Hemsworth, Re [2003] NIQB 5 (07 January 2003)
Ref KERF3840
IN THE HIGH COURT OF JUSTICE IN NORTHERN IRELAND
QUEEN'S BENCH DIVISION (JUDICIAL REVIEW)
________
IN THE MATTER OF AN APPLICATION BY COLETTE HEMSWORTH FOR JUDICIAL
REVIEW
________
KERR J
Introduction
- This is an application by Colette Hemsworth, the
widow of John Hemsworth deceased, for judicial review of the decision of the
Lord Chancellor not to grant funding for legal services rendered to her in
preparation for the inquest into his death.
Background
- It is alleged that on 6 July 1997 Mr Hemsworth was
assaulted by police officers at Malcolmson Street, Belfast. On 7 July 1997
he was admitted to the Royal Victoria Hospital and was found to have a crack
fracture on the right mandible. He was treated and discharged. He later
attended the dental department of the same hospital. Some 5 or 6 weeks
before his death Mr Hemsworth began to complain of headaches and a tingling
sensation in one arm.
- On 27 December Mr Hemsworth was out with friends
for a drink and complained of worsening headaches. He went to his wife's
house and collapsed there, possibly striking his head when he fell. He was
admitted to Belfast City Hospital at 1 am on 28 December and was found to
have a left sided weakness. He gave a history of having had a headache all
day but he had also been drinking all day on Christmas Day and Boxing Day. A
CT scan revealed a cerebral infarction in the distribution of the right
middle cerebral artery. He was transferred to the Neurology Unit of the
Royal Victoria Hospital but his condition deteriorated and he died on 1
January 1998. He was thirty-nine years old.
- On post mortem examination a major lesion of the
right side of the brain was found. After further examination of the brain
and carotid vessels it was concluded that the deceased had suffered a
complete thrombosis of his right internal carotid artery a few days before
his death and that this had caused a major infarct on the right side of his
brain that had in turn caused his death. Dr Derek Carson, the deputy state
pathologist who conducted the autopsy, concluded that it was not possible to
correlate the thrombosis which caused the infarction with any facial injury
suffered in July 1997.
- The applicant's solicitors, Flynn &
McGettrick, engaged Professor Derrick J Pounder to advise on the cause of
the deceased's death. He reported that the cause of the blood clot that had
produced the stroke was damage to the wall of the artery. This damage
pre-dated the formation of the blood clot. He advised that such damage could
occur as a result of direct trauma. This would require a significant impact
to the right side of the neck in the area immediately adjacent to the angle
of the jaw.
- Professor Pounder considered that the episode that
had occurred some 5 to 6 weeks before the deceased's death was a minor
transient stroke. Taking this and other pertinent factors into account he
expressed his opinion on the cause of the deceased's death thus: -
"Given that (a) the cause of death as stated arose directly
from damage to the right carotid artery and (b) such damage can arise only
as a consequence of either natural disease or trauma and (c) there is no
evidence of any causative natural disease following a very thorough
examination and (d) there is a history of trauma implicating the general
area of the artery damaged and (e) notwithstanding the delay between
initial trauma and the final death, which is a recognised but uncommon
occurrence, it is in my view highly likely that the trauma (ie the
alleged assault) was the sole direct underlying cause of
death".
- In 16 December 1999 Flynn & McGettrick wrote
to Her Majesty's Coroner for Greater Belfast, John L Leckey, enclosing the
report of Professor Pounder and requesting that an inquest be held. Mr
Leckey replied on 20 December explaining that, having read the post mortem
report of Dr Carson and that of Dr Mirakhur (the consultant neuropathologist
who had carried out the examination of the deceased's brain) he had decided
that it was not necessary to hold an inquest and arranged for the death to
be registered. As a result he had no power to hold an inquest unless ordered
to do so by the Attorney-General.
- On 20 January 2000 Flynn & McGettrick wrote to
the Attorney-General's legal adviser, Mr Kevin McGinty, asking that the
Attorney direct an inquest under section 14 of the Coroners Act (Northern
Ireland) 1959. On 2 February 2000 Mr McGinty replied informing the
applicant's solicitors that the Attorney-General had decided to exercise his
powers under this provision to direct the coroner to hold the inquest.
