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

The Article 2 investigative duty may arise even where there is no evidence that a state agent breached the primary duty to protect life. Whether an investigation is effective, and whether publicly funded representation is necessary, depends on the particular facts. The decision-maker must assess all material circumstances, including the nature and seriousness of allegations, the family’s ability to participate effectively without representation, and the coroner’s reasoned views. Complexity is relevant but cannot be treated as a universal threshold or surrogate for exceptionality. A funding decision is unlawful if it proceeds on a material misunderstanding of the allegations or fails to take relevant considerations into account.

The claimant sought judicial review of the Legal Services Commission’s refusal to recommend exceptional public funding for her representation at the inquest into her ten-year-old son’s death. The inquest was expected to examine the conduct of healthcare professionals, ambulance personnel and the claimant herself, including whether failures in supervising the child’s chronic asthma treatment caused or contributed to his death. Other interested persons were represented, and the coroner expressed the view that the claimant’s unrepresented participation would create serious difficulties for an effective investigation.

The Commission proceeded on the basis that Article 2 was not engaged because any possible negligence by state agents was merely simple negligence. It alternatively concluded that the coroner could conduct an effective investigation without funded representation. The issues were whether Article 2 was engaged and whether the refusal lawfully addressed the need for an effective investigation.

1. Article 2 was engaged. The secondary duty to investigate may arise even where no state agent is shown possibly to have breached the primary duty to protect life. The death of a patient in an NHS hospital, the state’s responsibility for the investigatory system, and the possibility that state agents were responsible for the death provided a sufficient basis.
2. The investigation had to be practical and effective. Article 2 does not prescribe one form of investigation. Whether family representation is necessary cannot be determined by a formula, tick-box exercise or fixed threshold of factual or legal complexity. Complexity is only one relevant factor.
3. The Commission had to apply the Funding Code lawfully. It was required to consider the nature and seriousness of allegations likely realistically to be raised, whether the family could participate effectively without advocacy, and the coroner’s views. The coroner’s views were not determinative, but could rationally be rejected only for cogent reasons. Lack of public funds was irrelevant to whether funding was necessary to discharge Article 2.
4. The decision was unlawful. The Commission misunderstood the allegations against the claimant by focusing on her conduct during the acute attack and on the prospect of a manslaughter charge, while failing to consider the historical allegations concerning supervision of regular asthma treatment and their possible consequences. That misunderstanding fatally undermined its assessment of effective participation. The claimant’s personal circumstances, the medical issues, the five-day inquest and the representation of other participants reinforced the conclusion that material considerations had not been properly addressed.
5. The judicial review was allowed and the Commission’s decision of 5 June 2009 was quashed. The parties were given 21 days to make representations concerning consequential relief.