences, how it should be done, as opposed to the way it was done. Can you help us by telling us what you think should happen, assuming that the ideal happens, which it very rarely does? At least if we know what should happen, which you must have thought about, it may help us.

Simon Rowland

I would start at the very basic level of funding legal representation for the families. Sara and Richard had seven barristers weighted against them. I think we had six or seven—too many to count, really. All were public bodies, all with full legal teams, all publicly funded, yet the family, which is the injured party, is expected to fund itself.

Lord Woolf

Which bodies were represented?

Simon Rowland

The Metropolitan Police, the London Ambulance Service, the London Borough of Richmond, Chelsea and Westminster, an NHS foundation trust, South West London and St George’s Mental Health Trust, and West London Mental Health Trust. They were the ones that were represented, but then there were several teams within those that were not fully under the umbrella of each service.

Lord Woolf

And their basic interest was to show that they were not responsible, so they were in a way against you.

Simon Rowland

Yes. We were always told that the inquest would be inquisitorial, as you pointed out, but in reality it is adversarial, because those parties and those barristers or advocates are trying to shift the blame from them to someone else. They are not being open about what has happened; they have an agenda to remove as much blame as possible from their client.

Lord Woolf

What about you, Mr Huggins?

Richard Huggins

There is a point to be made, and I suspect that my colleagues here may agree. In the last four and a half years, none of the families, the people we have met who have gone through this process, set out wanting to see people punished. We wanted answers. We accept that things go wrong. It was as much the process by which this was concealed and the aggression with which it was concealed that was the problem. Things happen. People die. Sometimes people make genuine mistakes. The NHS, for instance, does not follow candour rules. It is not open. You have to fight just to get the basic truth. If it has to stay like this, families obviously need legal representation or they will be wiped off the floor. Not only did the NHS employ barristers, but it has its own legal team in-house; it has standing solicitors. Even if it was denied public funds to represent itself—you could put it the other way and say that nobody is allowed to represent themselves at a coroners’ court—it still has its lawyers sitting in the media room or wherever, so the family would still be ill equipped. Families need fair support. There also needs to be a genuine attempt on the part of the coroners’ courts to be inquisitorial and investigate on behalf of the family of the bereaved, rather than act as some sort of referee between legal teams, which is effectively what ended up happening.

Lord Trimble

You also want the professional bodies to impress on their people that they have a duty to behave as professionals.

Richard Huggins

Yes.

Fiona Bruce

My question has largely been answered, but I will probe a little further. Mr Rowland said that they wanted to shift the blame. These are not corporate entities with a particular concern for reputational damage. Why do you think they wanted to shift the blame?

Sara Ryan

These trusts are obsessed with reputation. The day after Connor died, the trust wrote a briefing about my blog in which it flagged up the fact that I might make something of the fact that I had blogged that Connor had an epileptic seizure in the trust. This was the day after he died. Instead of trying to help us to understand the inquest process, or possibly doing another 100 things that it could do to ease the pain that we had been catapulted into, it thought about its reputation. I do not mean this rudely, but it is totally naive to say that these are not corporate bodies. They are worse, because they are public sector.

Fiona Bruce

They function like that, even though they are public sector. So it is reputation as much a concern about subsequent litigation, you think.

Sara Ryan

I do not think that litigation features for them. I think it is reputation first and foremost. That is the irony. That is what generates the litigation, because families are brutalised by that.

Fiona Bruce

Yet this is the NHS, our NHS.

Sara Ryan

I know. We have said this a billion times.

Richard Huggins

And we never litigated, we never planned to litigate, it was never about litigation. It was always about what happened and why, and that is all. There was never any question of litigation. From the outset, we said to the police and everyone else that we were not looking for individuals to blame; we were looking for corporate, institutional responsibility.

Lord Woolf

You were doing that in the hope of avoiding similar things happening again.

Richard Huggins

Yes.

Chair

You have given us a searing exposition of what actually happened after you had experienced the worst of all losses. You have really helped us to shine a light on it. There are two human rights issues here. The first is the right of someone not to lose their life in the care of the state. The second is the procedural obligation on the state itself to find out what happened and have a proper process. What you experienced was that you had to fight against the state to have that light shone on it. I know how difficult it must have been to give evidence to us, but it has been incredibly helpful to us for our inquiry, so thank you very much indeed. Examination of witnesses Deborah Coles, Katie Gollop QC and Merry Varney.

