Jones, R (on the application of) v Legal Services Commission

Article 2 may require an effective official investigation into a death even where the state was not responsible for the death. The adequacy of the investigation is assessed by reference to the steps reasonably available, not simply by whether a prosecution produced a conviction. Exceptional funding for advocacy at an inquest requires exceptional factual or legal complexity making representation necessary for an effective investigation and appropriate participation by the next of kin. The coroner’s views are material but not determinative. A refusal of funding is not irrational where the issues fall within the coroner’s inquisitorial remit, there is no complex expert evidence, and written legal submissions and preparatory assistance remain available.

The claimant sought judicial review of the Legal Services Commission’s refusal to recommend exceptional funding for advocacy at an inquest into the unlawful killing of his son. The police investigation had led to a prosecution, but the defendant was acquitted after a submission of no case to answer, and the perpetrators had not been brought to justice.

The coroner considered representation essential in the interests of justice and had treated several individuals as interested parties. The Commission accepted the importance of the inquest but concluded that representation was not necessary for an effective investigation. The central issues were whether Article 2 applied, the scope of the coroner’s remaining investigative role, and whether oral advocacy was required.

1. The application for judicial review was dismissed. The Commission’s refusal of exceptional funding was not irrational.

2. Article 2 applied notwithstanding the absence of alleged state responsibility for the death. The investigative duty was not necessarily discharged merely because there had been a police investigation or prosecution, and the absence of a conviction did not itself establish a failure. On the material before the court, the investigation was inadequate and the coroner therefore had a role under Article 2.

3. The inquest remained subject to the inquisitorial nature and statutory limits of the coroner’s jurisdiction, including Coroners Act section 11(5), the Coroners Rules, and R v Her Majesty’s Coroner for North Humberside ex parte Jamieson [1995] QB 1. The coroner should not ordinarily investigate which named individual was responsible, although an inquest might disclose circumstances warranting an adjournment and referral to prosecuting authorities.

4. The governing funding question was whether exceptional factual or legal complexity made oral representation necessary to secure an effective investigation with appropriate participation by the next of kin. The coroner’s views had to be considered but were not determinative. The decision remained one for the Commission.

5. There was no exceptional factual or legal complexity and no indication of complex expert evidence. The proposed legal submissions were matters within the coroner’s remit and could alternatively be made in writing under the Legal Help scheme. The Commission was therefore entitled to conclude that oral advocacy was unnecessary.

This was a first-instance judicial review. Permission was granted by Calvert Smith J on 19 June 2007. The Administrative Court dismissed the claim.