R Joanna Letts v The Lord Chancellor The Equality & Human Rights Commission (Intervener)
| Jurisdiction | England & Wales |
| Judge | Mr Justice Green |
| Judgment Date | 20 February 2015 |
| Neutral Citation | [2015] EWHC 402 (Admin) |
| Docket Number | Case No: CO/3614/2014,CO/3614/2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 20 February 2015 |
and
[2015] EWHC 402 (Admin)
Mr Justice Green
Case No: CO/3614/2014
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Phillippa Kaufmann QC and Chris Buttler (instructed by Bindmans LLP) for the Claimant
Martin Chamberlain QC and Malcolm Birdling (instructed by The Treasury Solicitor) for the Defendant
Jessica Simor QC (instructed by EHRC) for the Intervener
Hearing dates: 5 th February 2015
Index
| A. Introduction: Issue and Conclusion | 1–19 |
| (a) The Issue | 1–4 |
| (b) The Lord Chancellor's Exceptional Funding Guidance (Inquests) ("the Guidance") and the challenge thereto | 1–13 |
| (c) Conclusions on scope of Article 2 | 1–15 |
| (d) Conclusion | 1–19 |
| B. The scope of the proceedings and the limits of this judgment | 1–32 |
| C. A summary of the relevant facts | 1–43 |
| D. The statutory framework | 1–51 |
| E. The Guidance | 1–57 |
| F. The purpose and object behind the Article 2 duty to investigate and the right of next-of-kin to be represented | 1–65 |
| G. The Article 2 duty to investigate includes a right to legal representation in a proper case | 1–70 |
| H. The circumstances in which the investigative duty arises automatically, i.e. without evidence of (arguable) breach upon the part of the State | 1–91 |
| I. Conclusion as to the scope of Article 2 in the case of the suicide of psychiatric patients | 1–103 |
| J. The test to be applied to the legality of Guidance: When should the Court interfere? | 1–119 |
| K. The use of the word "most" in the Guidance, paragraph [19] | 1–122 |
| L. Appropriate relief | 1–124 |
| M. Conclusion | 125 |
A. Introduction: Issue and conclusion
(a) The issue
This application for judicial review concerns the criteria applied by the Legal Aid Agency ("LAA") to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which might engage Article 2 of the European Convention of Human Rights ("ECHR") as brought into effect in the United Kingdom by virtue of the Human Rights Act 1998. The duty to hold an inquest is governed in domestic law by the Coroners and Justice Act 2009. There is considerable overlap between that Act and Article 2; but the two do not necessarily coincide, as was recognised by the Supreme Court in R (Smith) v Oxfordshire Assistant Deputy Coroner [2010] UKSC 29 at paragraph [204] per Lord Mance JSC.
The first sentence of Article 2(1) ECHR stipulates that "Everyone's right to life shall be protected by law". There are many facets to this obligation which have been worked out in case law which it is not relevant in this case to delve into. It is common ground that, in broad terms, amongst the obligations that this imposes upon states are (i) a duty to set up systems of laws which are designed to protect life (the "systemic duty") and (ii) a duty in individual cases not to be complicit in the taking of life (the "operational duty"). Once again it is not the purpose of this judgment to examine the nature and scope of these two duties, save to observe that they exist and that the (different) duty which is at the heart of this case is derivative upon their existence.
The duty which lies at the core of this dispute is the duty to investigate a death which arises, or which might arise, as a consequence of a breach of one or other of the substantive duties referred to above. This duty of inquiry or investigation is sometimes termed the "procedural duty". Because it arises as a consequence of a violation or possible violation of the substantive obligations it is derivative or parasitic in nature. However, as I set out below, it has nonetheless been accepted as being of very great importance in any democratic society and its secondary character is by no means a reflection or indication of secondary importance.
For the investigation which must follow a death arising in Article 2 circumstances to be effective various conditions must be met which relate to such matters as the timing of the investigation following on from the death, the independence of the person conducting the investigation from the state and, of relevance to this case, the right of the next-of-kin to be involved in the investigative process. This latter condition in turn means that in certain cases the next-of-kin require legal representation at the inquest and this, in yet further turn, means that the state might be required to grant legal aid.