Chair

Thank you very much indeed for coming to give evidence to us in this inquiry. I know you have been present for the first part of our sitting. Perhaps I may start by inviting Lord Trimble to ask his questions.

Lord Woolf

Perhaps I may disclose that I have in the past been involved in litigation in which Leigh Day has been involved, and that Leigh Day assisted me, giving evidence at an inquiry I conducted.

Lord Trimble

We want to start with a very general question, which is to ask you from your perspective as legal practitioners how easy or difficult you think it is for people to vindicate their human rights.

Deborah Coles

Can I start off from the position of inquests, because I am the chief executive of INQUEST, so I am not a legal practitioner?

Lord Trimble

The next question homes in on inquests.

Deborah Coles

I think the families have articulated the challenges brilliantly. It starts from the very point of being informed of the death in the care of the state and the lack of access to information about your rights, how to exercise them and where to go for advice and support. Then there is the issue that you have covered to some extent, which is the fact that there is no automatic right to non-means-tested public funding and the distressing, protracted and very intrusive nature of what families have to go through when trying to apply for any funding. That information deficit and confusion is all taking place when you are going through the worst experience. What these two families have articulated is absolutely the norm. There was an important question about what kind of information was provided. That is an issue that INQUEST has raised with the Ministry of Justice time and again.

Lord Trimble

Is not part of the problem that this is the culture within hospitals these days—always covering up and trying to put the blame elsewhere, rather than having an objective look at what they might have done better?

Deborah Coles

If I may say so, it is compounded when you are talking about a death of someone in the care of the state. At the point at which someone has died unnaturally in the care of the state, your most significant human right is your right to find out how someone died and to have an effective investigation. We are talking about how NHS trusts, the Prison Service and the Police Service close the issue down, and it is for the family to try to negotiate those processes to find out the truth, to get some semblance of the article right to know what happened and, crucially, to try to prevent it happening to anyone else again.

Lord Trimble

It is interesting that the evidence we heard was that, by and large, the coroners did a reasonable job and that the problem rests with the other so-called professionals there. Perhaps the solution is to make the coroners even more inquisitorial than they are. One gets the impression that although it is supposed to be an inquisitorial process, coroners are not pushing it; they are not anxious to advance the inquiry. If we equipped coroners with better resources, is that not more likely to produce the result than seeking changes in legal aid which are unlikely to occur?

Merry Varney

I represent a lot of families in coroners’ courts up and down the country, and there is huge variance among coroners. Some coroners are very proactive and have made an Article 2 ruling before we are instructed. In another recent example, had various evidence been available at the time the family was unrepresented, a coroner would have held a half-day inquest into a matter that, now we are three pre-inquest reviews in, is likely to be two or three-week Article 2 jury inquest, so I fear that a lot more will need to be done than simply giving coroners more powers. They will need better training, better access to people who represent bereaved families, not always those who are on the other side of the fence. To return to your first question about human rights enforcement more widely, before we return to inquests and coroners’ courts, I should say that I practise in the area of domestic human rights, mainly in social care and healthcare contexts. Essentially, if you are not eligible for legal aid, you are really disadvantaged. Just take court fees, for instance. The difference between issuing a negligence claim and a Human Rights Act claim is an extra £400 for the Human Rights Act claim, because there are excess fees for claiming declarations, which is the primary remedy for a Human Rights Act violation. Regardless of any legal fees, just looking at the court fees, you pay more to bring a Human Rights Act claim. On top of that, if you do not have legal aid you do not have the same level of protection from paying the other side’s legal costs if you take your case and lose. In personal injury cases—this may or may not cover some human rights cases; it is uncertain—you do not get that protection. Families regularly tell me that they are bullied into submission, or I have to advise them that unless they are willing to take substantial financial risk, it is not in their best interests to proceed with litigation. These are often complex and borderline cases. The Human Rights Act only came in in 1998. It is relatively young, and there are not many Supreme Court cases for us to give clients definitive advice. Speaking today on the seven-year anniversary of Janet Tracey’s death, I acted for that family in a judicial review about how the right to respect for personal life meant that you had a right to be told that a do not resuscitate order had been placed on you as a patient: that you should be told and you should be consulted. Had that family not been eligible for legal aid, we could not have taken that case, which was a landmark decision in upholding human rights in end-of-life care.

