Page 90 - When Things Go Wrong

Prisons: In 2017, the Ministry of Justice spent £4.2million on Prison and
Probation Service legal representation at prison inquests, while granting just
£92k in legal aid to bereaved.

Julie’s Mental Health Foundation, BBC Radio 4 File on 4; INQUEST

5.23 The imbalance exposed by these figures serves to preclude effective
participation and may in consequence impede the ability of an inquest to
discharge its function as a full and fearless investigation. The Lord
Chancellor should amend the Exceptional Funding Guidance (Inquests)
so as to provide non-means tested public funding for legal representation
for families where the State has agreed to provide separate representation
for one or more interested persons. 251

Warning letters

5.24 Our terms of reference explicitly prioritise the needs and experiences of
bereaved people and survivors. However, it is axiomatic that inquires must
extend fairness to all participants, including to those who may be criticised in
any report arising from the process. The formal mechanism for giving notice
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to those who may be subject to criticism is a “representation process”,
encompassing “Maxwellisation” or “Salmon Letters” in non-statutory
inquiries and “warning letters” in statutory inquiries.

5.25 We recognise the importance of this process. The Stephen Lawrence
Independent Review has been cited as an example of an investigation in which
the final report was substantially amended in light of new information revealed
by Maxwellisation. 253 However, a number of our consultees voiced concerns

251 Amendment of the Guidance would bring a collateral benefit. In our experience, the availability of
public funding for advocacy in Article 2 ECHR inquests invariably leads to extensive argument as to
whether Article 2 is engaged (and subsequent judicial review challenges). Adoption of our
recommendation would address this source of delay and expense.
252 Terminology from Andrew Green QC, Tony Peto QC, Pushpinder Saini QC, Fraser Campbell and
Ajay Ratan, ‘A Review of “Maxwellisation”’, 2016, para 2.
253 Mark Ellison QC, The Stephen Lawrence Independent Review: Possible corruption and role of
undercover policing in the Stephen Lawrence case, Volume One (HC 2014, 1038-1), pp. 154-6.

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