I was interviewed recently by the BBC Radio 4 programme “You and Yours” together with Beverley Dawkins (MENCAP) and Deborah Coles (INQUEST). Simon Hughes MP, the Minister of State for Justice and Civil Liberties rounded off the programme with his own point of view on how the law treats families requiring legal representation at inquests. As Mr Hughes was a solicitor before he became a politician he knows the law extremely well and is well placed to have an opinion on this. Mr Hughes knows about this, but perhaps you don’t. The situation is this:
A family may ask for legal representation at their inquest, but they will have to pay for it themselves. The cost will be thousands of pounds and is usually more than the family are able to find, so they have to fundraise or go without legal representation. They will have to get it as cheaply as possible, or can only have it for some of the inquest but not all. In some cases families will spend every penny they have and go into debt in order to have legal representation at their inquest. Legal aid is never given in these cases as they agree with Mr Hughes that legal representation isn’t necessary.
INQUEST and MENCAP are calling for legal aid to be given automatically to families who want legal representation at inquests. At the moment the closest thing to this is the possibility of exceptional funding but that is only “if the case is deemed to be in the wider public interest” which means that the inquest has to be given Article 2 status by the coroner (“The death occurred in circumstances the continuance or possible recurrence of which is prejudicial to the health or safety of the public or any section of the public.”) for the family to apply for exceptional funding. Article 2 is very hard to achieve and the exception funding is rarely given even if you have it.
By contrast, the opposing side has access to public money, paid by tax payers, which pays for their legal representation. They can spend as much as they want to or feel that they need to spend in order to win the case. What we are asking for here really isn’t rocket science. We are saying it ought to be the same rule for both sides. Either both sides should have free legal help or neither side should.
Presumably Mr Hughes had already been given the basics of our case and had heard what I had to say. In reply Mr Hughes admitted he didn’t know the full facts of the case but said he was happy to meet with the families involved (meaning myself and The Ryan family, Connor Sparrowhawk’s family) as his job is to learn from the experience people have and to offer support. When he was thrown a few quotes from my interview he was “distressed that this was my experience” and he went on to say;
“Because there isn’t the funding to provide legal aid for everything and in particular because inquests are not like a trial where parties are contesting. It’s an inquisitorial process and it’s the job of the coroner to get to the facts of the death and they will ask the questions and the families can take advice before hand and can engage with the coroner to ask the questions they want to. “
“Inquests should be different and I’m troubled if Rosi felt that she didn’t understand not just what the lawyer said on behalf of the NHS but what the coroner was saying because the coroner’s job is to make sure that they lead the case because it’s a fact finding inquiry and not a court case which comes to a conclusion about guilt and innocence. The process should work that no matter whether you’re represented or not. The questions you want to ask either you ask yourself or they are asked for you and you have absolute equality because the coroner treats you equally.”
What we’re asking for is for a change in the law so that both sides have exactly the same opportunities – the same amount of money to spend on their legal team, or no money at all – but for both sides. Surely it’s the very heart of our legal system that even if you have money and you’re a big organisation, this doesn’t put you into a better position in the eyes of the law. What’s that phrase “all equal in the eyes of the law?”
If more people were aware of the law regarding representation for families at inquests they would be horrified and demand change. The fact that they don’t doesn’t mean they don’t care, it means they don’t know about it. Most families will never have to attend an inquest for a much loved family member, let alone go through what we’ve been through. But our inquest was very normal, so in order that you’ll know a lot more about what goes on, here’s a bit of our inquest experience and I think it will show you why I feel that a change in the law is needed so badly – and needed now.
It’s all rather different to what Mr Hughes’ knows ……………………………..
Southern Health brought in a large legal team for Nico’s inquest. As well as the team of solicitors from Bevan Brittan they also brought in a barrister from another legal firm. This was Mr Iain Daniels from Ely Place Chambers. Mr Daniels is a barrister who specialises in representing medical organisations at Article 2 inquests. In some circles Mr Daniels would be described as “a ringer”. He was slick; he was scary and clearly extremely experienced.
“Mr Daniels is a specialist advocate representing public bodies and specialises in cases with an emphasis on health and safety, healthcare and corporate liability. His recent cases include defending at “fatality” trials and a number of allegedly systemic cases within the healthcare system. He advises public bodies on how best to avoid prosecution. He advises NHS Hospital Trusts and healthcare providers on matters around inquests and medical negligence. Mr Daniels has a particular interest in coronial law and has appeared extensively in inquests on behalf of healthcare providers. “
There’s more, much more…………………………..but by now you’re getting the idea.
I’m sure Southern Health thought that Mr Daniels was worth every penny he cost them – or rather, that he cost the tax payer, for as we all know now, as Southern Health are an NHS Trust don’t have to use their own money to pay for their slick legal team – they can use the very large pot of public money at their disposal. Actually he really was worth every penny – he saved them from a verdict of negligence and a Regulation 28 ruling (which would have meant that their negligent care would have been reported by the coroner’s office to the NHS) and he mounted a very canny and well-thought out case throughout the two days. Plus he was a guy who knew all about the value of a well told lie and his coaching skills were worthy of any premier league football team.