Katie Gollop

I have thought about this and there are five points that I would like to make. First, you do not know the scale of the problem that you are dealing with. That is probably because the number of claims that are brought or even come to a lawyer’s attention are the tip of the iceberg. People are ignorant about their own human rights and, if you do not know what your rights are, you do not know whether you have an enforcement problem. It is a Donald Rumsfeldian “You don’t know what you don’t know”. Even if people know their rights, they do not always know when they are being infringed, because that can be quite technical. Secondly, a lot of the people whose human rights are infringed are very hidden from society. It is because they are uniquely vulnerable in one way or another that they need the protection of the European Convention on Human Rights and the HRA—for example, children in care, very elderly people who are vulnerable in care homes or hospitals for the purposes of receiving care or mental health treatment, and mental health patients, about whom we have heard a lot this week, with the statistics on the deaths of detained patients with mental health problems. I tweeted to ask some questions about this. One chap with a police background talked about the issue with human rights and the lack of secure beds in the mental health estate at the moment. That means that the police arrest somebody with obvious mental health problems under the powers that they have to arrest, either to take them to a place of safety or to get them to a place where they can get the mental health treatment that they need, but there are not enough beds. The police end up having to detain them in custody. That could be for five or six days, during which time their Article 5 rights, possibly their Article 3 rights, and if things go badly wrong possibly their Article 2 rights, are being infringed. Lots of those will be people who do not have family or do not have family who know that there is a human rights issue. It is not going to go anywhere because they would always have been detained in one or way or another anyway, because they were going to end up as an involuntary patient with a mental health problem. That brings me to the next point—the nature of the remedies, which Merry just touched on. You get money, maybe. Principally, you get a declaration, which is a piece of paper telling you that a court has found that your human rights have been infringed. That is great—it is better than nothing and it is a public statement, which is important—but for a lot of people it is just a piece of paper. They did not want vindication. They wanted some help, some change, something different, some extra resources, some treatment or not to be where they were. The state does not have that in its gift. For a lot of people, given the financial outlay, the risks that they have to take and the process that they have to go through, which Merry has just talked about, the game is not worth the candle to get a declaration, which is all that there might be.

Merry Varney

They just cannot get there. They cannot take the risk—they might lose their home.

Katie Gollop

But the point is that, even if they do get there, it would be for a declaration. On funding and compensation, our funding culture is very much geared towards the amount of compensation that you are going to get at the end of it. If, for example, you go into hospital and as a result of negligence you are a brain-damaged baby, the settlement is many millions and there will be no difficulty in getting the funding because of the proportionality between the legal costs and the compensation. Proportionality does not work out in human rights terms, because the damages that you get are relatively low. The case of Rabone, which you may know about—it is about a person who took their life shortly after they had left a mental health hospital—went all the way through the appellate system in order for it to be worked out whether your human rights carry on if you kill yourself outside a mental health hospital rather than when you should still have been a detained patient. The parents of that young adult got £10,000 each. It will cost much more than £20,000 to take such a case. If you are doing it on legal aid and the statutory charge bites—the amount that the state can get back out of the legal aid that it has given you—in a smaller case, where the compensation is less, because it concerns a procedural breach, for example, the statutory charge can eliminate the damages and absolutely wipe them out or reduce them. Again, the game is not worth the candle. My final point is about limitation. The limitation period to bring a Human Rights Act claim is 12 months. That is much more strictly enforced than the limitation period for personal injury, which is three years, although very often you get an extension. We have heard from these two families that it took them two or two and a half years to get to the inquest stage. You already have to have issued your claim before that. I want to say one thing about what you said about hospitals, which makes me feel very uncomfortable. I act for the state as well as for families. A lot of NHS trusts would strenuously argue that they do not cover up and that they try to observe their duty of candour, which came in after the Francis report in 2015. They try to reach out to families. They do a serious untoward incident report and they share that. Some trusts do that and some do not. Quite why the practice is so mixed, I do not know. It should not work out like that. I have written a paper for you, although I do not think you will have got it yet. It is about the multiagency investigations—the prisons, the NHS trusts and the police service. All those investigations cover the same ground over and over again, with the state throwing in huge resources. If only those worked in the way they should. The coroner ought to have handed to them all the information that they need. There should not be this need for a five-day, 10-day or 15-day inquest, with a coroner who is much more inquisitorial. It should all have been done.

Lord Woolf

I do not know the answer to this, but is a hospital, where there is no detention of the patient, treated for all purposes as the state? The other agencies that you talked about are clearly the state, but is a hospital the state?

