I have rarely been at an Inquest that was not adversarial.

In all of my years of practice, a constant theme has been the injustice faced by family members at Coroners’ Inquests. I have attended many such inquests, normally in the context of Clinical Negligence cases. The health professionals would always be represented by experienced lawyers. Those of us who represented families would normally do so on a pro bono basis. They can be complex, technically difficult and come at a difficult time.

I have rarely been at an Inquest that was not adversarial. This is entirely understandable. Those representing professional people owe a duty to them to ensure that no stone is left unturned when their reputation or even career might be at stake.  It is inevitable that such hearings will be adversarial. But there is an inevitable imbalance. The NHS has considerable resources to fund legal representation. The families have little or none.  

Which brings us to the current debate about extending the scope of legal aid to cover a right of representation for families, particularly in cases involving the state. On 24th February 2022 the Judicial Review and Courts Bill Committee in the House of Lords discussed this very topic. They were considering an amendment to the Bill that would extent legal aid in these cases.

Speaking for the Government was Lord Wolfson of Tredegar.  His Lordship acknowledged that the families should be at the heart of an inquest. He then went on to argue that it would be counter productive to allow legal aid for families –

“There is a risk that having additional lawyers at an inquest will not provide an overall improvement for the bereaved and could have the unintended consequence of turning an inquisitorial event into a significantly more complex defensive case, which could, in the majority of cases, prolong the distress of a bereaved family”

The sad fact is that most inquests are defensive. 

The sad fact is that most inquests are defensive. They do not become less adversarial just because one party is represented, and the other is not. It certainly narrows the opportunity for scrutiny of evidence, but that rather defeats the point of what is meant to be an inquisitorial process.

So the plan is to have fewer lawyers lined up against the unrepresented families. 

Lord Wolfson’s suggestions for addressing any imbalance are discouraging. He referred to a protocol that – “ensures that where the state is represented, it will consider the number of lawyers instructed so as to support an inquisitorial approach” So the plan is to have fewer lawyers lined up against the unrepresented families. He then referred to Exceptional Case Public Funding which is far from straightforward!

https://www.theyworkforyou.com/lords/?id=2022-02-24b.430.1

In fact, it looks like the government is doing all it can to ensure powerful representation for … the government, whilst presenting every argument available to ensure that families do not have the same. If the process is not adversarial or defensive why is public money spent on lawyers for one and not the other. We don’t call them ‘parties’ but we all know that this is what they are.