By Stephanie Clark, a specialist military lawyer at Irwin Mitchell
Inquests are a vitally important process that help to provide answers to families and various other interested parties as to how a person dies along with providing recommendations to interested parties to hopefully prevent similar deaths happening again.
Before 12 January, 2022, if a bereaved family could not afford legal representation at an inquest, they might have considered applying for legal aid.
Generally, legal aid is difficult to obtain across all areas of law and it is especially hard to come by for families trying to get representation at an inquest.
In order for a family to get legal aid funding for an inquest, they would have to endure a two stage process where you would have to prove that your application had merits, as well as a thorough and overwhelming means testing process. Regardless of the merits of the case, if you exceeded the threshold on your earnings or savings, your application would be refused and you would have to pay for legal representation privately and has led to many families representing themselves at an inquest.
Thankfully changes have now come into force that have given bereaved families more opportunities to investigate the death of a loved one by making funding more accessible, but do the changes go far enough?
What are the changes?
The changes, from 12 January, 2022 onwards, means that in Article 2 Inquests families are no longer means tested and can get legal aid funding for the inquest. However, the position regarding means testing for legal aid remains in relation to other types of inquests.
What is an Article 2 Inquest?
Before an inquest takes place, the coroner will need to decide whether an ‘enhanced’ investigation should take place into the death of a citizen.
Article 2 Inquests stem from Article 2 of the European Convention on Human Rights, also known as our ‘right to life’. The government and its emanations therefore have an obligation to refrain from taking life but also an obligation to safeguard the lives of its citizens.
There are certain circumstances where an Article 2 Inquest must be held, normally when there is a non-natural or violent death that has occurred. It also covers incidents where the death has occurred in police custody, prison or during an arrest. This is because there are concerns that the state has a duty of care to protect that individual from death once they are detailed.
Where there are concerns that a government institution has failed to safeguard and protect the deceased against a threat or a risk then an Article 2 Inquest will also take place.
In these inquests legal aid funding will now be available.
What does this mean for Military inquests?
Military inquests do not necessarily always trigger an Article 2 Inquest despite being an arm of the government.
Military families will have to prove that the Ministry of Defence breached its substantive duty of care towards the deceased to trigger an Article 2 Inquest. In turn this might not always mean that families are entitled to legal aid funding and they will not find out if the investigation will be held as an Article 2 Inquest or not until the first procedural hearing at the coroner’s court known as a pre-inquest review hearing. The families have the right at this hearing to make submissions to the coroner if they feel an inquest should be held under Article 2.
The procedure and rules behind establishing an Article 2 inquest at a review hearing can be complex and are best suited to a solicitor and barrister specialising in the field. As a result of this process, families will often find themselves having to source private funding to get to this stage.
Changes are welcome but could go further
The changes are therefore welcomed as they will assist many people but they clearly do not go far enough. We would welcome the extension of legal aid so that the families of military personnel are automatically provided with funding to allow proper investigations into the deaths of their loved ones whether it is an Article 2 Inquest or not.
Find out more about Irwin Mitchell's expertise in supporting families through military inquests at our dedicated military inquests and fatal claims section.
This will help ensure more bereaved families have a voice and can meaningfully participate in the inquest process.