Merry Varney

In the cases that I have been instructed in, it depends on the circumstance. The Article 2 right to life can apply in a hospital circumstance. It has been the subject of a very recent Grand Chamber decision in Strasbourg involving Portugal. Although no substantive violation was found of the right to life in that case, which involved co-ordination of professionals in a hospital, the Grand Chamber found a breach of the investigative, procedural obligation, because it felt that the state had not properly investigated.

Lord Woolf

Forgive me, but it does not follow from that finding that the hospital is the state. The investigatory process to which it refers is about what happens after.

Merry Varney

It is a public authority for the purposes of the Human Rights Act.

Lord Woolf

It is a public authority, but I wondered whether it was the state.

Katie Gollop

It is not obvious and it is quite difficult. We have just had the Court of Appeal decision on Ferreira, in which the argument was that there should be an Article 2 inquest because the patient died while they were in intensive care. The Court of Appeal said, “No, you are there for the purposes of receiving medical treatment. If people had asked you and been able to obtain your consent, you would have consented to having the treatment that was keeping you alive, so you are not detained”. There are different situations where all sorts of different circumstances pertain as to whether the deprivation of liberty safeguards apply, particularly in relation to care homes. That is a lot more edgy and arguable. You can throw a lot of money at deciding whether your Article 2 rights are engaged and, if they are, whether they have been infringed and, if they have, whether it is a procedural or a substantive breach. You might be £15,000 down before you even find that out.

Deborah Coles

There has been a lot of focus on compensation, and I just want to reiterate what families tell inquests that they want after somebody has died. They want to know the truth. They want to know whether there have been any failings and why those occurred. They want some accountability. Most importantly, they do not want it to happen again. The inquest process is what families have been given to find out what happened to their loved one. They do not choose to initiate it; the state initiates it for them to find out. That is the process that they have to go to. The inequality of arms is the single greatest obstacle to families trying to get those answers. Regardless of the case, where somebody dies in the care of the state there are teams of lawyers representing those public authorities, be that the NHS trust, the prison or the police station. One problem has been outsourcing, which means that more and more private companies are now involved in delivering healthcare services in a prison context, for example. I think it is fundamental to families being able to exercise their rights that they have a publicly funded lawyer to assist them through that process, without having to go through the distressing means assessment, which all our families have to go through. Many of the families with whom we have worked have felt so upset by having to fill out these forms that they have completely withdrawn from the process or we have tried to organise pro bono representation.

Lord Trimble

Let me respond to your suggestion of a lawyer who is there, distinct from the coroner, to give advice, help and all the rest of it. It occurred to me while you were speaking that if you are involved in an inquiry—with a capital letter, as it were—there is always counsel to the inquiry. That is the standard procedure. Counsel to the inquiry works with the persons conducting the inquiry but is distinct from them and interacts with all the sources of information that come to him. If someone performed that function in the inquest, it might operate more effectively.

Lord Woolf

The coroner service has the legal ability to represent the bereaved.

Deborah Coles

What is interesting is that both the former Chief Coroner, Peter Thornton QC, and the current Chief Coroner, Mark Lucraft QC, have supported the right of families to have legal representation at inquests. There is an increasing recognition by coroners that having the family represented assists the process. Otherwise, the coroner is in a difficult position, trying to balance what is often a completely unequal playing field. Increasingly, coroners welcome and support many of our families’ applications to the Legal Aid Agency for funding. In some of the more complex inquests, you sometimes have counsel to the inquiry, but that does not take away the importance of a family having a lawyer to represent their interests. Another important thing has been articulated by the families. For a lot of state lawyers and corporate lawyers, the job is damage limitation and reputation management. You see them trying to close down the inquiry and to restrict the questions that are left to a jury to consider. You also see them trying to prevent the coroner from making recommendations to prevent future deaths. I say this because I have the evidence to support it, going back many years, and I am sure that Merry will support me in this. It is very often the families who have turned the inquest into a significant process, and not only for themselves. At its best, an inquest will try to safeguard lives in the future. It will represent not just the families’ right to the truth but the public interest in ensuring that, if you die in the care of the state and there have been system failings, we learn from that in order to try to prevent other families from going through a similar process.

Baroness Hamwee

You mentioned the attitude of the previous and current Chief Coroners. Is there any guidance from the Chief Coroner about what information families should have? We have heard from Merry that there are variations between coroners. There are also variations between coroners’ offices.

