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Equality of Arms and Article 2 inquests

From 12 January 2022 Exceptional Case Funding (ECF) for inquests will no longer be means tested. Bereaved families in Article 2 inquests will no longer be required to submit to a lengthy and probing application process.

The changes mean that starting on 12 January 2022:

  • new and pending applications for ECF inquest funding no longer require means assessments
  • no further contributions will be required for existing ECF inquest certificates
  • legal help related to the ECF inquest application – and not already in place – will no longer require a means assessment

There is no change to means testing for standalone legal help. However, the legal help waiver provision also remains in place. This allows for advice and assistance in the early stages of the inquest process. Click here for the regulations.

The Justice Committee inquiry launched in July 2020 which examined The Coroner Service, considered the effect of the reforms introduced by The Coroners and Justice Act 2009. It also looked at whether enough progress has been made in improving bereaved people’s experience of the Coroner Service. The function of The Justice Committee is to examine the policies and spending of the Ministry of Justice (and associated public bodies). This includes courts, legal aid, prisons, probation, and the rule of law. It also advises on sentencing guidelines.

The Committee invited written evidence submissions on some or all of the following points:

  1. The extent of unevenness of coroner services, including local failures, and the case for a National Coroners Service
  2. The Coroner Service’s capacity to deal properly with multiple deaths in public disasters
  3. Ways to strengthen coroners’ role in the prevention of avoidable future deaths
  4. How the Coroner Service has dealt with COVID 19
  5. Progress with training and guidance for coroners
  6. Improvements in services for the bereaved
  7. Fairness in the Coroner Service

The report of the Justice Committee published on 27 May 2021 confirmed the views of MPs on the House of Commons Justice Committee that bereaved people are not yet at the heart of the coroner service. The inquiry made 25 recommendations to make the coroner service work better.

The Government response published on 10 September 2021 accepted six recommendations. It committed to undertake further work in respect of 11 recommendations before coming to a firm decision. There are four recommendations which the Government does not accept as it does not consider that they align with departmental priorities. There are an additional four recommendations which are addressed to the Chief Coroner (rather than the Government).

In particular, while the Committee recommended that the MOJ should make available non-means tested legal aid to bereaved families at all inquests where the state is represented, the Government’s position is that:

‘The Government remains of the view that the inquest process is intended to be inquisitorial, and that legal representation should not be necessary at all inquests. However, the Government will be considering its approach to legal aid for inquests as part of its response to Bishop James Jones’ report of his review of the Hillsborough families’ experiences and we will respond to Bishop James’ recommendation on legal aid then.’

The change to ECF is an important step and is widely acclaimed as such by those who represent families in inquests.  It will likely improve access to justice for the bereaved.

The Government response to the review by Bishop James Jones concerning the experience of the Hillsborough families (1 November 2017) is awaited and further changes are undoubtedly on the horizon in the coronial system with further campaigning for a ‘Hillsborough Law’ to support bereaved families through the inquest process.

We remind those with any questions about the coronial process that many solicitors in our firm have vast inquest experience. We would be delighted to advise any health or social care bodies or professionals who require advice or guidance on any issues concerning the Coroner’s jurisdiction and inquests generally.

 


Disclaimer

This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.

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