| LEGAL AID — Availability — Inquest — Application for funded representation in coroner’s court — Inquest into deaths of claimant’s mother and sister in railway accident Minister refusing claimant’s application for legal funding — Whether refusal unreasonable — Whether refusal breach of relative’s right under art 2 — Human Rights Act 1998, Sch 1, Pt I, art 2
R (Main) v Minister for Legal Aid [2007] EWCA Civ 1147
CA: Sir Igor Judge P, Carnwath and Toulson LJJ: 19 November 2007
In refusing an application for discretionary funding for full legal representation at an inquest into deaths following a rail accident, the Minister for Legal Aid had not acted irrationally in concluding that no significant wider public interest would be compromised, nor did the refusal constitute a breach of art 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
The Court of Appeal so held allowing the appeal of the Minister for Legal Aid, acting on behalf of the Lord Chancellor, from the order of Owen J on 2 April 2007 quashing the decision of the minister in a letter dated 11 October 2005 refusing the claim of the claimant, Tobias Main, for exceptional funding for full legal representation at the inquest into the deaths of his mother and sister following a railway accident.
CARNWATH LJ, giving the judgment of the court, said that guidance under s 23 of the Access to Justice Act 1999 indicated that legal aid funding for advocacy services at inquests was normally excluded. Where such funding was not authorised a claimant could be allowed Legal Help which could include the funding of a solicitor to act as a McKenzie friend. The claimant challenged the minister’s decision for two main reasons: first, that it was an irrational exercise of the minister’s discretion; secondly, that it was incompatible with art 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms and therefore unlawful under s 6 of the Human Rights Act 1998. The starting point was that the court needed to act with great caution before making a finding of irrationality about a discretionary spending decision. Funding would not be expected unless either there was a “significant wider public interest” in the family being represented, or funded representation was likely to be required to ensure an effective investigation under art 2. The judge’s view had been that Legal Help would inevitably result in a laborious process. That presupposed that sustained cross-examination was going to be necessary in order for the coroner properly to explore the relevant issues. In the court’s view it was possible to hold a different view without being irrational. The minister was entitled rationally to conclude that full legal representation of the family was not required in order for the coroner properly to investigate the relevant public safety issues and that there was insufficient public benefit from such representation to cause her in her discretion to authorise such expenditure. To conclude that art 2 required representation in the present case would go beyond any European or domestic precedent. The court recognised that a lack of a direct precedent was not necessarily determinative in a developing jurisdiction, and that was why it was necessary to look at the fundamental principles. The question was whether the coroner could reasonably be expected to carry out a proper investigation into the deaths of the deceased, including the wider safety aspects, without full legal representation of the family. The answer to that question was yes. An inquest was an inquisitorial and not an adversarial process. This was a case in which the actual facts appeared unlikely to be in dispute at all. As to the wider safety issues, there was no ground to suppose that the experts were likely to be evasive or wanting to cover matters up. It would be open to the family, through the Legal Help provided to them, to make submissions and identify particular matters which they wanted the coroner to explore. The important public interests did not also require that the family should be legally represented in the present case in order to meet the objectives of art 2. The judge’s approach risked imposing an unjustified burden on the funding system, unsupported by domestic or European law.
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Appearances: Nathalie Lieven QC ( Treasury Solicitor) for the Minister for Legal Aid; Michael Fordham QC (Messrs Christian Khan) for the claimant; Roger Eastman (Office of the Railway Regulator) for the Rail Safety and Standards Board, the first interested party; Clive Fletcher-Wood, solicitor (Burges Salmon LLP) for First Great Western Ltd, the second interested party.
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