- Because legal aid is not generally available for
inquests, Flynn & McGettrick applied on the applicant's behalf to the
Northern Ireland Human Rights Commission on 25 July 2000 under section 70 of
the Northern Ireland Act 1998 for funding of legal representation at the
inquest. This was refused because of the existence of the Lord Chancellor's
extra statutory scheme for the grant of funding for legal representation at
inquests.
- Accordingly on 1 September 2000 the applicant's
solicitors wrote to the Lord Chancellor asking that consideration be given
to granting financial assistance to the deceased's family for legal
representation at the inquest. A letter in similar terms was sent on the
same date to Mr Alan Hunter, acting director of legal aid in the Northern
Ireland Court Service. On 18 September Mr Hunter replied. He explained that
the Lord Chancellor had set up as an interim measure an extra-statutory, ex
gratia scheme to enable him to grant funding for legal representation at
inquests in exceptional cases. He asked for more details of Mr Hemsworth
case and indicated that ministers would be interested in why the case was
considered to be exceptional. In particular, some of the information needed
would include: -
"(a) the facts of the case;
(b) an indication of the complexity of the issues;
(c) the relationship of the applicant to the
deceased;
(d) why you think there is a need for representation to enable
the applicant to take part effectively"
An indication of the anticipated cost of representing the applicant was
also requested. The applicant's solicitors were informed that funding would
only be provided from the extra-statutory scheme for "a specific amount of
money to cover representation at the inquest only".
- On 9 October 2000 the coroner wrote to Flynn
& McGettrick enclosing a report that he had obtained from Professor
Helen Whitewell, a consultant pathologist to the Home Office. Her
conclusions included the following observations: -
"From the histology alone it is difficult, indeed impossible,
to accurately age the dissection or damage to the right carotid artery.
There are no such changes involving the left carotid artery which implies
that at least at some point in time the right is likely to have been
injured. Clearly there is a history of trauma to that region and this
could have precipitated the arterial changes and the, albeit delayed,
cerebral infarction. It is also recognised, however, that in a few
instances minor trauma can precipitate dissection and one would need to
exclude any other possible candidate in terms of injury to the deceased's
face. I can, however, not see any evidence of such from the medical notes
nor the statements.
In summary, my opinion, despite the rime delay between the
fatal cerebral infarct and the injury received, it is likely that they are
linked in terms of causation."
- On 13 October 2000 the applicant's solicitors
wrote to Mr Hunter asking to be provided with a copy of the criteria that
the Lord Chancellor intended to apply to applications such as they had made
on behalf of Mrs Hemsworth when such criteria were published. On 27 March
2001 Mr Hunter replied, indicating that the Lord Chancellor had published
the criteria on that date. He stated that the Lord Chancellor would consider
each application for funding on its merits and would also have regard to the
following factors: -
"(a) whether the issues raised in the application fall outside
the scope of a coroner's inquest;
(b) whether the applicant would qualify financially for full
civil legal aid in other circumstances;
(c) whether an effective investigation of the death by the
state is needed and whether the inquest is the only way to conduct
it;
(d) whether the applicant has a sufficiently close
relationship to the deceased to warrant funding;
(e) whether an alternative to public funding is
available;
(f) whether the applicant needs representation in order to
participate effectively in the inquest – for example, because there are
unusually complex questions of law or fact, or evidential difficulties, or
because of the level of representation of others who have an interest in
or are involved in the inquest;
(g) whether there is a significant wider public interest in
representation being provided;
(h) the views of the coroner, if expressed; and
(i) any other matters which appear to be relevant to the
individual circumstances of the case."
- On 21 May 2001 Flynn & McGettrick wrote to
the legal aid division of the Northern Ireland Court Service enclosing an
application by Mrs Hemsworth to the Lord Chancellor for legal representation
funding at the inquest into the death of her husband. This had been prepared
by counsel and it addressed each of the criteria outlined in the letter of
27 March 2001.
- On 23 May 2001 the coroner wrote to the
applicant's solicitors informing them of the holding of a preliminary
hearing in relation to a number of inquests to discuss the implications of
the decisions of ECtHR in the related cases of Jordan v United Kingdom;
McKerr v United Kingdom; Kelly & others v United Kingdom and
Shanaghan v United Kingdom.
