The Queen (on the application of RJ) v The Director of Legal Aid Casework HM Senior Coroner for Manchester (City Area) (Interested Party)

Hearing date: 09/03/16

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

In this case the claimant challenges a decision of the Director of Legal Aid Casework ("the Director") to refuse her application for legal aid to enable her to be represented at an inquest.

The claimant is 17 years old. She has been assessed by a psychologist as on the borderline of disability in terms of her intellectual functioning. She has also had significant mental health problems. A direction has been made under section 39 of the Children & Young Persons Act 1939 prohibiting the publication in any report of these proceedings of her name or any details calculated to lead to her identification.

The inquest

The inquest is into the death of a firefighter who died on 13 July 2013 while fighting a fire in Manchester city centre. On the afternmoon in question the claimant and a friend smoked a cigarette at the rear of premises which shortly afterwards became engulfed in flames. The two girls approached the police at the time and explained that they thought that they were responsible for the fire. Following a police investigation into the incident, the claimant was charged with an offence of arson. On the day before her trial was due to start, the prosecution offered no evidence and a verdict of "not guilty" was entered at the direction of the judge.

Following the claimant's acquittal, HM Senior Coroner for Manchester (City Area) resumed his investigation of the death and an inquest is due to commence on 4 April 2016 before the Coroner and a jury. Many witnesses, both factual and expert, will be giving evidence at the inquest. The claimant has been named as a witness. She has also been designated as an "interested person" pursuant to section 47(2)(f) of the Coroners and Justice Act 2009 on the basis that she is a person "who may by any act or omission have caused or contributed to the death of the deceased". As such, she has rights which include the right to examine witnesses at the inquest (either in person or by a legal representative) and a right to receive relevant documents.

It is apparent that the inquest will be both factually and legally complex. There are a number of other interested persons who are represented by solicitors and counsel. The evidence about the claimant indicates that, without assistance, she lacks the capacity to participate in the proceedings in a way that will enable her effectively to protect her own interests. The Coroner has also expressed concern (in written representations made by counsel on his behalf) that the inquest will take longer and cost more if the claimant is not legally represented. There is no suggestion that the claimant has the means to pay for legal representation unless she receives legal aid.

Legal aid funding

The provision of legal aid funding is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO"). Proceedings before a coroner's court do not fall within the definition of "criminal proceedings" in section 15 of LASPO and representation at an inquest is not a service for which civil legal aid is generally available under the Act (see section 9 and Part 1 of Schedule 1). Such a service is available only if the requirements of section 10( 2) or 10(4) of LASPO are satisfied. Advocacy in proceedings at an inquest is covered under section 10(4) in certain circumstances, but only for members of the family of the deceased. In other cases civil legal services are available to an individual only where the Director has made an "exceptional case determination" under section 10(2). As defined in section 10(3), this includes a determination:

"(a) that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –

(i) the individual's Convention rights (within the meaning of the Human Rights Act 1998) …"

An application for exceptional case funding under this provision was made on behalf of the claimant in this case but was refused by the Director. The decision under challenge is contained in a letter dated 14 September 2015 in which the Director concluded that the requirement set out in section 10(3)(a) of LASPO is not met. Although other grounds were originally pursued, the claimant's case at the hearing has been put solely on the ground that this conclusion was wrong in law because failure to make representation available to the claimant for the inquest would be a breach of her rights under article 6 of the Convention. It is common ground between the parties that, if the court finds that there would be a breach of the claimant's article 6 rights, it follows that the Director's decision was unlawful. Conversely, if there would not be such a breach, the claimant's challenge to the decision must fail.

Article 6

Article 6 of the Convention provides as follows:

" Right to a fair trial

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. …

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court."

The claimant contends that failure to provide her with legal assistance for the inquest would be a breach of her right set out in article 6(3)(c) to be effectively defended by a lawyer in the determination of a criminal charge. The European Court of Human Rights has described the right guaranteed by article 6(3)(c) as "one of the fundamental features" of the right to a fair trial in criminal proceedings guaranteed by article 6(1): see Salduz v Turkey (2009) 49 EHRR 19, para 51.

At first sight, the claimant's contention faces two obvious objections. The first is that an inquest is not a criminal proceeding. The second objection is that, at least from the point of view of English criminal procedure, the claimant is not someone charged with a criminal offence. As mentioned, she was charged with an offence of arson but she has been acquitted of that offence.

The claimant's arguments

In her measured submissions on behalf of the claimant, Ms Stone answered these objections by pointing out, first of all, that the expressions "criminal charge" and "charged with a criminal offence" in article 6 have an autonomous meaning which does not depend on how the proceedings in question are characterised in domestic law. How these expressions should be interpreted in the context of article 6 has been considered by the European Court of Human Rights in a number of cases, the effect of which was summarised in the judgment of Lord Hope in Ambrose v Harris [2011] 1 WLR 2435, para 62, in the following passage:

"The correct starting point, when one is considering whether the person's Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6.1. The guidance as to when this occurs is well known. The test is whether the situation of the individual was substantially affected: Deweer v Belgium 2 EHRR 439, para 46; Eckle v Germany 5 EHRR 1, para 73. His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (Application No 16404/03) (unreported) given 19 February 2009, para 57. In Corigliano v Italy 5 EHRR 334, para 34 the court said that, whilst "charge" for the purposes of article 6.1 might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed an criminal offence, as it was put in Eckle's case 5 EHRR 1, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation. In Subinski v Slovenia (Application No 19611/04) (unreported) given 18 January 2007, paras 62–63 the court said that a substantive approach, rather than a formal approach, should be adopted. It should look behind the appearances and investigate the realities of the procedure...