Main, R (on the application of) v Minister for Legal Aid & Ors [2007] EWHC 742 (Admin)

[2007] EWHC 742 (Admin)Case No CO/1357/2006IN THE HIGH COURT OF JUSTICEQUEEN'S BENCH DIVISION(Administrative Court)Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 02 April 2007
Before
THE HONOURABLE MR JUSTICE OWEN
Between
The Queen (on the application of Main)Claimant
(Transcript of the Handed Down Judgment ofWordWave International LtdA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7421 4040 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Michael Fordham QC (instructed by Christian Khan, Solicitors) for ClaimantNathalie Lieven QC (instructed by The Treasury Solicitor) for DefendantOliver Campbell (instructed by Greenwoods LLP) for First Interested PartyClive Fletcher-Wood, Burges Salmon for Second Interested PartyAndrew Kinnier (instructed by RSSB) for Third Interested PartyHearing Hearing dates: 26.02.2007 and 27.02.2007
JudgmentThe Honourable Mr Justice Owen :
[1]The claimant, who is 8 years of age, brings this claim for judicial review by his father and next friend, David Main.[2]On 6 November 2004 the claimant's mother, Anjanette Rossi, and his sister, Louella Main, who was then nine years of age, lost their lives in the Ufton Nervet train crash, in which a train collided with a stationary motorcar on a level crossing at Ufton Nervet, near Theale, Berkshire. The car had been driven onto the crossing by its owner, Brian Drysdale, where he stopped to await an oncoming train. He was killed in the collision and that would appear to have been his intention. The train was travelling at high-speed, probably at 100 mph until the driver started to brake moments before the impact, and was derailed. Five passengers lost their lives. All five, who included the claimant's mother and sister, were thrown from the train through the windows of the carriages in which they were travelling.[3]The inquest into the deaths of those who lost their lives in the train crash was due to begin on 17 October 2005. On 11 October 2005 the defendant, the Minister for Legal Aid, notified Christian Khan, the solicitors acting for the claimant's father, that his application for exceptional funding for legal representation at the inquest was refused. It is that decision that is the subject of the claim for judicial review. Following the refusal of funding for legal representation, the coroner adjourned the inquest pending the determination of this claim.[4]Three parties have been joined into the action as interested parties, Network Rail Infrastructure Ltd (Network Rail) First Interested Party, First Great Western Ltd (FGW), Second Interested Party, and Rail Safety and Standards Board (RSSB), Third Interested Party.[5]The statutory framework Public legal funding is made available for civil and criminal cases under the Access to Justice Act 1999 (the Act). Section 1 establishes the Legal Services Commission (LSC). Under section 4(1) the LSC is required to maintain the Community Legal Service in order to secure, within the resources made available and priorities set in accordance Part 1 of the Act, that individuals “have access to services that effectively meet their needs”. By section 5(1) the LSC “…shall establish and maintain a fund known as the Community Legal Service Fund from which it shall fund services as part of the Community Legal Service”.[6]Section 6 makes provision for the services that may be funded by the LSC. Section 6(6) provides that the LSC may not fund as part of the Community Legal Service any of the services specified in Schedule 2. Advocacy in coroners’ courts falls within that exclusion. But Section 6(8) is in the following terms – “(8) The [Lord Chancellor] – may by direction require the Commission to fund the provision of any of the services specified in Schedule 2 in circumstances specified in the direction, and may authorise the Commission to fund the provision of any of those services in specified circumstances or, if the Commission requests him to do so, in an individual case”.[7]Section 8 requires the LSC to prepare a code setting out the criteria according to which it is to decide whether to fund services as part of the Community Legal Service, and to set out the factors to be reflected in the criteria. Section 9 makes provision for approval of the code by the Lord Chancellor, and following its approval for it to be laid before Parliament. A funding code was duly prepared by the LSC, approved by the Lord Chancellor and laid before Parliament.[8]Finally section 23 of the Act empowers the Lord Chancellor to give guidance to the Commission as to the manner in which he considers that it should discharge its functions.[9]The funding code Chapter 27 contains guidance as to ‘Exceptional Funding’. “27.1 General 1. Exceptional funding covers two closely related types of application;(i) applications for funding individual excluded cases under section 6(8)(b) of the Access to Justice Act 1999;(ii) applications to cover representation in inquest proceedings pursuant to the Lord Chancellor’s direction on inquest funding. 2. Once it has been determined that an application relates to services that are excluded by Schedule 2 of the Access to Justice Act 1999, and that are not able to be funded within the Lord Chancellor's directions on scope, the only way that funding may be provided is by way of exceptional funding under section 6(8)(b). In such cases the Commission itself cannot grant legal aid, it is only able to recommend a grant of funding to the Lord Chancellor. The final decision to fund an individual excluded case rests with the Lord Chancellor. However, the Act requires the Commission to recommend funding before he is able to grant it under this provision.Therefore all applications for funding under section 6(8)(b) must be made to the Commission in the first instance… 3.