- The legal aid division of the Northern Ireland
Court Service replied to Flynn & McGettrick's letter of 21 May 2001 on
25 May 2001. The letter asked the solicitors to address a number of
outstanding issues including the proposed date and likely duration of the
inquest and detailed costings on the representation sought. Flynn &
McGettrick replied on 31 May 2001. On the same date they stated that an
application for judicial review would be made if a decision on the
application for funding was not made by the following day. No such decision
having been made, an application for leave to apply for judicial review was
made on 5 June 2001. This challenged the Lord Chancellor's avowed refusal to
reach a decision on the question of funding for the applicant's legal
representation at the inquest.
- By a letter faxed to the applicant's solicitors'
office at 7.05 pm on 5 June 2001 the legal aid division of the Court Service
informed them that the Lord Chancellor had agreed to the application for
funding from the extra-statutory ex gratia scheme for representation at the
inquest into the death of Mr Hemsworth. The letter also informed the
applicants' solicitors that the Court Service had been authorised to pay a
certain specified maximum sum which was to be devoted solely to the costs of
Flynn & McGettrick and counsel incurred in representing the applicant in
relation to the preliminary hearing. The payment was to cover only those
costs incurred after 4 June 2001.
- The leave hearing of the judicial review
application lodged on 5 June 2001 was due to be heard on 6 June but was
adjourned after the letter from the Court Service of 5 June was received. On
11 June 2001 the applicants' solicitors wrote to the Court Service seeking
clarification of certain matters arising from the letter of 5 June. In
particular they asked that work undertaken on behalf of the applicant before
4 June would be funded. In a letter from Mr D P Andrews of the legal aid
division of the Court Service of 12 June 2001 he rejected the request for
funding for work undertaken before 4 June, stating,
"Funding from the extra-statutory scheme is not available
retrospectively as work undertaken before a grant is approved could
attract legal aid under the legal advice and assistance scheme. In my
letter of 5 June I indicated that the grant covered work, up to the
financial ceiling, commenced on or after 4 June 2001. The extra-statutory
scheme provides funding for representation only."
The affidavit evidence
- In light of the indication from the Court
Service that the work undertaken before 4 June 2001 would not be funded
under the scheme, the application for leave to apply for judicial review
proceeded, albeit with a different focus. In a second affidavit filed in
support of Mrs Hemsworth's application Brendan Blaney, a partner in the firm
of Flynn & McGettrick, challenged the assertion that Mr Andrews had made
about the availability of the legal aid to cover work undertaken before the
extra-statutory scheme came into play. He set out his challenge to this
claim in the following paragraphs of his affidavit: -
"7. Under the terms of the Legal Aid, Advice and Assistance
(Northern Ireland) Order 1981 clients are only entitled to receive
initially two hours of advice and assistance not exceeding the sum of £88
[The Green Form scheme]. The two hours only cover the preliminary stages
of work on each case such as the initial consultation with your client.
The sending and receiving of correspondences. Our initial two hours work
on this file was covered by the Green Form scheme.
8. Further extension of time for preliminary advice and
assistance may be sought from the Legal Aid department by way of a Green
Form extension requesting authority to provide your client an additional
hour or two hours of advice and assistance. It is at the discretion of the
Legal Aid department whether the authority is granted.
9. It is my experience in relation to the operation of this
scheme and in particular in relation to the requests for extensions of
time under the Green Form scheme that requests are not granted to the
extent required to cover the work carried out on a file. In my experience
it can take as much time negotiating with the Legal Aid department for an
extension of time as the time eventually allowed and it is in my
experience a pointless exercise to pursue extensions of time under the
Green Form scheme as it is not cost effective."
Mr Blaney went on to assert that civil legal aid was not available for
preparatory work carried out for inquests and much of the work undertaken by
his firm before 4 June 2001 would not in any event be covered. In paragraph
10 of his affidavit he set out a number of items of work that had been
carried out on behalf of Mrs Hemsworth which, he said, would not be covered
by the Green Form scheme.
- On 15 June 2001 Flynn & McGettrick wrote
again to Mr Andrews of the Court Service seeking further clarification of a
number of points arising from the letter of 12 June. In his reply dated 18
June 2001 Mr confirmed that the Lord Chancellor had approved funding for
legal representation at the inquest but pointed out that before he could
consider the amount of funding that would be approved, the Lord Chancellor
would require a breakdown of costs for preparation and representation at the
inquest.
- An application for legal aid to pursue a civil
claim for damages against the Chief Constable on Mrs Hemsworth's behalf had
been lodged on 15 December 1998. On 27 September 1999 Flynn & McGettrick
were informed that this had been refused. On 16 October 1999 an appeal was
lodged against the refusal.