Deborah Coles

That is currently being considered by the Ministry of Justice. I sit on the ministerial board on deaths in custody, which is responding to Dame Elish Angiolini’s review on deaths in police custody, in which she makes some clear recommendations about families having access to information and support, and not just after deaths in police custody. Alongside the Bishop of Liverpool’s review of families’ experiences after Hillsborough, there is now a recognition within government that it needs to do something about this information deficit. It is now considering the introduction of new information leaflets for families to have at coroners’ courts, particularly about the more complex inquests.

Fiona Bruce

Thank you for attending. Your evidence has been very interesting. You have touched on both the questions that I want to ask, so perhaps you could answer them with any additional information that you want to give us. First, the Article 2 procedural obligation requires that families be involved in the inquiry to the extent necessary to safeguard their legitimate interests. What are those legitimate interests, in your view?

Merry Varney

As we have heard very well from the families who sat before us and as I have heard from many clients, they want to know what happened. Their loved one has died behind closed doors, often, and they have to fight to get the information. I find it obvious that, if your loved one dies, you will want to know how and why. When you are feeling the intense grief and horror that these families have experienced, you want to know that there can be something potentially positive and that you can prevent another family from treading that line. To link back to some of the other topics that we have heard about, as a lawyer operating in this area, the very first discussion that I often have to have with the families is about funding. It is difficult. They want to understand the process and so forth, but lawyers can only do a limited amount of pro bono work—I hope that that is accepted. Because the system is so complicated, that is another barrier to information. You do not get to the heart of protecting those legitimate interests until you have overcome the hurdle of funding.

Katie Gollop

There is another phrase: “Your right is to an effective investigation”. We have a phrase in our jurisdiction that the inquest must be “full, fair and fearless”. It seems to me that that is the right of every interested person who comes before the coroner. I do not see how you can have an effective process in which everybody is professionally represented except the family. I was dispirited to hear Lord Trimble say that it might not be realistic to have the legal aid budget extended to provide representation. It just has to happen; you have to make it happen. We cannot go on the way we are, with pro bono filling the gap. It shames us to have families go on Twitter and crowdfund their representation at inquests.

Deborah Coles

The other point in response to the question is that the families’ representation is not just about the inquest; it is about trying to inform the various investigations that may well take place before the coroner’s inquest. The coroner does not have resources to conduct his or her investigation and so is reliant on the investigations that have been carried out. We have independent investigation bodies for the police and prison deaths, unlike mental health deaths, where you effectively have NHS trusts investigating themselves. This is not about the investigation system but, to try to make sure that families can have full and effective involvement in the investigations, the better the investigation, the better the inquest is likely to be. The other point about funding is that, if anyone is interested in looking at the cost to the public purse, the question that we should be asking is why public authorities feel that it is appropriate to have three or four lawyers, all paid for from the public purse, doing a very similar job at an inquest, often working together as a team. If you are lucky, there will be one lawyer for the family. Public funding is available for families’ representation and often families will get funding, but the process to get it is intrusive, can take months and is not backdated. That is another issue at which government is looking at the moment. The fundamental thing is that you can have good, fair inquests in which families feel confident in their legal representative, who is there in their interests, and it is the family’s interest that is the most pressing in those kinds of cases.

Katie Gollop

Can I say one more thing about having an effective, fair et cetera process? It ties into what Lord Trimble asked: cannot we have callers who are more inquisitorial, almost asking questions on behalf of the family, and scale it all down in that way? I thought about that a lot before I asked for views in my barristers’ chambers. One QC there pointed out that there is a real human rights problem with that. If we ask the person who is effectively the judge investigating on behalf of the state to step into the arena on behalf of one party—we do not call them parties, we call them interested persons because it is not adversarial, except that it sort of is—if the coroner does that for one body but not the others, the coroner might be seen as parti pris by the others, and there is no equivalence between having your own legal team that you can go into a huddle with, talk to and say, “That’s not true what that person just said. Can you ask this?”, or “Look, we’ve just found this document. What do we do with this?” The coroner cannot do that for each interested person for obvious reasons of fairness, so everything has to be done in public as a group in front of everybody. It is as difficult for the coroner to step into the arena on behalf of the family as it might be on behalf of the trust, prison, police force, or whomever else.