(b) …”

[10]Chapter 27.2 contains the following paragraphs under the heading “Funding for Representation at Inquests” – “6. The then Lord Chancellor issued a Direction with effect from 1 November 2001 bringing representation at certain inquests within the normal scope of CLS funding… the following guidance should be taken into account by the Commission both when considering applications which fall within that Direction and when considering applications relating to other inquests under the section 6(8)(b) procedure. 7. … 8. Before approving an application I would expect the Commission to be satisfied that either: There is a significant wider public interest, as defined by the funding code guidance, in the applicant being legally represented at the Inquest; or Funded representation for the family is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by Article 2… 9. For most Inquests where the Article 2 obligation arises, the coroner will be able to carry out an effective investigation into the death, without the need for advocacy. Only exceptional cases require the public funding of advocacy in order to meet the Article 2 obligation. In considering whether funded representation may be necessary to comply with the obligation, all the circumstances of the case must be taken into account, including: The nature and seriousness of any allegations which are likely to be raised at the Inquest, including in particular any allegations against public authorities or other agents of the state; There is a significant wider public interest, as defined by the funding code guidance, in the applicant being legally represented at the Inquest; or Funded representation for the family is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by Article 2… The nature and seriousness of any allegations which are likely to be raised at the Inquest, including in particular any allegations against public authorities or other agents of the state; Whether other forms of investigation have taken place, or are likely to take place, and where the family have [been] or will be involved in such investigation; Whether the family may be able to participate effectively in the Inquest without funded legal representation. This will depend on the nature of the issues raised and the particular circumstances of the family. In most cases, a family should be able to participate effectively without the need for advocacy on their behalf. Legal Help can be used to prepare a family for the inquest; to prepare submissions to the coroner setting out the family's concerns and any particular questions they may wish the coroner to raise with witnesses. 10. The views of the coroner, where given, are material though not determinative. There is, however, no expectation that the coroner's views should be sought before making an application, or that the coroner will wish to express a view. 11. In general applicants must also satisfy the eligibility limits for Legal Representation as set out in the Regulations. However, with effect from 1 December 2003 I have the discretion to waive financial eligibility limits relating to representation at an Inquest where the Commission request me to do so… I will consider such a waiver in relation to Inquests that satisfy the guidance set out above if, in all the circumstances, it would not be reasonable to expect the family to bear the full costs of representation at the Inquest. Whether this is reasonable will depend in particular on the history of the case and the nature of the allegations to be raised, the applicant's assessed disposable income and capital, and the financial resources of the family and the estimated cost of providing representation.”[11]The Lord Chancellor’s Direction of 1 November 2001 is set out in chapter 27.3 of the Code. The relevant paragraphs are in the following terms – “1. Representation at inquests has traditionally been outside the scope of legal aid. However, the Lord Chancellor has issued a Direction bringing a limited range of inquests within the scope of CLS funding. The full text of the Direction is as follows 2 … 3. The Lord Chancellor authorises the Commission to fund advocacy services on behalf of the immediate family of the deceased at an inquest concerning a death occurring in police or prison custody or during the course of police arrest, search, pursuit or shooting. Such services may be funded where the Commission is satisfied that funded representation is necessary to assist the coroner to investigate the case effectively and establish thefacts. TheCommission should have regard to my guidance on funding individual cases under section (6(8)(b) of the Act when considering cases under this Direction.” … 6. The same criteria are applied to in-scope as to out-of-scope inquests, although custody inquests are in practice the category most likely to qualify for funding. As the guidance at 27.2 above makes clear, there are two grounds for providing funding:(a) cases of significant wider public interest; or(b) cases where funding for the family of the deceased is likely to be necessary to enable the coroner to carry out an effective investigation into the death, as required by Article 2 of the ECHR SIGNIFICANT WIDER PUBLIC INTEREST IN INQUEST CASES 7. As for all cases, an inquest case is only accepted as having significant wider public interest under the Code where the proceedings have the potential to produce real benefits for members of the public other than the client and their family. 8. However, the Guidance requires in relation to inquests that there must be “significant wider public interest in the client being represented at the inquest” for funding to be made available. This means that an applicant must be able to demonstrate that representation is necessary to obtain any benefits that may arise, not just that the inquest itself may provide benefits.” The full text of the Direction is as follows

SIGNIFICANT WIDER PUBLIC INTEREST IN INQUEST CASES

[12]The Code also contains guidance as to the application of the phrase “Significant wider public interest”. “Significant Wider Public Interest 1. Wider public interest as defined only has an impact in the Code if it is “significant”. A common sense approach must be adopted to decide whether a case has a significant wider public interest. Much will depend on the nature of the benefits alleged and how directly other persons may benefit from the case in question. The more intangible and indirect the benefits are, the harder it will be to show that there is a significant wider public interest. Speculative and far-fetched public interest, or themere possibility that a case outcome could conceivably benefit other members of the public would not qualify. 2. The Code sets no limit or minimum of a number of people who must benefit before significant wider public interest can be established. This will vary greatly according to the nature of the benefits… Public interest carries with it a sense that large numbers of people must be affected. As a general guideline, even where the benefits to others are substantial, it would be unusual to regard the case as having a significant wider public interest if fewer than 100 people would benefit from its outcome.”[13]The Factual Background H M Coroner for Berkshire (the coroner) set the date of 15 August for a preliminary hearing into the Ufton Nervet Train Crash, and fixed the full hearing for 12 days commencing the 17 October 2005. On 2 August he wrote to the Next Friend’s solicitor, Ms Louise Christian of Messrs Christian Khan, saying – “I confirm that you act for David Main, the partner and father of two of the victims who died as passengers on this train. In those circumstances, I consider that funded representation of your client is necessary to assist me in investigating the circumstances of the train crash effectively and to establish the facts of the seven deaths that occurred.”