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Public funding for the representation of next of kin at inquests and open justice

In Journalism, Justice, Law on February 15, 2011 at 5:56 pm

By Sam McIntosh

In the recent case of R (Humberstone) v Legal Services Commission (the Lord Chancellor intervening) ( [2010] All ER (D) 255 (Dec), [2010] EWCA Civ 1479), the Court of Appeal held that the Legal Services Commission (LSC) was wrong to deny a mother public funding for legal representation at the inquest into the death of her son, Dante Kamara, who had died of an asthma attack aged 10 years.

The case is important because legal representation for next of kin at inquests into deaths for which the state may bear some responsibility can be a vital safeguard against them becoming incestuous dialogues amongst members of the establishment, where the next of kin’s (and the public’s) concerns are given short shrift.  For this and other reasons, the effective participation of the next of kin in an inquest has important implications for open justice and democratic accountability.

The judgment clears up a recurring ambiguity in previous case law concerning deaths which engage article 2 (the right to life) of the European Convention on Human Rights (ECHR).  The judgment also criticises the presumption made by previous case law, and official guidance, that the next of kin’s right to publicly funded legal representation at article 2 compliant inquests will only arise in exceptional circumstances. Finally, the case demonstrates a rather concerning attitude on the part of the LSC when exercising its discretion: an attitude which may become increasingly entrenched in the current atmosphere of cuts to public funding.

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