Merry Varney

Look at the number of judicial reviews brought against coroners. I have been instructed on them in the past and brought judicial reviews against coroners who have refused to open inquests where, thankfully, we have managed to persuade them otherwise before legal proceedings have been necessary. The idea that that person could stand representing the family when historically families have brought lots of challenges against them will not instil confidence in a system that badly needs it.

Chair

Before Fiona follows up with her next question, perhaps I may ask this. On the question of inequality in coming to the truth when there is such an imbalance between the legal teams acting on behalf of the state and the families, what do you think about the notion of some way of calculating it so that an assessment is made of the cost to the public purse of the representation of all the agencies involved and either an equal amount or some percentage of that granted to the families? What about a formula that allows the health authority, ambulance service, social services, police and everybody to spend a fortune, but that says: “But you’re going to have to spend a percentage of that on the interested party”? That could be done through those agencies, not through the Legal Aid Board, so those state bodies’ right to be represented in a coroners’ court would come with the cost that they would have to tithe over some of it to the interested party.

Katie Gollop

That is incredibly interesting. One can see that it might have the effect of improving standards, because that way, the fewer deaths you have, the less you have to pay out. It should be that way anyway. I have not thought about that before, and there are probably all sorts of twists and corners. If I may, I will have a think about it and perhaps get back to you. To a certain extent, in some cases, it happens anyway, because you get your representation at inquest by entering a no-win, no-fee agreement—some families do that, although not all, particularly where the compensation might make it worth while—and you run the inquest as a precursor to litigation to find out some of the information that you will need to run your negligence action. Then you run your negligence action, which you hope to settle, and some, perhaps not all, of the inquest costs will form part of the cost of that negligence action, so the cost of representation gets transferred to the state body that is at fault in any event, but through this cumbersome process.

Chair

That sounds quite ex post facto and complicated.

Katie Gollop

And the coverage is very limited. I am not saying it is a good idea; I am just saying that it is happening anyway, so looking at a percentage up front might be worth considering.

Fiona Bruce

I will give you my original question in a moment, but I want to go back to something Ms Gallop has just said. Our previous witness said that they felt that reputational damage was the main motivating factor behind all the defensive artillery mounted against families, but you are saying that the fear of litigation is an aspect, almost mounting a defence as a precursor to it.

Katie Gollop

Yes, with some deaths it is.

Fiona Bruce

Do you have any idea of the proportion of cases where you think that that is a legitimate concern?

Katie Gollop

No, I do not, to be honest with you. The sad fact is that in some deaths it will not attract much compensation. If you are a young, unmarried adult with no children, your death will be “worth very little”. It is often in cases where there are dependent children or a family who are financially dependent on the deceased where litigation will form part of the background.

Fiona Bruce

So it is not an insignificant consideration at times.

Katie Gollop

Absolutely not.

Fiona Bruce

Ms Gollop, you anticipated my second question, but I will put it in case there is anything further that anyone wants to add, because the Committee is interested. The Ministry of Justice points out that inquests are an inquisitorial process, so it is argued that families do not need to be legally represented. What is your view of this position? I think that in fact, Ms Gollop, you have answered that, but do you or our other panel members want to add anything?

Deborah Coles

I have to say that that is a really dishonest statement from the Ministry of Justice, which, to be fair, I think it is increasingly recognising. It might be the case in more routine inquests. Although I do not want to undermine the impact of going through an inquest, not all inquests will involve lawyers. Hearings with the right kind of support and the Coroners’ Courts Support Service, which can support families who are there for a short inquest, may well be a much more informal process. However, the kind of cases that we are talking about that engage Article 2, state-related deaths, lawyers are automatically appointed on behalf of the state and other professional associations or corporate bodies. That is a fact. Automatically, those lawyers have an adversarial approach. One thing that we have been advocating and that has been discussed in the House is the Hillsborough law Bill, the Public Authority (Accountability) Bill, to try to make lawyers who represent the state adopt position statements earlier to accept certain failings. If they would put their hands up and say, “We accept these”, that would take out some of the adversarial nature and reduce the time taken by some of these inquests. That came out of the Hillsborough inquests, in which, I might add, the families had parity of funding that came from the various government departments. Those families were given non-means-tested public funding and got help for travel and subsistence. It is often an issue for families to travel to an inquest, to take time off work or to feed themselves during the process.