[14]At the preliminary hearing Ms Christian submitted that two important issues would arise in the course of the inquest, namely the question of whether the train could have been fitted with a detection system which would have enabled the train driver to know that there was an obstacle within the level crossing, and secondly whether the train could have been fitted with a laminated windows, and if so whether that would have prevented the deaths of the five passengers thrown through the windows. As a result of her submissions the coroner agreed to call witnesses from Network Rail and FGW to give evidence directed to those issues.[15]By letter dated 20 September 2005 David Main applied to the Special Cases Unit of the LSC for exceptional funding for representation at the full hearing. The letter stated that he did not qualify for exceptional funding on financial grounds, but that he was unable to afford the cost of representation at the inquest. On the same day the coroner wrote to Messrs Burgess Salmon, the solicitors representing FGW, identifying “… those factors that I consider will be relevant and which potentially fall within the area of evidence which your Client's Executive Officer can address”. They included – “2. Background information on level crossing safety generally -- with specific reference to AHB (automatic half barrier) crossings. 4. The current position/progress and the practical possibility of obstacle detection on level crossings. 7. The issue of window glass in railway carriages; ejection of passengers through windows in the course of a derailment, recommendations and changes in current standards of window glass and how these can be improved to reduce the risk of passenger fatalities. 8. Conclusions over the cause of the Ufton Nervet train derailment and lessons that can be learned.”[16]On 29 September 2005, the LSC Special Cases Unit Senior Case Manager recommended to the Minister that a grant of funding for representation be made to David Main. His letter was in the following terms – “Application for Exceptional Funding in an Inquest matter pursuant to s6(8)(b) Access to Justice Act 1999” Inquest into deaths of Anjanette Rossi and Louella Main – Ufton Nevert Train Crash Application by David Main Timing Very Urgent. 12 day inquest due to commence on 17th October 2005 at Windsor. Summary Recommendation To provide a grant of funding in the sum of £13,824.46 Background Mr Main’s partner and his daughter were killed in the train crash at Ufton Nevert when they were ejected through the carriage windows, which were not laminated. All 5 fatalities in this crash appear to have been caused this way. This has been a cause of death in other rail crashes. Financial eligibility The applicant does not qualify for funding. He has been doubly bereaved and is left with a young son to bring up by himself. His disposable income is £35,000 for our purposes. His outgoings exceed his income (has been on sick leave since accident and may lose his job). I recommend that discretion is exercised in his favour. Eligibility of other family members N/A Representation of other parties Likely that other parties will be represented Length of inquest 12 days from 17th October 2005 Is there a significant wider public interest in the applicant being represented? Yes. Rail safety issues including the fitment of laminated windows to prevent passenger ejection during accident, which caused all deaths according to Health and Safety Report. Will funded representation assist the coroner in investigating the death and establishing the facts? Yes. Solicitor has been involved in several rail crash investigations and Coroner has written saying representation will assist him. Are the Coroner’s views known about the public funding issues? Yes, see above. Is Article 2 of ECHR engaged? Possibly. The crash was caused by the driver of a car parking on a crossing. The victims appear to have died as a result of being ejected from the carriages following the impact. Those who were not ejected survived. It is possible laminated windows could have prevented the passengers being thrown out of the carriage. The latter is a rail safety issue and the railauthorities will have been aware of the issue from previous crashes.” Inquest into deaths of Anjanette Rossi and Louella Main – Ufton Nevert Train Crash Application by David Main Timing Summary Recommendation To provide a grant of funding in the sum of £13,824.46 Background Financial eligibility Eligibility of other family members N/A Representation of other parties Likely that other parties will be represented Length of inquest Is there a significant wider public interest in the applicant being represented? Will funded representation assist the coroner in investigating the death and establishing the facts? Are the Coroner’s views known about the public funding issues?

Is Article 2 of ECHR engaged?

[17]On 10 October, Ms Christian wrote to the coroner requesting an adjournment so that the issue of funding could be resolved. The coroner granted the adjournment on 13 October; but in the meantime Ms Christian had been informed both by telephone and by letter dated 11 October that the application for exceptional funding had been considered by the Minister and rejected. The letter stated that the Minister had not authorised the LSC to waive the financial eligibility limits for legal representation, but had authorised waiver of the eligibility limits for “ legal help which will cover all work preparatory to the inquest, short of advocacy (and advocacy related tasks)”. Secondly, and as to the argument advanced on behalf of David Main that the case met the significant wider public interest criterion because it would give rise to rail safety issues, in particular the fitting of laminated windows to prevent passenger ejection during an accident, the author said – “Whilst the Minister accepts that the safety issues are important, you have provided no evidence to show that advocacy on behalf of Mr Main will contribute to a resolution of these issues in such a way as to benefit others; the test is a SWPI in the client being represented. You stated that the rail authorities are apparently aware of the issue of laminated glass from previous crashes. The Health and Safety Executive, the Police, and the Rail and Safety Standards Board, have all been involved. The coroner will have the power to make a recommendation to the appropriate authorities should he choose to do so. You have not provided evidence to show what significant wider public interest would be served by your client being represented that is not provided by the other investigations. Therefore the Minister was not persuaded that this case meets the SWPI criterion.” The letter continued – “As you know, if there is no significant wider public interest in the applicant being represented before the coroner, it must be shown that, without funding for advocacy for a member of the deceased's immediate family, the coroner is likely to be unable to carry out an effective investigation into the deaths and establish the facts. The Minister was not persuaded that this was so in this instance. This second criterion for exceptional funding at an inquest is intended to ensure that, in all cases where publicly funded advocacy at an inquest is a procedural requirement of Article 2 of ECHR (the right to life), it will be made available. In this case, whilst Article 2 may or may not be engaged, the Minister did not consider that the funding of advocacy services is necessary for the coroner to investigate the facts. … The Minister's view is that, even if Article 2 is engaged, the coroner will be able to carry out an investigation into the deaths without legal representation for Mr Main. There is no evidence of any particular complexity that would warrant advocacy in this case. If the state has any obligations under Article 2 these will be discharged by the inquest itself, as well as the health and safety and police investigations. You have provided no evidence to suggest that these investigations, taken with the inquest itself, will fail to discharge any Article 2(1) obligation that may be incumbent on the state in this instance. … Nonetheless, the Minister took the view that some form of assistance should be made available to David Main, to help him prepare for the inquest. This is why she has agreed to waive the eligibility limits for Legal Help in this instance.”