- In an effort to discover what funding might be
available from the legal aid fund for the inquest and the preparatory work
Miss Jennifer McCann, a law clerk in Flynn & McGettrick contacted the
Legal Aid department of the Law Society on 21 June 2001. She spoke to Miss
Ashe of that department and on 25 June wrote to Miss Drusilla Hawthorne, the
director of legal services in the legal aid department, asking that she
particularise which aspects of the applicant's case would receive funding
from the department; what limitations would be attached to funding and what
work that had already been carried out would not be covered by legal aid.
- Miss Hawthorne replied on 26 June. Her letter
contained the following passages: -
"In relation to your request for information in relation to
any potential funding from the Legal Aid department, I can confirm that in
general terms the position is as follows.
Provided that a person is financially eligible, he/she may
obtain oral or written advice and assistance under the Green Form Scheme
in relation to the application of Northern Ireland law to any particular
circumstances which have arisen and certain preparatory steps that any
person might take regarding those circumstances which, in this case, would
presumably be in relation to the holding of an inquest.
There is no fixed maximum higher limit in respect of
extensions under the Green Form Scheme.
I enclose for your information and convenience a copy of the
General Authority dated June 1992 which is still in force and which
confirms certain disbursements covered as extensions under the Green Form
Scheme without the necessity of obtaining prior written
authority.
Other extensions sought require prior written authority and I
can confirm that the Legal Aid department in considering each and every
request received has regard to the appropriate Legal Aid legislation,
including article 4 of the 1981 Legal Aid, Advice and Assistance (Northern
Ireland) Order. The outcome entirely depends on the individual
circumstances in each case. Such extensions may include the obtaining of
experts reports such as a pathologist's report if the circumstances
warrant it.
As regards the instruction of counsel it is possible that
counsel's opinion may be authorised in certain circumstances where
difficult legal issues arise which require preliminary advices from
counsel and in particular where civil legal aid is not
available.
Any request for an extension under the Scheme receives due
consideration.
The current Green Form Scheme does not cover representation at
any hearing and civil legal aid is not yet available for such matters to
instruct a solicitor or counsel to participate in the inquest procedure.
However, it is possible in certain circumstances in the event that there
is a related civil action for the solicitor acting in that matter to
attend the inquest on a 'watching brief' basis and this aspect of the work
carried out would be covered under the existing certificate, although this
would not extend to cover the solicitor's active participation in the
Inquest procedure."
- In an affidavit filed on behalf of the
respondent Miss Hawthorne pointed out that no application for Green Form
assistance had been made by Flynn & McGettrick in relation to any of the
matters which Mr Blaney had claimed could not be legally aided. As a matter
of principle, each of the items enumerated in his affidavit was eligible for
the grant of legal aid under the Green Form scheme, she claimed. She also
challenged his assertion that it was not cost effective to make application
for extensions to the Green Form scheme. Of 4542 applications for an
extension made in the year 1 April 2000 to 31 March 2001 3422 were
successful and a further 270 fell within the Law Society's general authority
to grant legal aid and therefore no application for an extension was
necessary in those cases.
- In the affidavit referred to in paragraph 18
above Mr Blaney had claimed that Jennifer McCann had confirmed with Miss
Ashe that the contents of paragraphs 9 and 10 of his affidavit were
accurate. This was disputed by Miss Ashe in an affidavit filed on behalf of
the respondent. She stated that the only matter that she discussed with Miss
McCann was whether an extension of the Green Form scheme would be granted
for the obtaining of a pathologist's report. She accepted that she had told
Miss McCann that she was unaware of any case where authority to obtain a
report such as a pathologist's report had been granted. Miss McCann made an
affidavit reiterating the claim made by Mr Blaney that she had been told by
Miss Ashe that the contents of paragraphs 9 and 10 of Mr Blaney's affidavit
were accurate and exhibiting a contemporaneous note which, she said,
verified that claim. This was disputed by Miss Ashe in a second affidavit.
Miss McCann repeated her claim in two further affidavits.
- In his affidavit Mr Hunter stated that the extra
statutory scheme for funding representation at inquests was aimed at
exceptional cases. The considerable expense that such cases may involve had
to be balanced against the various spending obligations that he state had to
meet. Mr Hunter confirmed that the applicant's application for retrospective
funding in respect of the work undertaken by the applicant's legal advisers
before 5 June 2001 had been considered by the Lord Chancellor in light of
the representations made by Flynn & McGettrick but that it had been
concluded that it would not be appropriate to provide such funding.
