Parkes & Ors v Secretary of State for the Home Department

A conflict of interest in inquest representation may arise where witnesses give materially conflicting accounts on an important issue and a lawyer cannot act in the best interests of all those represented. A mere conflict of evidence is insufficient. Where allegations of grave misconduct by one officer are denied by that officer, the interests of the accusers and the accused may be fundamentally inconsistent. Once a conflict is established under Prison Service Order 2710, the Prison Service must exercise its discretion concerning separate representation and funding; the finding does not require funding to be granted.

Prison officers sought judicial review of the Secretary of State’s refusal to recognise a conflict of interest and provide separate legal representation at an inquest into the death of a young prisoner. The claimants had made serious allegations about another officer and the prison governor. The Treasury Solicitor represented those officers, the Prison Service and other witnesses collectively.

The central issues were whether the claimants had sufficient interest to challenge the decision, whether the circumstances disclosed a conflict under paragraph 6.8 of Prison Service Order 2710, and what consequence followed if such a conflict existed.

1. Sufficient interest. The claimants had a sufficient interest to bring judicial review proceedings. Their concern was not merely the allocation of public funding. They had a personal interest in the adequacy of their own representation and in establishing whether the Treasury Solicitor could properly represent them alongside the officer whom they accused.
2. Meaning of conflict of interest. A conflict of evidence does not itself establish a conflict of interest, and such conflicts will arise only rarely. A conflict may arise where accounts of an event differ on an important point and the difference is such that a lawyer cannot simultaneously act in the best interests of the opposing parties.
3. Application. The allegations against Officer Stevens concerned an inappropriate relationship, the transfer of the deceased to an unsafe wing, falsification of records and related misconduct. The allegations were denied. The interests of the claimants, as accusers seeking to establish the allegations, were fundamentally inconsistent with the interests of Officer Stevens in maintaining his good name and employment. There was also a conflict between the claimants and the Governor in relation to alleged failures to investigate and threats of disciplinary action.
4. The Secretary of State had therefore misconstrued paragraph 6.8 of Prison Service Order 2710, Deaths in Custody by treating the matter as no more than differences in evidence. The court declared that a conflict of interests existed.
5. The existence of a conflict did not compel the Prison Service to fund separate representation. Paragraph 6.8 left decisions on the principle and funding of separate representation to the Prison Service’s discretion. The Prison Service was obliged to exercise, or properly consider exercising, that discretion, taking account of relevant matters including the timing and precision of the application and the claimants’ conduct.
6. The claimants obtained the declarations sought in substance. Costs were to be paid by the defendant, subject to assessment if not agreed. Permission to appeal was refused.