[18]On 12 October Ms Christian served a pre-action protocol letter seeking a review of the Minister's decision. She received a reply from the DCA by letter dated 26 October stating that the decision of the Minister dated 11 October still stood.[19]The Issues The application for exceptional funding was made on two alternative bases – i. that there was a significant wider public interest in David Main being represented at the inquest. ii. that the funding of representation for the family was likely to be necessary to enable the coroner to carry out an effective investigation into the deaths as required by Article 2.[20]The challenge to the Minister’s decision therefore gives rise to two issues, the significant wider public interest (SWPI) issue and secondly the Article 2 issue. The SWPI issue in turn gives rise to two discrete questions –a. whether the Minister was entitled to reject the recommendation made by the LSC based upon its conclusion that the application satisfied the SWPI criterion, and to substitute her conclusion that the criterion was not satisfied, andb. whether the Minister acted perversely in rejecting the recommendation by the LSC (the rationality issue).[21]The interested parties took a neutral stance on each of the issues. Network Rail and FGW both took issue with the assertion in paragraph 24(1) of the claimant’s grounds that they exercise functions of a public nature and are public authorities within the meaning of section 6(3) of the Human Rights Act 1998. But it was common ground that resolution of that issue was not necessary for the resolution of the issues between claimant and defendant, and that accordingly it need not be addressed.[22]The SWPI issue As to the first question to which the SWPI issue gives rise, it was submitted on behalf of the claimant that the Minister erred in approaching her decision on the basis that she was entitled to set aside the conclusion of the LSC that David Main's application for exceptional funding for representation at the inquest met the SWPI criteria, and to substitute a contrary view. Mr Fordham QC, who appeared for the claimant, argued that the LSC is an independent authority, entrusted with the application of the code, and that its conclusion concerned a code criterion. He submitted that in those circumstances the Minister was not entitled to ‘second-guess’ the LSC's conclusion. He sought to derive support for that proposition from two decisions of the Court of Appeal, SSHD v Hulme [2003] EWCA Civ 1611, and SSHD v Danaie [1998] Imm AR 84, and from a decision of Henry J sitting in the Divisional Court, R v Avon County Council, ex p M [1994] 2 FCR 259.[23]In Hulme the Secretary of State appealed from the decision of Neuberger J dismissing its appeal against the Pensions Ombudsman’s ruling that the Discretionary Awards Panel (the panel) was bound to accept that a serviceman's death was “attributable to service” for the purposes of paragraph 3090 of the Queen's Regulations for the Royal Air Force. The respondent (C) had claimed a war widow's pension under the War Pensions Scheme (WPS). For the purposes of the WPS the Department of Social Security (DSS) certified that the death of her husband (H) was “due to service”. However the panel refused C's application for an attributable family pension under the Armed Forces Pension Scheme (AFPS) on the ground that H’s death was not attributable to service under paragraph 3090. On appeal the Secretary of State submitted that the panel retained the power to determine whether a particular death was attributable to service as part of an unfettered discretion to award an attributable pension whenever it considered it fit to do so. Paragraph 3090 provided:
“ Detailed provisions irrespective of the spouse's length of service or type of engagement (ie pensionable or otherwise), where an officer or airman dies from causes accepted by the Department of Social Security as attributable to or aggravated by service, his eligible survivors may be awarded an attributable family pension at the discretion of the Defence Council as follows…”
[24]In his judgment, with which both Sedley LJ and Munby J agreed, Mummery LJ held that:
“In my view, the natural and ordinary meaning of the language used in paragraph 3090 (1) is that the DSS would determine the issue whether the death was attributed to service and that it would neither be necessary nor permissible for a panel to repeat the exercise. The panel would exercise its discretion under the AFPS on that footing”
[25]The appeal was therefore dismissed on the basis that the panel had misinterpreted paragraph 3090 as entitling it to determine afresh whether the death was attributable to service. It is clear that the decision in Hulme turned on the proper construction of paragraph 3090, and does not in my judgment provide support for the proposition advanced by Mr Fordham.[26]In Danaie the Secretary of State appealed against the judgment of Collins J. who had quashed his decision not to grant exceptional leave to the respondent. The respondent was a citizen of Iran who had claimed asylum because he feared the consequences of his adultery. His appeal was dismissed by the adjudicator, who believed his story, but concluded that it did not bring him within the Convention. But the adjudicator recommended that the respondent be given a period of exceptional leave. The Secretary of State did not believe the respondent's story and for that reason refused to grant exceptional leave. Collins J. held that the Secretary of State's decision was Wednesbury unreasonable. Whereas he was entitled to take a different view from that of the special adjudicator of circumstances obtaining in a particular country, absent persuasive evidence he was not entitled to base his decision on the disbelief of a story put forward by an individual, when that story had been accepted by the special adjudicator. The Court of Appeal dismissed the appeal holding that:
“1. The case was to be distinguished from Alakesan and Elhasoglu: in those cases the decision not to grant exceptional leave depended on the assessment by the Secretary of State of the general circumstances obtaining in the individual's home country. On that matter of the Secretary of State might well be better informed than the adjudicator: in the instant case the decision depended on the disagreement of the Secretary of State with the adjudicator's assessment of the story of the individual appellant. 2. The Secretary of State would not be entitled to base his decision on such a disagreement unless the adjudicator's factual conclusion was demonstrably flawed or fresh material had subsequently become available to the Secretary of State as could realistically have affected the adjudicator's findings, or the adjudicator had decided the appeal purely on the documents or his findings of fact owed nothing whatever to any assessment of the witnesses.”