Baroness Lawrence of Clarendon

From listening to the families, there is bereavement and the state does not take that into account, so I think the word “fight” is really disgraceful. I have had experience of that, but listening to both families, all I am hearing is the word “fight”, and you should not be put in that position when the state is responsible for the death of your loved one. I just wanted to say that to start with. I am getting a bit emotional here because of listening to that and my own stuff. It has been proposed in a number of high-profile reports that when a state body is represented by a lawyer, public funding should automatically be made available to the family of the deceased. There are a couple of questions here. How could this be achieved? Could it be done by amending the Lord Chancellor’s guidance on exceptional case funding? Would it change the nature of inquests to do this?

Deborah Coles

Thank you for your earlier comments, because I completely agree with you. It is the common experience of families to feel that it is a fight. I think that what sets the tone for that is the knowledge from the outset that there is no non-means-tested public funding for families to be represented. If we had funding, that at least would give families confidence that the state recognises that they have legitimate rights to play an effective and meaningful part in the investigation process into their loved ones’ death. It must be non-means-tested. That is really important. If families felt from the outset that that existed, it would deal with some of the trauma and distress of knowing from the beginning that you have to think about how you are going to fund a lawyer at a time when you are grieving and trying to go through some of the post-death rituals. That is particularly significant. We never ask the other question, which is: why is it automatic that state lawyers are involved from the outset, at great cost to the public purse? It should be asked whether it is absolutely in the public interest that we have a lawyer here. Of course, it is people’s right to be represented by their professional association or trade union, but we need to ask about the multiple state lawyers who turn up at some of these complex inquests, and on whose instruction they are turning up. Is this to assist the process to come to the truth, or is it about protecting reputations and trying to close down potential criticism of what has happened?

Merry Varney

Would it be useful for the Committee to understand the legal aid process in inquests, because we have talked about it a few times? It is important to reiterate that it is really complicated. First, there are two forms of legal aid. You have legal help for the preparatory work for an inquest and exceptional case funding for the advocacy at inquest. They do not overlap. There are arguments about what falls under what heading. Legal help is available for anybody who is financially eligible. It works on the basis of a fixed fee, or lawyers can claim higher costs after the event if they persuade the Legal Aid Agency after they have done the work that those should be recovered. If you are applying for both, the bereaved family needs to provide three months’ worth of bank statements for every account they hold. They have to provide payslips. This is not just the client who may have come to you, this is bereaved families, so you may have separated parents who are being told by the Legal Aid Agency that they have to make contact with an estranged ex-spouse in the wake of the death of a family member. Entries on their bank statements may be questioned. I have had clients asked about what they spent £15 on on this date and £30 on on another. That is the financial side of it. Then you have to wait for a decision on whether the financial limits will be waived. Once that is done, you need to get over the merits criteria. I spend many hours, as does my team, persuading the Legal Aid Agency that it should grant funding. In the areas in which I practise, most commonly I get it on appeal, so I will have spent hours with a bereaved family, who are waiting anxiously to know whether they will have continued funding to instruct us. Sometimes there is some mild improvement, and we are doing what we can to help the Legal Aid Agency, but generally the quality of decision-making has been very poor, unless it is what is known as an automatic Article 2 case. For anything on the fringes, you get a no. I had recent experience where the letter was so bad that I felt unable to phone my client. I did not want to put them through the grief of reading a letter with their deceased daughter’s name spelled incorrectly and incorrect facts in it. I was lucky: I knew the people to call to get it withdrawn, so that by the time I updated the bereaved family they were hearing that this was not the final decision. I cannot tell you how common this experience is for bereaved families. So when you are thinking about the process and automatic means testing, you are taking away a substantial burden on families to produce detailed, financial information. We should be focusing on what happened to their loved one and trying to prevent it happening to somebody else.

Baroness Hamwee

On exceptional case funding, I absolutely accept what you say—that we should not go there—but since that is what we have at the moment, there are criteria within the Lord Chancellor’s guidance about what should be considered. If there are going to be criteria, do you think that these are reasonable, or are there others, apart from it being available to everyone, that you would like applied? Are the current criteria applied consistently, which I think it is a slightly different point from there being mistakes within the system?