(b) The Lord Chancellor's Exceptional Funding Guidance (Inquests) ("the Guidance") and the challenge thereto.
The challenge in the present case focuses upon the lawfulness of the "Lord Chancellor's Exceptional Funding Guidance (Inquests)" ("the Guidance") which is promulgated under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"). Section 4 LASPO creates an implied power pursuant to which the Lord Chancellor may promulgate guidance which the "Director of Legal Aid Casework" (an official appointed by the Lord Chancellor under LASPO — "the Director") is required to take into account when determining applications for legal aid.
In the Guidance the Lord Chancellor endeavours, in relatively broad terms, to identify the steps that a caseworker, facing an application for legal aid to cover representation at an inquest, must take. The Guidance identifies two steps or conditions which must be passed in order to warrant legal aid. The first is that the case must fall within Article 2; the second, (which assumes that the first step is met), is that representation of the next-of-kin must be necessary to enable them to be properly involved in the inquest.
The present case concerns only the first step or condition. The Guidance seeks to define the ambit of an Article 2 case and it does this by directing the LAA to investigate whether there has been an arguable breach by the state of the obligation in Article 2. The Claimant, supported by the Equality & Human Rights Commission ("EHRC"), submits that the way in which the first step or condition has been framed in the Guidance reflects an error of law as to the scope of Article 2 ECHR, or at the very least is materially misleading, and that in practice any caseworker following the Guidance would impose too high a hurdle upon an applicant for legal aid and would therefore be inclined to refuse legal aid where otherwise it would, and should, be granted. It is submitted (i) that there are categories of Article 2 case where for the investigative duty to arise there needs first to be an arguable breach by the state of the substantive obligations; but (ii), that there is also a significant category of cases where if the basic facts of the case fit within a category of case to which Article 2 can in principle apply the investigative duty arises automatically and without there being a need to establish even a hint of culpability on the part of the state. It is argued that the Guidance by failing to even identify this category of case simply does not reflect the law and wrongly treats all Article 2 cases as requiring evidence of arguable breach by the state.
This is not, it is submitted, a technical dispute simply about eligibility to legal aid. The Claimant and the Intervener point out that the right for the next-of-kin to be involved, in an appropriate case through legal representation at an inquest, is itself a right conferred under Article 2 ECHR and that if therefore the LAA refuses legal aid this can result in the State being in breach of its duties under the Convention.
The dispute before this Court has two discrete aspects to it which I need to address. The first aspect or issue concerns the scope of Article 2 and in particular the question whether there does exist a category or categories of case(s) where the duty to investigate a death (and in this jurisdiction conduct an inquest, that being the way in which deaths are primarily inquired into in the United Kingdom) arises automatically without the need for there to be any proof that the state is or might be in breach of Article 2. The second aspect flows out of my conclusion on the first issue and asks whether the Guidance adequately reflects the position in law.
In relation to the first issue there was consensus between the parties that there are such categories of " automatic" case but there was disagreement as to the exact scope of those categories, or as to its "contours" (as Mr Martin Chamberlain QC, for the Lord Chancellor put it). I use the phrase " automatic" in this context to connote categories of case where the duty to investigate arise without there being a need for proof that the state is arguably in breach.
In relation to the second issue concerning the adequacy of the Guidance in reflecting whatever conclusions are arrived at in respect of the first issue, there was acute disagreement. The Lord Chancellor submits that the Guidance (albeit not worded as clearly as they might have been) are perfectly adequate and are intended to operate only at a very general level and not as a text book on Article 2, and that the Claimant and Intervener's criticisms are, in substance, semantic or stylistic and not such as to render the Guidance unlawful. Ms Phillippa Kaufmann QC (for the Claimant) and Ms Jessica Simor QC (for the EHRC) submit to the contrary that the Guidance is not only erroneous and would lead to the adoption of incorrect decisions...
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