[27]The principal judgment was given by Simon Brown LJ, but its substance was summarised by

Judge LJ in the following terms:

“I agree with Simon Brown LJ's conclusion and the reasons for it. His judgment demonstrates the essential independence of the special adjudicator within this statutory scheme governing applications for asylum without undermining the ultimate responsibility of the Secretary of State for deciding whether to grant an asylum seeker exceptional leave to remain. The desirable objective of an independent scrutiny of decisions inthis field would be negated if the Secretary of State were entitled to act merely on his own assertions or reassertions about relevant facts contrary to express findings made at an oral hearing by a special adjudicator who had seen and heard the relevant witnesses. That would approach uncomfortably close to decision making by executive or administrative diktat. If therefore the Secretary of State is to set aside or ignore a finding of fact on a crucial issue which has been considered and evaluated at an oral hearing by the special adjudicator he should explain why he has done so, and should not do so unless the relevant factual conclusion could itself be impugned on Wednesbury principles, or has been reconsidered in the light of further evidence, or has a limited or negligible significance to the ultimate decision for which he is responsible.”
[28]There are two points to be made. First the decision does not provide support for the proposition that it was simply not open to the Minister to reject the recommendation made by the LSC; but secondly it is of relevance to the rationality issue.[29]The same applies to the decision in M (Avon). The case concerned arrangements for housing for a person suffering from Down’s syndrome. Proposals made by the local authority were rejected as unsuitable by he mother. The issue was therefore referred to the local authority’s review panel which made a recommendation that the council then rejected. Henry J. held that:
“The local authority, acting through their social services committee could not overrule the decision of the review panel without a substantial reason and without having given the panel's recommendation the weight it required. It was a decision taken by body entrusted with the basic fact-finding exercise under the complaints procedure. It was arrived at after a convincing examination of the evidence, particularly expert evidence. The evidence had, as to the practicalities, been largely one-way. The panel had directed themselves properly in law and had arrived at a decision in line with the strength of the evidence before them. They have given clear reasons and they had raised the crucial factual question with the parties before arriving at their conclusion. The strength, coherence and apparent persuasiveness of that decision had to be addressed head-on if it were to be set aside and not followed. Not to face them was either unintentional perversity on their part or showed a wrong application of the legal standing of that decision. Anybody required at law to give reasons for reconsidering and changing such a decision must have good reasons for doing so and show that they had given the decision sufficient weight.”
[30]Mr Fordam also sought to buttress his argument by reference to the asymmetry that would result if it is open to the Minister to reject the recommendation made by the LSC and to substitute a contrary view. He argues that if she is able to do so, then it would be logical for her also to be able to reappraise the LSC's adverse application of the Code criterion, whereas it is clear that she has no power to do so.[31]In my judgment the statutory provisions are clear and straightforward. The scheme of the statute is that Schedule 2 cases are excluded from Community Legal Services funding; but the Minister may by direction indicate a category or categories of Schedule 2 cases where the LSC should fund in particular circumstances. Schedule 2 cases not subject to such a direction are left to the discretion of the Minister. In such cases the role of the LSC is to make a recommendation (request) to the Minister, but it is for the Minister to make the decision. Furthermore I see nothing illogical in the power to authorise funding being reserved to the Minister in such cases, notwithstanding that she has no power to overrule a decision by the LSC where funding has been refused.[32]It follows that in my judgment the Minister was not bound to follow the view taken by the LSC that the SWPI criterion was satisfied.[33]The Rationality Issue The second question to which the SWPI issue gives rise, is whether the Minister acted perversely in rejecting the recommendation made by the LSC, the rationality issue.[34]The claimant submits that the Minister's conclusion that there was no SWPI in the case was irrational, and should be quashed on that ground alone. In making its recommendation the LSC stated that there was a SWPI in David Main being represented, adding “Rail and safety issues including the fitment of laminated windows to prevent passenger ejection during the accident which caused all the deaths according to the Health and Safety Report”.[35]The relevant guidance from the Lord Chancellor is to be found in 27.2 paragraph 8:
“Before approving an application I would expect the Commission to be satisfied that... there is a significant wider public interest, as defined by the funding code guidance, in the applicant being legally represented at the inquest.”