- Mr Hunter also dealt with the mechanics by which
funding would be provided in the following paragraph of his affidavit: -
"4 (iv) Funding in respect of the full inquest has been
approved in principle and this was made clear in the Court Service letter
to the applicant's solicitor of 12 June 2001. However, in the absence of
further information in respect of the inquest proper it is necessarily the
case the respondent cannot be specific about the maximum amount of funding
that can be authorised. The respondent, before arriving at any view as to
this amount will need to know the date and probable duration of the
inquest, the level of representation proposed by the applicant and will
need to be given detailed costings of the representation sought and
detailed information about the representation of other parties at the
inquest. It is appreciated that it may not be practicable to provide all
of this information at this stage. Issues concerning the duration of the
inquest will no doubt depend on the number and range of witnesses to be
called by the coroner and the coroner may not yet be in a position to
provide information about this. However, it is not reasonable to expect
that the respondent, who is under a duty to obtain value for money in
relation to the making of grants from public funds, should commit himself
in advance to a particular level of funding in ignorance of material
facts. Once the necessary information is available the respondent will in
the same way as has been done in relation to the preliminary hearing,
decide upon a maximum figure of funding."
- Mr Hunter also explained (in paragraph 4 (vi) of
his affidavit) that although the normal approach would be that funding be
provided on a prospective basis, the respondent would be prepared to
consider exceptional cases where there are strong reasons for allowing a
measure of retrospective funding. The present case was one in point. Some
work had been undertaken before the scheme came into existence. In deciding
whether to allow retrospective funding the Lord Chancellor will take into
account whether an applicant had exhausted all possibilities of funding from
an alternative source.
- In a further affidavit, Mr Blaney was critical
of this approach set out by Mr Hunter in paragraph 4 (iv) quoted above. He
suggested that the information that Mr Hunter had indicated would have to be
provided before the amount of funding would be fixed was not known to the
applicant and could not be discovered until various preliminary matters had
been dealt with such as the furnishing of a list of witnesses and
pre-Inquest disclosure. He suggested that the applicant could not carry out
preliminary work for the inquest unless he was able to provide the
information sought by Mr Hunter but that it did not lie within her power to
furnish it.
- In reply to Mr Blaney's affidavit Mr Hunter
filed a further affidavit in which he explained that the costings necessary
before the amount of funding can be determined may take the form of
estimates. These can subsequently be revised on further application.
The case for the applicant
- For the applicant Mr Barry MacDonald QC argued
that the net effect of the Lord Chancellor's approach was that the applicant
would not receive funding for the considerable amount of preparatory work
that had been undertaken before 4 June 2001. That approach was, he claimed,
incompatible with the applicant's rights under article 2 of the European
Convention on Human Rights. Moreover, until the applicant was aware of the
witnesses to be called by the coroner and had obtained pre-inquest
disclosure it was impossible to provide the estimate of costs that Mr Hunter
had insisted was a prerequisite to funding.
- It was also submitted that the extra statutory
scheme put the applicant at a conspicuous disadvantage, especially in
relation to other participants in the inquest such as the police. The Chief
Constable and the individual police officers will be represented and all the
preparatory work necessary to allow them to fully participate in as
effective a manner as is possible will be underwritten by public funds.
The case for the respondent
- For the respondent Mr Maguire explained that the
impetus to make provision for the funding of legal representation at
inquests derived from a number of factors. Not the least of these was the
reform of the legal aid scheme itself. It is intended to provide the Lord
Chancellor with a statutory power to make this available in exceptional and
appropriate cases. The extra statutory scheme is a precursor of this.
- Mr Maguire submitted that the scheme was not
required to mimic existing public funding nor follow any particular model.
The Lord Chancellor was entitled to devise his own scheme. He was entitled
to jettison "old thinking" about open ended funding such as is provided
under some current legal provision. The Lord Chancellor's approach –
although novel – was perfectly rational.
The statutory provisions relating to the Green Form scheme
- Article 3 of the Legal Aid, Advice and
Assistance (Northern Ireland) Order 1981 provides that legal advice and
assistance shall, subject to the provisions of Part II of the Order, be
available for any person whose means come within certain specified limits.
