Page 86 - When Things Go Wrong

5.15 We consider that these limitations are incompatible with a number of core
inquiry objectives: uncovering truth, ensuring accountability and reassuring
core participants that their views are being taken into account. It may also fail
to discharge the State’s obligation to carry out an effective investigation into
whether serious violations of Convention rights have occurred; an enhanced
investigation must enable effective involvement of next-of-kin. 235 We
therefore recommend that Rule 10(4) of the Inquiry Rules 2006 should be
amended to allow the legal representative of a core participant to ask
questions of a witness where Articles 2, 3 or 4 ECHR are engaged. The
chair should retain discretion to refuse (with reasons) a line of questioning
and to impose time limits on any questioning.

Publicly funded legal representation

5.16 In 1986 JUSTICE recommended that legal aid be made available to all
“properly interested persons” as the legislation then defined them, where the
then Secretary of the Legal Aid Committee thought fit, but in contemplation
of any death taking place within State control. 236 Public funding for legal
representation in inquests is still heavily circumscribed and only available
through the Exceptional Case Funding (ECF) scheme. ECF may be granted
only where it is required by Article 2 ECHR or where representation is in the
“wider public interest” 237 such that it “is likely to produce significant benefits
for a class of person, other than the applicant and members of the applicant’s
family”. 238

5.17 The current arrangements mean that legal representation at inquests is out of
reach for the vast majority of bereaved people. The Working Party appreciates
that the bulk of the 30,000 inquests opened each year are very short (sometimes
only an hour, often less) and frequently completed on paper. However, in the
class of complex cases concerning the Working Party, specialist legal

235 Al-Skeini and Others v. the United Kingdom (2011) 53 EHRR 18 [167].

236 JUSTICE Working Party Report, Coroners Courts in England and Wales (1986) at pp. 15-17.
237 Legal Aid Agency, ‘Inquests – Exceptional Cases Funding – Provider Pack’, 15 May 2020, p. 3.

238 Ibid.
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