[36]In my judgment the issues to which the inquest will give rise are undoubtedly of significant wider public interest. They directly concern the safety of those travelling by rail, and their investigation may benefit the rail travelling public. But the question for the LSC in making its recommendation and for the Minister in determining the application for exceptional funding was whether there was a significant wider public interest in the applicant being legally represented at the inquest. By paragraph 8 of the Lord Chancellor’s direction of 1 November 2001, it is for an applicant to demonstrate that his “… representation is necessary to obtain any benefits that may arise, not just that the inquest itself may provide benefit.” As to that Miss Nathalie Lieven QC, who appeared for the defendant, argued that the coroner has an inquisitorial jurisdiction and can be expected to carry out an effective investigation. Secondly she argued that in relation to rail safety issues the coroner will have the benefit of reports from the Thames Valley police, the British Transport police, and the RSSB. She observed that the RSSB report has already made firm recommendations as to the desirability of future research into the potential benefits of early warning systems and laminated windows. Thirdly she relied upon the fact that David Main has been granted Legal Help which will enable him to make written submissions and, if appropriate, to submit questions to be asked by the coroner. She submitted that in those circumstances the Minister’s decision was not open to challenge on Wednesbury reasonable grounds, and that there was nothing irrational about her conclusion that there was no significant wider public interest in representation for the family.[37]But the fundamental weakness in her argument is that there is no identity of interest between the wider travelling public and that of the other parties who have either investigated the accident and/or will be represented at the inquest. So far as the police and the British Transport police are concerned, their role was to investigate the facts with a view to consideration of criminal liability. So far as the regulatory authorities, Network Rail and FGW are concerned, it cannot be assumed that their interest will coincide with that of the rail travelling public. Central to an examination of the rail safety issues on which the coroner has indicated that he wishes to hear evidence, is the balance to be drawn in a costs/benefit or risk/benefit analysis. The rail travelling public may well attach a different value to the factors that weigh in such equations. The issues with which the coroner will be concerned raise questions upon which there is not only a significant wider public interest, but also a potential benefit for members of the public in representation for David Main, given that there will be no other representation reflecting the wider public interest. That is a consideration that was entirely missing from the reasons for rejection of the application set out in the decision letter of 11 October 2005. The failure to take account of what was plainly a relevant consideration was in my judgment Wednesbury unreasonable.[38]Furthermore in response to the judicial review pre-action protocol letter, the author of the decision letter of 11 October 2005 wrote again to Christian Khan solicitors. The relevant sections made no reference to any possible divergence of interest between the interests of the rail travelling public and the bodies to be represented at the inquest, but its paragraph 27 contained the following:
“However, as I say, the test is how representation of your client would bring benefits to the public at large. To establish this, you would need to demonstrate that, for example, any health or safety issues that arise will only do so due to the representation of your client, or that such issues have not been raised before in cases of this nature. Given the involvement of the Health and Safety Executive, the police and the rail safety standards board it is not clear that either of these features apply.”
[39]That paragraph, which plainly reflected the thinking that informed the decision, illustrates the flawed approach. Whilst the test would undoubtedly be satisfied if the applicant were to be able to demonstrate either of the features identified in that passage, it does not follow from the fact that if it does not do so, that there is no SWPI in the applicant being represented. It is not simply a question of whether such issues will be raised, but of whether when those issues are addressed, benefits may arise from representation for a party reflecting the interests of the rail travelling public.[40]There is another way in which the argument can be put. The LSC is an independent statutory body charged with the establishment and administration of the CLS Fund. It is the expert body charged with applying the criteria contained in the Funding Code, including the SWPI test, in in-scope inquests. It made a considered and clear recommendation that there was a significant wider public interest in the applicant being represented. That conclusion was no doubt based upon a recognition of the potential benefit to be derived from representation for a party reflecting the particular interests of the rail travelling public. In arriving at her decision, the Minister ought in my judgment to have given due weight to the conclusion at which the LSC had arrived, and if departing from it, ought to have given a reasoned explanation for so doing. The reason given for refusing the application for exceptional funding was that the applicant’s solicitors had not “…provided evidence to show what wider significant wider public interest would be served…” by his being represented. No further explanation of the reasons for rejecting the LSC’s recommendation was given. The Minister did not address the point that was clearly central to the LSC’s decision, namely the potential benefit of representation for a party reflecting the interests of the rail travelling public as opposed to those of the rail industry or its regulators.[41]It follows that in my judgment the rationality challenge succeeds; and the decision contained in the letter of 11 October 2005 will therefore be quashed.[42]The Article 2 issue By paragraph 6 of the Lord Chancellor’s Direction of 1 November 2001, funding out-of-scope cases may be provided in:
“(b) cases where funding for the family of the deceased is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by Article 2 of the ECHR.”
[43]In its recommendation to the Minister the LSC expressed the view that Article 2 “was possibly engaged”. In the decision letter the Minister addressed the issue in the following terms:
“In this case, whilst Article 2 may or may not be engaged, the Minister did not consider that funding of advocacy services is necessary for the coroner to investigate the facts.”
The letter continued:
“The Minister’s view is that, even if Article 2 is engaged, the coroner will be able to carry out an investigation into the deaths without legal representation for Mr Main. There is no evidence of any particular complexity that would warrant advocacy in this case. If the State has any obligations under Article 2 these will be discharged by the inquest itself as well as the health and safety and Police investigations. You have provided no evidence to suggest that these investigations, taken with the inquest itself, will fail to discharge any Article 2(1) obligation that may be incumbent on the State in this instance.”
