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

Article 2 of the ECHR distinguishes between the general duty to maintain a legal system capable of investigating deaths and the narrower duty proactively to investigate a death. The narrower duty arises where there is an arguable breach of the state’s substantive duty to protect life, such as a possible systemic failure in state care. Ordinary clinical negligence alone does not suffice.

Where that narrower duty applies, publicly funded representation must be assessed by asking whether it is likely to be necessary for the deceased’s family to participate effectively. The decision must address all relevant circumstances. It must not be controlled by a presumption against representation or by a prior classification of the case as exceptional.

The respondent sought public funding for representation at the inquest into the death of her ten-year-old son following a severe asthma attack. The inquest was likely to examine the conduct of medical professionals, the ambulance service and the respondent herself. The coroner supported the application because of the anticipated allegations, medical complexity and the respondent’s ability to participate.

The Legal Services Commission refused to recommend individual funding under section 6(8)(b) of the Access to Justice Act 1999. Hickinbottom J granted judicial review, quashed the refusal and remitted it for reconsideration. The Commission later recommended funding without prejudice to its appeal. The central issues were whether article 2 required an enhanced inquest and whether the refusal had lawfully assessed the need for representation.

1. The appeal was dismissed unanimously. Hickinbottom J had erred in treating article 2 as requiring a proactive investigation whenever a death involved possible negligence by a state agent. Article 2 imposes both a wide duty to provide an effective legal system for investigating deaths and a narrower enhanced duty proactively to investigate where there is an arguable breach of the state’s substantive duty to protect life.

2. The enhanced duty is engaged in custody cases and may be engaged by a systemic failure in hospital or ambulance provision. It is not engaged by ordinary clinical negligence alone. The court adopted the analysis in R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin) and R (Takoushis) v Inner London Coroner [2005] EWCA Civ 1440. The later ambulance-service report raised sufficient concern about resources or operational systems to require an enhanced investigation in this case.

3. The Lord Chancellor’s guidance concerning article 2 inquests applied to that narrower enhanced duty. The immediate question for the Commission was whether representation was likely to be necessary for the family to participate effectively and safeguard its legitimate interests. The inquiry must focus on the family, rather than solely on what assistance the coroner requires.

4. The judge was right that the Commission had wrongly disregarded the likely allegations against the respondent and had not properly assessed her educational, intellectual and emotional difficulties. Those matters were relevant to effective participation. The guidance’s references to exceptional cases and to a starting assumption against advocacy could not displace the fact-sensitive legal test, particularly given a close family member’s right to question witnesses under rule 20 of the Coroners’ Rules 1984.

5. Even absent article 2 engagement, the refusal would have been unlawful because it did not give reasons for declining to exercise the residual statutory discretion in what might be an extremely unusual case.

• Court of Appeal (Civil Division) Dismissed the Legal Services Commission’s appeal and upheld the grant of judicial review, although on reasoning which corrected the judge’s approach to article 2: [2010] EWCA Civ 1479.
• High Court, Administrative Court Hickinbottom J, on 13 April 2010, granted judicial review, quashed the refusal to recommend funding and remitted the matter for reconsideration. No citation was stated in the judgment.