Katie Gollop

I have been thinking about whether we can do things slightly differently with legal aid at the moment. I feel strongly that we should be working better with what we have, given the amount of resources that the state already spends on investigating what is often a multiagency death but sometimes even a single agency death. I have identified two situations where, if there is an article, you really do not need representation for the family. One of those may be where the circumstances of the death are extremely straightforward and everyone already knows what they are. Another is where there has already been a full, open and reliable investigation that has laid bare all the facts, the truth has already been arrived at and there is very little for the coroner to do. I have given you some examples at the end of my paper. A couple of those are when the family was unrepresented, but it really did not make any difference, partly because the coroner was already doing a very good job. I wondered whether it would help to have a certification process that the coroner goes through to certify whether the case is one in which the family needs representation or not—in rare circumstances, you can say that a family genuinely does not—and that decision would be judicially reviewable.

Merry Varney

I am sorry to interrupt, Katie, but judicial review is accessible only if you are available for legal aid. If not, judicial review is also prohibitively expensive. We have to be very careful about giving the impression that there is a remedy for decisions that you do not like; we are just shunting the problem further down the line.

Katie Gollop

I put a lot of that in the paper and said exactly that, so we are all on the same page with that. There are other problems. It puts an added burden on coroners. Coroners have no time, no resources, no money and inadequate training. They are still a local service, not a national service, so they all do things differently. Until things are working better, the default position should be that you get legal aid as a family. The other thing that we could do is reframe the whole thing and say that the inquest is not the only part of the way in which the state investigates a death. It is often the last bit. It is not the only bit. I would like a system in which in a multiagency death, those agencies had to get together and have some kind of mediated day where they discussed what has happened, look at the lessons learned and a report is issued on that before the inquest. That could be done without lawyers.

Baroness Lawrence of Clarendon

On exceptional case funding, how many inquests do you think this would affect, and how much do you think it would cost if it was given out automatically to families?

Merry Varney

I do not have those figures. I looked at the Chief Coroner’s report to try to get some, but it is difficult to find statistics on the number of Article 2 versus non-Article 2 inquests. For completeness, legal aid is also available in inquests where you can persuade the Legal Aid Agency that there is a wider public interest, not in the inquest itself but in being represented. I have made several applications, but I have never had a successful one.

Baroness Lawrence of Clarendon

How would a family be able to do that if they do not have the legal representative in the first place? How would they be able to argue with the coroner that they should have the financial support in order for them carry on?

Deborah Coles

To be fair to some coroners, a number of them have referred families to us because they recognise that there is a need for the family to be legally represented. Coroners are increasingly supporting families’ applications to the Legal Aid Agency. But even in those cases we have examples, which we can share with the Committee, of funding being turned down even where the coroner said that the case clearly engages Article 2. In answer to your question about numbers, the way to try to work that out is probably to look at how many deaths take place in the care of the state. That might give you a figure, which we do not have. We asked the Ministry of Justice a Freedom of Information question about the cost to the public purse of its representation at inquests into prison deaths, and it was nearly £4 million over a financial year. I am also interested in looking at the cost to the public purse of multi-lawyer representation, because that is a significant figure. If we are looking at parity of funding for families’ representation, it would be interesting to know how it compares.

Chair

In conclusion, there are two points to make. First, we thank INQUEST for all the work you have done over many decades to help people where the system has not been adequate. You have been a real lifeline, so thank you for the work you have done over the years. Indeed, we recognise that there are lawyers who work pro bono. The common perception is that you are all asking for the money up front all the time and the fact that that you work for free for people in difficult circumstances is admirable. We can certainly ask questions of the coroners’ system on the issues that you were unable to answer about how much various things might cost. Bearing in mind that so many committees have been making proposals to the Department of Justice and the Lord Chancellor’s Department in all sorts of incarnations over the years and getting nowhere on this, I also ask you to think about how a proposal might work whereby state agencies that are represented in the coroners’ court have to pay for the family as well. That might repress how much is spent by all those multi-headed and multi-represented agencies. You are expert on all these processes, so it would help us if you could think of another way round it that is straightforward and that does not require us to make the same request that has been turned down by consecutive Governments over so many years. That does not mean that we will not make the same request again, but it gives us an alternative. If you could do that and write to us, we would really appreciate it.

Deborah Coles

My understanding from the ministerial board that met last week is that guidance is currently with the Lord Chancellor or the Minister about inquest funding, but we have been unable to establish what it says. You might have means of getting some answers, because I know it is being discussed at the moment.

Chair

Perhaps this is a good time to look at all this. Thank you very much to you, the lawyers, and INQUEST and once again to the families. Thank you very much. Oral evidence: Human Rights: attitudes to enforcement