[44]The first point to be made is that the Minister does not appear to have applied the correct test. The decision letter states that she did not consider that funding of advocacy services was necessary for the coroner to investigate the facts; but the question is not whether such funding was necessary, but rather whether it was likely to be necessary. But the claimant’s challenge under Article 2 is much wider. It is submitted on behalf of the claimant that the contention that legal representation for the inquest could not be said to be likely to enable the coroner to carry out an effective Article 2 investigation is unsustainable.[45]The nature and extent of the investigative duty under Article 2 has been considered in a large number of cases, both at Strasbourg and within this jurisdiction. In R v (Amin)v Home Secretary [2004] 1AC653 at para. 20 Lord Bingham of Cornhill set out a number of important propositions to be derived from the recent European cases. Most concerned killings deliberately carried out, or allegedly carried out, by agents of the state, and in consequence some of the propositions are not of direct relevance to the instant case. Those that are, are in the following terms – “(4) the obligation to ensure that there is some form of effective official investigation when individuals have been killed as a result of the use of force is not confined to cases where it is apparent that the killing was caused by an agent of the state; Salman, para. 105. (5) the essential purpose of the investigation was defined by the court in Jordan para. 105: “To secure the effective implementation of the domestic laws which protect the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. What form of investigation will achieve those purposes may vary in different circumstances. However, whatever mode is employed, the authorities must act of their own motion, once the matter has come to their attention. They cannot leave it to the initiative of the next of kin either to lodge a formal complaint or to take responsibility for the conduct of any investigative procedures.” (6) The investigation must be effective in the sense that (Jordan, para. 107) “it is capable of leading to a determination of whether the force was used in such cases was or was not justified in the circumstances … and to the identification and punishment of those responsible … this is not an obligation of result, but of means.” (7) … … … (8) While public scrutiny of police investigations cannot be regarded as an automatic requirement under Article 2 (Jordan, para. 121), there must (Jordan, para. 109) “be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case.” (9) “in all cases”, as the court stipulated in Jordan, 109: “the next of kin of the victim must be involved in the procedure to the extent necessary to safeguard his or her legitimate interest.” (9) “in all cases”, as the court stipulated in Jordan, 109:[46]There are a number of further propositions that can be distilled from the speech of Lord Bingham in Amin that are also of relevance to this case. A properly conducted inquest can discharge the state’s investigative obligation, para. 33. Prompt, conscientious and probing investigation cannot suffice to be an effective Article 2 compliant investigation unless accompanied by independence, public scrutiny and effective family involvement, Amin para. 36. Finally at para. 31 – “The purposes of such an investigation are clear: to ensure so far as possible that the full facts are bought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrong doing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relatives may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.”[47]See also Brooke LJ in Regina (Khan) v Secretary of State for Health) [2004] 1 WLR 971 para. 67 at page 989. “The procedural obligation introduced by Article 2 has three interlocking aims, to minimise the risk of future like deaths; to give the beginnings of justice to the bereaved; and to assuage the anxieties of the public. (4) What is required by way of an investigation cannot be reduced to a catechism of rules; a flexible approach is needed, responsive to the dictates of the facts, case by case.”[48]Mr Fordham submitted that the Minister’s decision is unsustainable judged by reference to those principles. In my judgment his submission was well founded. I am satisfied that the Minister’s decision in relation to the Article 2 issue was flawed for the same reason as was her decision that the criterion for a significant wider public interest in representation for the family was not met, namely a failure to recognise the possibility of a divergence of interest between the family as the only representatives of the rail travelling public, and the other parties to be represented at the inquest. An effective Article 2 investigation will necessarily involve consideration of whether there were failings in relation to the rail safety issues, and, if so, seek to ensure effective accountability for such failings, see Amin para 20.(5) and (8). It must ensure so far as possible that dangerous practices and procedures are identified and rectified, and risk of future like deaths minimised see Amin para 31, and Khan para 67. An effective investigation may therefore involve consideration of the responsibility of one or more of the parties to be represented at the inquest, including the regulatory authority, the RSSB. Such parties will be concerned with the wider issue of rail safety, but their involvement will inevitably be coloured by concern for the defence of their own position, a point that serves to underline the fact that there is no identity of interest between such parties and the rail travelling public.[49]Whilst the coroner will of course be concerned with the interests of the rail travelling public, the issues upon which he will hear evidence are complex and highly technical. Had the Minister taken account of the fact that it is only through representation of the family that the wider public interest will be represented, then I am satisfied that she would have arrived at the conclusion that such representation was likely to be necessary for an effective Article 2 investigation bearing in mind the complexity of the issues that the coroner will have to address.[50]Mr Fordham also argues that representation is likely to be necessary to safeguard the legitimate interests of the next of kin, see Amin para 20(9) and 36, and to ensure that the claimant and his father may at least have the satisfaction of knowing that lessons learnt fromthe death of his mother and sister may save the lives of others, see Amin para 31 and Khan para 67. That argument is not in my judgment met by the offer of Legal Help. Such help will involve assistance in framing questions to be put to the coroner to assist him in his questioning of witnesses, and in preparing representations to the coroner. There are two points to be made. First by the offer of Legal Help, the Minister acknowledged that protection of the claimant’s Article 2 rights requires legal assistance. Secondly given the nature of the evidence that will be adduced at the inquest, such help would inevitably result in a laborious process, likely to be both time consuming and ineffective. In my judgment it is likely to be hopelessly impractical, a point that does not appear to have been considered by the Minister. In essence it would amount to the provision of preparation for advocacy, whether oral or written, on the part of David Main, advocacy that he is not capable of conducting. I am therefore also satisfied that legal representation is likely to be necessary to safeguard the narrow but nevertheless legitimate interests of the claimant and his father.