RJ, R (On the Application Of) v The Director of Legal Aid Casework

An inquest is not a criminal proceeding, or part of a criminal proceeding, for the purposes of article 6 merely because evidence may create a risk of later prosecution. The claimant’s prior acquittal, the statutory limits on an inquest’s findings, and the privilege against self-incrimination reinforce that conclusion. Although legal representation may plainly be in the interests of justice, exceptional case funding under Legal Aid, Sentencing and Punishment of Offenders Act 2012 was unavailable because refusal of representation would not breach article 6.

A 17-year-old claimant, previously acquitted of arson, was an interested person and witness at an impending inquest into a firefighter’s death. She had limited intellectual capacity and significant mental health difficulties. The inquest was factually and legally complex, and she lacked means to obtain representation.

The Director refused exceptional case funding under section 10(2) of Legal Aid, Sentencing and Punishment of Offenders Act 2012. The claimant sought judicial review, arguing that representation was required by article 6(3)(c) because the inquest could expose her to renewed criminal proceedings. The central issue was whether she was a person charged with a criminal offence and whether the inquest fell within article 6.

1. Claim dismissed. The claimant was not a person charged with a criminal offence for the purposes of article 6(1) and (3), and the inquest was not a criminal proceeding or part of one. The possibility that evidence might prompt a future prosecution was insufficient to engage article 6.
2. The court distinguished pre-trial questioning of a suspect from an inquest. An inquest’s statutory purpose is to ascertain who the deceased was, and how, when, where and in what circumstances the deceased came by death. Under section 5 of the Coroners and Justice Act 2009, the coroner and jury may express no opinion on other matters. Section 10(2)(a) prevents a determination being framed so as to appear to determine the criminal liability of a named person.
3. Any finding of unlawful killing could not itself be used as evidence against a person in later proceedings. The court relied on Bird v Keep [1918] 2 KB 692 and Rogers v Hoyle [2015] QB 265, 304, para 34.
4. The claimant’s acquittal made renewed prosecution substantially more difficult. Sections 75–79 of the Criminal Justice Act 2003 imposed requirements of new and compelling evidence and the interests of justice for retrial of the same offence. Prosecution for a different offence arising from substantially the same facts could also be stayed as an abuse of process under Connelly v DPP [1964] AC 1254.
5. Rule 22 of the Coroners (Inquests) Rules 2013 gave the claimant a specific privilege against self-incrimination. The coroner was required to inform her that she could refuse an incriminating question. That safeguard counted against the conclusion that the inquest substantially affected her position for article 6 purposes, although representation would have been desirable.
6. The court accepted that a future court might exclude an incriminating answer under section 78 of the Police and Criminal Evidence Act 1984 unless the privilege had been freely and unequivocally waived. This was an additional safeguard, not a basis for applying article 6 to the inquest. Since no Convention breach was established, the Director lacked power to make an exceptional case determination under section 10 of Legal Aid, Sentencing and Punishment of Offenders Act 2012.