R (Letts) v The Lord Chancellor & Ors  EWHC 402 (Admin),  MHLO 72
"This application for judicial review concerns the criteria applied by the Legal Aid Agency to determine whether relatives of a deceased should be granted legal aid for representation at an inquest into a death which has arisen in circumstances which might engage Article 2... What this case boiled down to was a consideration of how Article 2 applies to the suicide of mental health patients and an assessment of the (in)adequacy of the Guidance in reflecting the law. I have come to the conclusion that in one material respect the Guidance is inadequate and both incorporates an error of law and, also, provides a materially misleading impression of what the law is. ... [I]n the absence of a clear recognition that there is a category of case where the investigative duty arises quite irrespective of the existence of arguable breach by the State the Guidance is materially misleading and inaccurate."
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
LEGAL AID — Availability — Inquest — Investigative duty — Claimant’s brother committing suicide on temporary release from psychiatric hospital — Claimant subsequently granted legal aid for representation at inquest — Claimant seeking judicial review of defendant’s guidance to caseworkers considering application for legal aid — Whether guidance containing error of law or misleading — Human Rights Act 1998, Sch 1, Pt I, art 2
Regina (Letts) v Lord Chancellor (Equality and Human Rights Commission intervening)
B;  WLR (D) 90
QBD: Green J: 20 February 2015
The Lord Chancellor’s Exceptional Funding Guidance (Inquests) (promulgated under the Legal Aid, Sentencing and Punishment of Offenders Act 2012) was unlawful in that it provided a misleading impression of the law for caseworkers considering an application from relatives of a deceased for legal aid to cover representation at an inquest into a death which arose in circumstances which might have engaged article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms.
Green J sitting in the Queen’s Bench Division so held in allowing a claimfor judicial review by the claimant, Joanna Letts, of the defendant Lord Chancellor’s guidance contained in Exceptional Funding Guidance (Inquests). The Equality and Human Rights Commission, as intervener, supported the claimant in her contention that there was an error of law in the guidance as to the scope of article 2 of the Convention, or that, at the very least, it was misleading.
The claimant’s brother committed suicide during his temporary release from a psychiatric hospital. By a consent order in the judicial; review proceedings, the director of legal aid casework agreed to grant to the claimant legal aid in order for her to be represented at the inquest into her brother's death. The judicial review challenge therefore focused on the lawfulness of the defendant’s guidance. The claimant contended that a person such as her brother fell within a category of persons in respect of whom an investigative duty under article 2 of the Convention arose and that the duty arose the moment that it was established. There was, therefore, no need for a caseworker to consider whether in those circumstances the state was in breach of its duty towards the deceased. However, a caseworker following the defendant’s guidance would impose too high a hurdle upon an applicant for legal aid. In issue was (i) the scope of the category of case where the duty to investigate a death and conduct an inquest arose automatically and (ii) whether the defendant’s guidance adequately reflected the legal position.
GREEN J said that it was now clear from the authorities that the suicide of an involuntary psychiatric patient, depending on the facts, was capable of triggering the investigative duty under article 2 of the Convention, irrespective of whether the state, arguably or otherwise, was in breach of its substantive duties. However, there was no room in the guidance for the possibility that the duty might arise in other circumstances, not involving arguable breach. In a material respect the defendant’s guidance was inadequate and provided a misleading impression of the law. An order quashing the guidance would be refused but further submissions as to the appropriate declaratory relief were invited.
Appearances: Phillippa Kaufmann QC and Chris Butler (instructed by Bindmans LLP) for the claimant; Martin Chamberlain QC and Malcolm Birdling (instructed by Treasury Solicitor) for the defendant; Jessica Simor QC (instructed by Solicitor for Equality and Human Rights Commission) for the intervener.
Reported by: Sarah Addenbrooke, Barrister.
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