Graeme, our own young barrister (and I hope he won’t mind me saying this) who didn’t look old enough to shave and was working for free, took me aside before the inquest began and asked me to remember that the Mr Daniels wasn’t a “vile bastard”. He was a professional barrister who had been engaged by Southern Health to make sure that he saved them from the worst possible outcome. If he could manage to get them a great verdict which completely exonerated them and declared that Nico had died from natural causes, this would be their icing on the cake and their ultimate goal. But Graeme told me that as far as their barrister was concerned, this wasn’t personal at all. It was totally and completely professional. The guy might like us, might privately agree with us – but that was irrelevant. He was there only in his professional capacity and that was to do the very best and most professional job that he could do. Both Bevan Brittan and their barrister were engaged on the same mission – to win. They needed to win because that was what they had been told to do by Southern Health, who were employing and “paying” them.
Nico’s was the first inquest which I have attended. Everything I know about inquests is based on my personal experience and what Beverley Dawkins, Graeme and our solicitor Nancy told us. However as the final days of Nico’s inquest was only a few weeks ago it’s still fresh in my mind. I’m presuming everything that happened was bog-standard, normal inquest stuff that happens every day and to other people. I’ve checked with our solicitor and she assures me that nothing that happened at our inquest was unusual, so Nico’s inquest is as good a frame of reference as any.
Before the inquest began we knew that at the end no-one was going to go to prison. We knew no “judge” was going to decide on an innocent or guilty verdict. This was not the Old Bailey and there was going to be no “12 just men and true” weighing the evidence. However there were two opposing teams in the court. There were two distinct groups of people who were working towards very different outcomes and were there soley to prove that their version of events and the outcome which they wanted was indeed, the right one.
The Southern Health team, complete with their top flight legals, wanted one thing – and we wanted something quite different. In order to show the coroner which side was telling the truth each side had at their disposal three things: the witness statements, some of those same witnesses giving evidence under oath and the so called “bundles”, the written information.
In many ways the written information dominated the inquest. Never was the word “bundle” used in a less cuddly way than when it was used to cover those many and vast, thick and weighty tomes, each in their blue binding. They were constantly referenced and flicked through by both barristers and the coroner to contest or back up each and every single point made during the inquest days.
But what I didn’t realise beforehand, is that in an inquest the normal rules about witnesses in court don’t apply. A barrister can correct a witness under oath, tell the coroner they’ve given a wrong answer and remind them of the correct one, tell the witness what they did or didn’t do at that point in their statement if they go wrong or disagree with a previous witness and can lead them completely shamelessly, actually arguing with them in their desperation to put them back on the agreed and pre-coached track………and the coroner will do and say NOTHING.
We didn’t do this, but we had very few witnesses anyway. Southern Health had 9 witnesses. Three of these had their statements read to the court and the other 6 gave evidence under oath at the inquest. There were 3 medical witness statements read out and 1 medical witness and also Nico’s consultant gastroenterologist gave evidence. We had 3 witnesses. One had her statement read out and we had 2 witnesses (I was one of them) giving evidence under oath during the inquest.
In the Radio 4 interview I talked about how it feels to listen to the coroner and both the barristers (including ours) talking in that kind of legal double-speak which makes complete sense to them, but to us had little to do with normal English. It wasn’t just that we didn’t understand what they were saying, it was the way that it made us feel; inadequate, stupid, illiterate and very far out of our depth. Whatever Mr Hughes may think, there was absolutely no way that we were going to put up our hands, stop the inquest and say “what does that word mean?” I kept a little piece of paper in front of me which I slid over to our barrister when we felt that perhaps the thing they were talking about might really be important for us to know. It was a piece of paper with a big ? on it.
There is one more thing that I don’t want to be lost in all of this talk was the awful, AWFUL time we had sitting and listening to every tiny little detail, every moment that lead up to my golden boy’s death and every opportunity lost in which he could have been saved. It was like being bludgeoned by emotions too terrible to bear, hour after hour and day after day. Don’t tell me the Southern Health legal team were going through the same thing.
By the final day of our three day inquest we had run out of funds. We had run out of the ability to pay our legal team. As a result we had to choose which day we could afford to have our solicitor in court with us. She chose the final day. This meant that she was there to hear the coroner announce that he was going to grant our case Article 2 status. Against huge odds, our barrister had succeeded in changing the coroner’s mind about this. We had been asking for Article 2 since June 2013 and the coroner had repeatedly refused us. In fact after the first day of the inquest he warned our young barrister that if he asked for it again he risked incurring his wrath (coroner wrath – it’s not good and there’s no cream for it).
But here’s the thing – the family can apply for exceptional funding at the start of the inquest when the coroner grants Article 2 status, but what happens if the coroner grants Article 2 at the very, very end of a long drawn out inquest? The answer is nothing. There is no legal precedent to allow for families to apply for retrospective funding to cover the costs that they have already spent in order to achieve their Article 2 status. So the fact that we’re supposed now to be eligible to apply for exceptional funding means absolutely nothing to us. We’re left with all our savings gone, with new debts and the bank has now withdrawn my overdraft facility.
We’re supposed to be comforted by the fact that, against the mighty power of the Southern Health legal machine, we won our Article 2 status and the coroner ruled that Nico could have been saved.
I’m still waiting for Simon Hughes secretary to give us a date for our meeting. Perhaps we could save on the expense of our train fares and instead he could just read this.