[51]It follows that in my judgment the Minister erred in her adverse conclusion on the Article 2 issue, and that the claimant also succeeds on this ground. MR JUSTICE OWEN: Miss Patel, you appear for the claimant? MISS PATEL: My Lord, I make an application for costs. MR JUSTICE OWEN: Yes. The orders that follow my judgment are first that the claim for judicial review be allowed and that the defendant's decision of 11 October 2005 be quashed. As to costs, Miss Lieven? MISS LIEVEN: My Lord, I do not resist paying the claimant's costs. I do have my own application, but I will deal with that in a moment. MR JUSTICE OWEN: Very well. The defendant will pay the claimant's costs and you also need a public funding assessment. MISS PATEL: Yes, my Lord. MR JUSTICE OWEN: Yes, Miss Lieven? MISS LIEVEN: My Lord, I do ask for leave to appeal in this matter, both on grounds of reasonable likelihood of success and wider importance. My Lord, I will put the points briefly because your Lordship is very familiar with the case. Clearly the case falls into two parts: the Wednesbury irrationality challenge and the Article 2 issue. But as your Lordship found, the two are closely interlinked. So on Article 2 it is my submission that your Lordship's judgment is likely to have very wide implications for LSC funding on coroners' inquests because your Lordship has very widely interpreted the words in Amin about ensuring effective accountability for failures in a context which, as your Lordship is aware, is very far from that of Amin, so effectively it is extending those words into a new sphere. Now, whether or not that is right or wrong, in my submission that issue alone is of wider importance which the Court of Appeal should consider. MR JUSTICE OWEN: Yes. MISS LIEVEN: And the implications alone justify leave to appeal. But equally, my Lord -- and obviously this is always very tricky at this stage -- but equally, in my submission, it is arguable that your Lordship's interpretation is wrong -- I am obviously not going to put it higher than that today -- precisely because your Lordship has extended Amin into that broader context than has been found anywhere else, and in my submission your Lordship has done that where the previous approach of Richards J in Challender and the Court of Appeal in Scholes(?), albeit again in different contexts, has been to narrow the scope of Article 2. So in my submission it is clearly arguable that a different decision could have been reached on the law, quite apart from the wider importance. Now, my Lord, on Wednesbury irrationality, as your Lordship's own judgment makes clear, the two issues are closely linked, and on your Lordship's analysis it is not possible to argue one without the other. So in my submission this is plainly not a case where permission should be given on one limb and not the other. Your Lordship's judgment, as I read it, turns on the analysis in paragraph 37 that there is no identity of interest between the travelling public and the other parties who have investigated -- either investigated or will take part in the inquest. My Lord, I would certainly seek to argue in the Court of Appeal that that is not true of the RSSB or the HSE, and in my submission that again -- that single issue -- is of such wider importance as plainly to be a matter for the Court of Appeal because, my Lord, in my submission that goes well beyond anything to do with rail safety and suggests that a regulatory body may have a different interest to that of the wider public -- the safety of the wider public. Now, my Lord, that in my submission is a controversial position and in my submission plainly one that the Court of Appeal should consider. Equally, my Lord, I would submit to the Court of Appeal that in respect of that issue of the public interest, your Lordship has not given sufficient weight to the inquisitorial role of the coroner. I appreciate that your Lordship obviously thinks that you have, but in my submission it is plainly arguable the other way. Finally, my Lord, on the irrationality challenge, I would submit to the Court of Appeal that your Lordship has not given sufficient importance to the word "significant" in the test of significant wider public interest, and although we have always conceded some public interest, significance is a matter for the decision-maker. So, my Lord, on all those grounds I would submit strongly in this case that both of the tests for permission to appeal to the Court of Appeal are met. MR JUSTICE OWEN: Yes. Thank you, Miss Lieven. MISS PATEL: My Lord, can I check that you have had the note from Mr Fordham in this matter? MR JUSTICE OWEN: I have. MISS PATEL: The claimant resists the application for permission to appeal on the grounds set out in that note. To add to that note that you have before you, my Lord, we say that you have come to very clear conclusions in this case on the two grounds on which we have succeeded. MR JUSTICE OWEN: You say the decision was fact specific on both limbs. MISS PATEL: Indeed, my Lord. It was fact specific on the two grounds. Further, we would say it would be a disproportionate use of public money to appeal this matter. The funds which are disputed I am instructed come to some £13,000. I am also instructed that it has cost already over four times that much to debate the matter this far. To continue to debate the matter before the Court of Appeal would mean a waste of significant public money over sums which are quite considerably less than are in issue before us. Further, my Lord, there is the matter of delay. The event in question took place in October 2004. The inquest, it was felt, could be dealt with swiftly and could be dealt with within a year of that date. It is now some three years on. The inquest in this matter has been delayed considerably and upon appeal would be -- MR JUSTICE OWEN: It is clearly highly desirable that this inquest should be dealt with as quickly as possible. MISS PATEL: Indeed, my Lord. MR JUSTICE OWEN: Thank you very much, Miss Patel. MISS LIEVEN: Can I just say one thing? MR JUSTICE OWEN: Yes. MISS LIEVEN: If we do appeal, whether with permission from your Lordship or permission from the Court of Appeal, we would be seeking expedition because we are very mindful of the delay issue. MR JUSTICE OWEN: Thank you. You will have to seek that expedition from the Court of Appeal, Miss Lieven. I am not going to give permission. Thank you very much. MISS LIEVEN: My Lord, in the light of the coming holiday, can I ask for the time to be extended to 14 days for an application for permission? MR JUSTICE OWEN: Miss Patel, any objection to that? MISS PATEL: No, my Lord. MR JUSTICE OWEN: Yes, very well. I will extend time to 14 days. MISS LIEVEN: I am grateful.

Cited in 1 later judgment