- So far as is material Article 4 of the 1981
Order provides: -
"4. –(1) Subject to paragraph (2) and Article 5 and to
any prescribed exceptions and conditions,[which are not relevant for
present purposes] Article 3 applies to any oral or written advice given by
a solicitor or, if and so far as may be necessary, counsel-
(a) on the application of Northern Ireland law to any
particular circumstances which have arisen in relation to the person
seeking the advice; and
(b) as to any steps which that person might appropriately
take (whether by way of settling any claim, bringing or defending any
proceedings, making an agreement, will or other instrument or
transaction, obtaining further legal or other advice or assistance, or
otherwise) having regard to the application of Northern Ireland law to
those circumstances;
and applies to any assistance given by a solicitor or, if and
so far as may be necessary, by counsel to any person in taking any such
steps as are mentioned in sub-paragraph (b), whether the assistance is
given by taking any such steps on his behalf or by assisting him in taking
them on his own behalf"
- These provisions are sufficiently wide, in my
opinion, to comprehend all of the preparatory work undertaken on behalf of
the applicant in the present case before the application for extra statutory
funding was made. This is clearly also the view of the director of legal
services, Miss Hawthorne. The dispute as to whether applications for Green
Form assistance are transacted as efficiently as they ought to be I find
unnecessary to resolve. I am of the firm opinion that it was intended by the
legislature that steps such as were taken by the applicant's legal advisers
in this case should be covered by these provisions. I am equally clearly of
the view that the Lord Chancellor was entitled to have regard to those
provisions and the intention of the legislature in devising the extra
statutory scheme. Any deficiency in the implementation of the provisions, if
it is the fault of the Legal Aid department, (as to which, I should make
clear, I am far from persuaded) should be the subject of challenge to that
department, not the Lord Chancellor.
- In these circumstances it is unnecessary to
resolve the conflict between Miss McCann and Miss Ashe as to what was said
about the contents of paragraphs 9 and 10 of Mr Blaney's affidavit. Even if
it were the case that Miss Ashe believed that the matters there enumerated
were not covered by the Green Form scheme that view would clearly be
erroneous and is not shared by Miss Hawthorne. Had it been necessary to
reach a conclusion on this dispute it would not have been possible to
resolve it in the applicant's favour. Where there is a conflict of evidence
onus remains on the party asserting - Re Curl – Supperstone and
Goudie Judicial Review (2nd ed, 1997) p 17.8. I could not have been
satisfied that Miss McCann's version of this exchange was to be preferred to
that of Miss Ashe.
Article 2 of ECHR
- Article 2 of the Convention provides: -
"1. Everyone's right to life shall be protected by law. No one
shall be deprived of his life intentionally save in the execution of a
sentence of a court following his conviction of a crime for which this
penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this article when it results from the use of force which
is no more than absolutely necessary:
a. in defence of any person from unlawful violence;
b. in order to effect a lawful arrest or to prevent the
escape of a person lawfully detained;
c. in action lawfully taken for the purpose of quelling a
riot or insurrection."
- In Jordan v United Kingdom [2001] ECHR
24746 ECtHR considered the procedural safeguards that were required to
underpin the substantive right guaranteed by article 2. In paragraph 105 the
court described the nature of those procedural safeguards thus: -
"105. The obligation to protect the right to life under
Article 2 of the Convention, read in conjunction with the State's general
duty under Article 1 of the Convention to "secure to everyone within [its]
jurisdiction the rights and freedoms defined in [the] Convention", also
requires by implication that there should be some form of effective
official investigation when individuals have been killed as a result of
the use of force (see, mutatis mutandis, the McCann judgment
cited above, p 49, para 161, and the Kaya v Turkey [1998] ECHR 22729/93, judgment of 19 February 1998, Reports of Judgments and
Decisions 1998-I, p 324, para 86 of the latter reports). The essential
purpose of such investigation is to secure the effective implementation of
the domestic laws which protect the right to life and, in those cases
involving State agents or bodies, to ensure their accountability for
deaths occurring under their responsibility. What form of investigation
will achieve those purposes may vary in different circumstances. However,
whatever mode is employed, the authorities must act of their own motion,
once the matter has come to their attention. They cannot leave it to the
initiative of the next of kin either to lodge a formal complaint or to
take responsibility for the conduct of any investigative procedures (see,
for example, mutatis mutandis, Ilhan v Turkey [GC] [2000] ECHR 22277/93, ECHR 2000-VII, para 63)."
