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

Where exceptional public funding is sought for representation at an inquest, the decision-maker must address whether representation itself may produce a significant wider public benefit. It is insufficient to rely on investigations by bodies whose interests may diverge from those of the wider public.

For funding based on Article 2, the question is whether representation is likely to be necessary for an effective investigation, not whether it is certain to be necessary. Relevant considerations include the complexity of the issues, effective accountability, family involvement and the absence of another representative of the public interest.

An eight-year-old claimant challenged the Minister’s refusal to provide exceptional funding for his father’s legal representation at the inquest into the deaths of the claimant’s mother and sister in the Ufton Nervet train crash.

The application was advanced on two alternative grounds: significant wider public interest in representation, and the likelihood that representation was necessary for an effective investigation under Article 2 of the ECHR. The Legal Services Commission had recommended funding, while the Minister refused it and offered only Legal Help.

1. The claim for judicial review was allowed and the Minister’s decision of 11 October 2005 was quashed. The defendant was ordered to pay the claimant’s costs.
2. Under the Access to Justice Act 1999, Schedule 2 services are excluded from ordinary Community Legal Service funding. In an excluded case not covered by a direction requiring funding, the Legal Services Commission makes a recommendation, but the Minister retains the power and responsibility to decide whether funding should be granted. The Minister was therefore entitled to reject the Commission’s conclusion on the significant wider public interest criterion.
3. The Minister’s decision was nevertheless irrational. The rail-safety issues at the inquest plainly concerned the travelling public. The Minister failed to consider that the interests of the police, regulators and railway companies might diverge from those of the travelling public, and failed to address the potential benefit of representation by a party reflecting that public interest.
4. The Commission was the expert statutory body applying the Funding Code. Although the Minister was not bound by its recommendation, she was required to give it due weight and provide a reasoned explanation if departing from it.
5. The Minister also applied the wrong Article 2 test. The question under the Lord Chancellor’s Direction was whether representation was likely to be necessary for an effective investigation, not whether it was simply necessary. An effective investigation may require accountability for dangerous practices, public scrutiny and appropriate family involvement, consistently with R v (Amin) v Home Secretary [2004] 1AC653 and Regina (Khan) v Secretary of State for Health [2004] 1 WLR 971.
6. The inquest involved complex and technical rail-safety issues. Because no other represented party necessarily reflected the interests of the travelling public, representation for the family was likely to be necessary for an effective Article 2 investigation and to safeguard the legitimate interests of the next of kin. Legal Help, limited to preparation and written questions or submissions, was likely to be impractical and ineffective.