Greenough v Ministry of Justice

Exceptional funding for representation at an inquest may be refused where the Article 2 gateway is premature or unsupported by evidence. The gateway depends on the likely need for representation to enable an Article 2-compliant investigation. Before refusal can be unlawful, there must be at least a credible basis for alleging that systemic failings by a state authority contributed causally to the death. Article 2 is engaged only in limited circumstances, including deaths in state custody and systemic failings by hospital authorities. It is not ordinarily engaged merely because a local authority agreed, or intended, to provide social care to a vulnerable person.

The claimant sought judicial review of the Ministry of Justice’s refusal to authorise exceptional funding under section 6(8)(b) of the Access to Justice Act 1999 for representation at the inquest into her brother’s death. Permission had previously been refused on the papers, but the claimant renewed the application before the Administrative Court.

The deceased had discharged himself from hospital against medical advice and died at home the following day. The post-mortem evidence attributed death to severe coronary disease and acute ventricular failure. The central questions were whether the funding application was premature while the coroner had not decided whether an Article 2-compliant inquest was required, and whether there was a credible causal basis for alleging systemic failings by the local authority.

Application refused. The Minister was entitled to refuse exceptional funding.

1. The application was premature. The relevant funding gateway assumed that representation was likely to be necessary to enable an Article 2-compliant inquest. The coroner had not yet decided whether such an inquest was required. Funding was sought for advocacy at that assumed inquest, rather than for an application to the coroner to determine its scope.
2. Article 2 requires an effective public investigation where state obligations may have been violated and state agents may be implicated. As explained in R (on the application of Humberstone) v The Legal Services Commission [2010] EWCA Civ 1479, the relevant language requires a potential causal link between the alleged breach and the death.
3. The Article 2 investigative obligation arises only in limited circumstances. These include deaths in state custody and systemic allegations against hospital authorities, such as failure to provide suitable facilities, adequate staff or appropriate operating systems. The ordinary provision, or proposed provision, of social care by a local authority did not itself bring the deceased within the state’s immediate care or control.
4. There was no evidence that the failure to provide a care package caused, accelerated or otherwise contributed to the death. The deceased had made a good physical recovery, had mental capacity, and had discharged himself against medical and nursing advice. The medical evidence attributed death to chronic heart disease and acute ventricular failure. In those circumstances there was no credible basis for asserting systemic state failings that contributed to death, and the refusal of exceptional funding was not arguably unlawful.

The court granted permission for the judgment to be used in similar cases, while observing that such cases were likely to be highly fact-sensitive.

Permission to continue the judicial review proceedings was refused on the papers by His Honour Judge Raynor QC on 15 July 2013. The renewed application was refused by the Administrative Court.