Minister for Legal Aid v Main, R (on the application of)

A decision whether to provide exceptional public funding for advocacy at an inquest is a discretionary spending decision. A court should therefore exercise particular caution before holding it irrational.

Under the guidance made under the Access to Justice Act 1999, significant wider public interest requires a significant increase in the potential public benefit from the family’s representation, not simply an important subject for the inquest. The coroner’s and Legal Services Commission’s views are material but not determinative.

Article 2 requires an effective investigation where state responsibility may be engaged. Its procedural requirements are fact-specific. In an inquisitorial inquest into deaths primarily caused by a private person, funded advocacy is not required where the coroner can investigate the relevant safety issues effectively and the family can identify matters through Legal Help.

Following a rail accident at Ufton Nervet, in which the claimant’s mother and sister died, the Minister for Legal Aid refused a request for public funding of legal representation for the claimant at the coroner’s inquest. The coroner and the Legal Services Commission had supported funding. The Minister instead authorised Legal Help.

Owen J, in the Administrative Court, quashed the refusal. He held that the Minister had acted irrationally under the significant wider public interest criterion and had failed to meet the requirements of Article 2.

The Minister appealed. Funding was provided pending the appeal so that the inquest could proceed, rendering the individual dispute academic. The Court of Appeal nevertheless decided the principles governing exceptional funding for representation at an inquest.

1. Appeal allowed. The judge’s order quashing the Minister’s refusal was set aside.

2. The decision concerned a discretionary allocation of public expenditure. A court should be especially slow to find such a decision irrational. A departure from published guidance may be unlawful, but the guidance did not require funding merely because the inquest concerned important rail-safety questions.

3. The significant wider public interest criterion required the Minister to assess whether representation of the family would significantly increase the inquest’s potential to produce real benefits for people other than the claimant. The independent investigations, the issues likely to arise before the coroner, and the availability of Legal Help were all relevant. The views of the coroner and the Legal Services Commission were material but did not determine the Minister’s decision.

4. It was rational to conclude that full representation was not needed for an effective investigation. The safety questions had been identified in an independent report. The family could, with Legal Help, make submissions and identify matters for the coroner to explore. The inquest was inquisitorial, and the court found no proper basis to assume that the relevant experts would evade the issues or conceal material.

5. Article 2 imposes substantive and procedural duties where a death may engage state responsibility, as explained in (2005) 41 EHRR 20. The precise procedural duty depends on the facts, including the degree of possible state involvement. Here the immediate cause was the criminal conduct of a private individual. There was no suspected serious wrongdoing by state agents, and Article 2 did not require funded advocacy for the family. The court did not decide whether Article 2 required an inquest at all in light of the other investigations.

1. Court of Appeal (Civil Division) Allowed the Minister’s appeal and set aside the order of Owen J: [2007] EWCA Civ 1147.

2. Administrative Court Owen J allowed the judicial-review claim and quashed the refusal of exceptional funding. The lower-court citation was not stated in the judgment.