Martin Partington: Spotlight on the Justice System

Keeping the English Legal System under review

Posts Tagged ‘inquests

When Things Go Wrong: the response of the justice system: a report from JUSTICE

leave a comment »

When Things Go Wrong: Grenfell

On 24 August 2020, JUSTICE, the Human Rights Group published an important report on the principles that should be applied when establishing public inquiries when some catastrophic event has occurred.

At present, a tragic incident may result in a range of concurrent legal processes: criminal investigations, disciplinary hearings and civil claims may be initiated that share identical subject matter with an inquiry, inquest or both. These overlapping processes can be confusing for those involved: at worst, layers of legal duplication can fuel the pain of loss. From the perspective of those caught up in the aftermath of the disaster – including victims, witnesses and alleged wrongdoers – the process can be agonisingly protracted. Further, survivors and their families often speak of alienation, mistreatment and whitewashing by the very bodies set up to identify the wrongs they have suffered. Their accounts suggest that inquest and inquiry processes are often highly adversarial and potentially retraumatising. And those with the most at stake may understandably fear that nothing will change once the processes conclude.

A Working Party of JUSTICE, chaired by Sir Robert Owen, asked whether there were ways to overcome these perceived deficiences. It considered:

  • timely justice: how elements of current fact-finding processes and investigation might be integrated to reduce duplication and delay;
  • transparency and responsibility: how investigations, inquiries and inquests can be better coordinated to embed best practice, promote certainty and ensure inclusion of bereaved people and survivors; and
  • fairer outcomes: how inquiry hearings can be improved with regard to procedures, evidence and effective participation.

The report made 54 recommendations under the following broad heads:

  • The framework – They recommended new State and independent bodies to provide oversight and facilitate information-sharing – a Central Inquiries Unit within Government, a full-time Chief Coroner and a special procedure inquest for investigating mass fatalities as well as single deaths linked by systemic failure, able to consider closed material and make specific recommendations to prevent recurrence.
  • Opening investigations – Greater collaboration between agencies, in order to build a cross-process dossier, which would reduce the multiple occasions that bereaved people and survivors have to recount traumatic events and ensure that they are fully informed throughout the process.
  • Procedure – Processes for appointing inquiry chairs and panels, for establishing the terms of reference and for providing information and relevant documents to core participants need to be more structured and transparent. Drawing on previous JUSTICE working parties on accessibility, we recommend that bereaved people and survivors are placed at the heart of the process – in choice of hearing space; improved communication and questioning by professionals and signposting to support services. Aside from the legal formalities, the report also called for widespread use of commemorative “pen portraits” and therapeutic spaces for bereaved and survivor testimony.
  • A statutory duty of candour, including a rebuttable requirement for position statements, which would help foster a “cards on the table” approach. Directing the inquiry to the most important matters early on could result in earlier findings and reduced costs.
  • Accountability and systemic change – An independent body should lead oversight and monitoring of the implementation of inquest and inquiry recommendations, whose review could aid scrutiny by parliamentary committees.

Source: Adapted from https://justice.org.uk/our-work/system-wide-reform/when-things-go-wrong/


Written by lwtmp

September 7, 2020 at 4:55 pm

Posted in chapter 6

Tagged with ,

Review of legal aid for inquests

leave a comment »

Inquests offer an opportunity to investigate how a person has died. This process can be traumatic for the bereaved family. But the search to find out what happened is important in helping them to understand and make sense of their loss.

In 2017, in the light of a good deal of public criticism, the then Lord Chancellor, David Lidington MP agreed that there should be a review of the provision of legal aid at inquests. The Report Final report: Review of legal aid for inquests was published in February 2019.

In my view the title is misleading. The Report takes an overall look at the Inquest process. Only 1 of 3 chapters is actually about legal aid. The focus is on process both before a hearing and at the hearing, and the report makes recommendations about amending those processes – which obviously cost little if any money.

Chapter 2 deals with legal aid. In the course of the review, the Ministry of Justice received evidence which pointed to a number of concerns that stakeholders had regarding the provision of legal aid and the role of  families in the application and inquests process. In particular, it suggested:

  • the current legal aid application process might not be fully understood;
  • there were difficulties in understanding the eligibility criteria for legal aid; and
  • there were difficulties understanding the types of cases where funding may be available.

The Review also considered the recommendation to expand the provision of legal aid for certain types of cases – such as death in custody cases, and cases where the state are represented. This is the big-ticket item as it in those, often very controversial cases, where there can be a significant inequality of arms as between the parties to the inquest.

In relation to this point, however,  the Review concludes:

Having considered the impact of additional representatives on bereaved families, the financial considerations, and the impact of a possible expansion on the wider legal aid scheme, we have decided that we will not be introducing non-means tested legal aid for inquests where the state has represented. However, going forward, we will be looking into further options for the funding of legal support at inquests where the state has state-funded representation. To do this we will work closely with other Government Departments.

So no big change. The Government says it will look at the information it gives to families. In order to address difficulties with the application process, the Government states it will look at the procedure for claiming under the Exceptional Case Funding Scheme to ensure it works as effectively as possible. It also states it will be introducing a provision for the backdating of the legal help waiver, so that all such payments can be backdated to the date of application should a waiver be granted. But these cannot be said to be substantial changes.

Given the overall approach to funding legal aid, following its Post-implementation Review of the 2012 reforms to legal aid (see this blog 8 March 2019) this conclusion is not unexpected. Nonetheless, it will be very disappointing to those who have to cope with inquests, particularly where there are significant evidential disputes as to what happened.

The Report can be accessed at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/777034/review-of-legal-aid-for-inquests.pdf

A press release is at https://www.gov.uk/government/publications/review-of-inquests

 

 

 

 

 

Written by lwtmp

March 8, 2019 at 12:50 pm