- The participation of the next of kin in the
investigation of the circumstances of the death of the deceased was deemed
to be essential. In paragraph 109 the court said: -
"109. … In all cases … the next-of-kin of the victim must be
involved in the procedure to the extent necessary to safeguard his or her
legitimate interests (see Güleç v Turkey, cited above, p 1733, para
82, where the father of the victim was not informed of the decisions not
to prosecute; Ögur v Turkey, cited above, para 92, where the family
of the victim had no access to the investigation and court documents;
Gül v Turkey judgment."
The court also found that the absence of legal aid for the next of kin at
the inquest had prejudiced the applicant's ability to participate in the
inquest – see paragraph 142.
- The following principles relevant to the present
case can be derived from these passages in Jordan: -
1. There must be an effective official investigation when
individuals have been killed as a result of the use of force.
2. The essential purpose of such investigation is to secure
the effective implementation of the domestic laws which protect the right
to life and, in those cases involving State agents or bodies, to ensure
their accountability for deaths occurring under their
responsibility.
3. The next-of-kin of the victim must be involved in the
procedure to the extent necessary to safeguard her legitimate
interests
4. Where necessary to allow the required level of
participation by the next of kin legal aid should be provided.
- It is no longer in issue that funding of legal
representation for the applicant at the inquest into the death of her
husband should be provided. The sole remaining issue is whether the
provision of funding as proposed by the Lord Chancellor meets the
requirements of article 2 and is generally reasonable. The applicant has
accepted that an unlimited budget for legal aid cannot be insisted upon. As
ECtHR has said, in the context of article 6 (3) (c) of the Convention,
(which guarantees to an individual the right … if he has not sufficient
means to pay for legal assistance, to be given it free when the interests of
justice so require) the essence of the right to free legal assistance is
that the assistance should be practical and effective - Artico v Italy
[1980] 3EHRR 1, paragraph 33.
- In this case the reasonable cost of the
applicant's legal representation at the inquest will be met. All that is
necessary to secure this is that the applicant's solicitors should provide
an estimate of what those costs are likely to be. I do not accept that this
is impossible because pre-inquest disclosure has not been made or because
the coroner has not provided a list of the witnesses who are due to be
heard. These factors may make it impossible to estimate precisely the
level of costs but it is clear from Mr Hunter's affidavit that a precise
estimate is not required and that a review of the figures allowed based on
the estimate made will be considered.
- In M v United Kingdom [1983] 6 EHRR 345
the Commission recognised that financial restraints may be necessary to
ensure the most cost effective use of funds available for legal aid. The
measures imposed by the Lord Chancellor in relation to the provision of
estimates of the amount of costs for the representation of the next of kin
and the refusal to extend the extra statutory scheme to areas that can be
covered by the Green Form scheme are clearly designed to ensure that the
scheme is cost effective. In my judgment these measures are both reasonable
and proportionate to achieve that entirely proper aim.
- I do not accept that the applicant will be
placed at a disadvantage vis-à-vis other participants in the inquest
by availing of the extra statutory scheme. As Lord Hope of Craighead said in
McLean v Buchanan [2001] 1 WLR 2425, 2439 (in the context of a claim
that a limitation on the availability of legal aid would create an
inequality of arms between a defendant and the prosecuting authorities) it
is necessary to demonstrate that the other participants "will enjoy some
particular advantage that is not available to the defence or that would
otherwise be unfair". I do not consider that this has been demonstrated. The
combined effects of the Green Form scheme and the extra statutory scheme
should be sufficient to ensure that the applicant is provided with the
services of solicitors and counsel of equal calibre to those who will
represent other parties. There is no reason that preparatory work that is
properly undertaken will not be adequately remunerated under one or other or
both schemes.
- In judging the reasonableness of the scheme it
is to be remembered that ECtHR has recognised that contracting states must
be accorded a margin of appreciation in choosing the means by which a right
arising under the Convention is to be secured. An example of this principle
is Imbrioscia v Switzerland [1993] 17 EHRR 441, 455 paragraph 38
where the court said that article 6 (3) (c) leaves to the contracting states
the choice of the means of ensuring that the right guaranteed by that
provision is secured in its judicial system.
Conclusions
- I have concluded that none of the grounds of
challenge has been made out and the application for judicial review must
therefore be dismissed.
