Humberstone, R (on the application of) v Legal Services Commission [2010] EWHC 760 (Admin)

[2010] EWHC 760 (Admin)

Case No CO/9273/2009

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 13/04/2010

Before

MR JUSTICE HICKINBOTTOM

Between

THE QUEEN ON THE APPLICATION OFClaimant

CLAIRE HUMBERSTONEClaimant

LEGAL SERVICES COMMISSIONDefendant

HM CORONER FOR SOUTH YORKSHIRE (WEST)Interested Party

Stephen Simblet (instructed by Howells LLP) for Claimant

Barbara Hewson (instructed by Legal Services Commission) for Defendant

for The Interested Party did not appear.

Hearing Hearing dates: 30 March 2010

Judgment

Introduction

[1]In this application for judicial review, with the leave of Cox J, the Claimant Miss Claire Humberstone (“Miss Humberstone”) challenges the lawfulness of the decision of the Defendant Legal Services Commission (“the Commission”) dated 5 June 2009 not to recommend to the Lord Chancellor that her application for public funding for representation at the inquest enquiring into the death of her son, Dante Lee Kamara, be granted. Such grants, which cover attendance on the day of the inquest and any incidental costs of advocacy, are in the discretion of the Lord Chancellor, but the positive recommendation of the Commission is a pre-condition. The relevant inquest is before HM Coroner for South Yorkshire (West), Mr Christopher Dorries, who is a named Interested Party in these proceedings but who has played no active part.

Factual Background

[2]On the evening of 1 July 2008, Dante Kamara died in hospital after an asthma attack to which the emergency services responded. He was born on 21 April 1998, and was therefore a little boy aged 10 when he died.

[3]Dante suffered from severe asthma from the age of 2 years. He was supposed to take a steroid inhaler regularly (twice a day) as chronic therapy, and a preventative bronchodilating inhaler as and when required as acute therapy. In May 2003, when he was 5 years old, he was referred to a consultant paediatrician, Dr Caroline MacKenzie. He was under Dr MacKenzie’s care until 2007, but the medical records show that there were many appointments not kept and frequent expressions of concern from Dr MacKenzie to Miss Humberstone about the level of home therapeutic care in relation to Dante’s asthma.

[4]That culminated in an attendance at Dr MacKenzie’s clinic on 9 February 2007. The appointment was fixed for 10.30am, but Miss Humberstone and Dante arrived at 12.40pm. Dr MacKenzie noted that it was clear that Dante was very much left to his own devices in managing his asthma, and he was clearly not able to comply with treatment without close supervision which, in the doctor’s view, he did not always receive, which appears to have been a reference to Dante’s failure to take his chronic steroid medication regularly. The doctor appears to have made that clear to Dante and his mother at the appointment. Inhaler and spacer device technique was also reviewed by the asthma nurse on that occasion, and it was stressed to Miss Humberstone that she and Dante must attend appointments when fixed.

[5]In her following letter to Dante’s general practitioner (copied to Miss Humberstone), Dr MacKenzie reported that: “Dante and his mum left clinic in no doubt that his current poor control of asthma may be fatal if they do not comply with subscribed medication”, another apparent reference to his failure to take his chronic medication, with the result that his asthma was not as well controlled as it ought to have been. On receipt of that copy letter, Miss Humberstone rang Dr MacKenzie. She was very angry about the content of the letter, and made that plain: although, Dr MacKenzie noted, it seemed from that conversation that the content of the consultation had apparently hit home, and Miss Humberstone appeared to have taken the advice seriously and was taking steps to ensure Dante received his regular medication. The asthma nurse visited Dante at home on 2 March 2007, and found his lung function had improved. That appears to have been a response to better therapeutic compliance at home.

[6]The next out-patient appointment at Dr MacKenzie’s clinic was fixed for 14 June 2007. Miss Humberstone and Dante failed to attend that appointment; and the appointments on 10 August and 14 September 2007. From the clinic notes, it appears that no other appointments were sent or made. Therefore, in the event, the last contact between Dr MacKenzie and Miss Humberstone was the telephone conversation to which I have referred.

[7]As I understand it, Dante continued to receive prescriptions for his various inhalers from his general practitioner. There is a statement dated 27 October 2008 of a nurse at his doctor’s surgery - the nurse who saw him on the evening of his death, to which I shall come shortly - who said that she had seen him previously twice before, in April and June 2008. The first occasion was in respect of an acute asthma attack. The second was apparently his annual asthma review. It indicated that Dante did not use his daily inhaler - the nurse again stressed how important that was - and Miss Humberstone thought the condition was getting worse. She wanted him referred to the hospital again, but the nurse said that she would need to see a doctor if she wanted a referral. The nurse did not consider a referral was necessary on that occasion.

[8]Miss Humberstone was aware that, when Dante had a cough, it could lead to an asthma attack. On 1 July 2008, Dante had a cough, and Miss Humberstone kept him off school, to keep an eye on him. Although, during the day, Dante played happily and was “well in himself”, he still had the cough - and Miss Humberstone feared an asthma attack.

[9]In the afternoon, although Dante was not wheezing or short of breath, Miss Humberstone thought that the best course of action would be to take him to his doctor’s surgery so that he could be placed on a nebuliser in order to prevent any avoidable asthma attack. They went to the surgery at about 5.15pm, and saw the nurse to whom I have referred. Miss Humberstone asked her to nebulise Dante. The nurse however said that Dante was not poorly enough to be nebulised. She took his peak flow meter reading (which was 60, and consequently poor), and she prescribed a short course of antibiotics. On the way home, Miss Humberstone obtained the prescription, and Dante then played in a park for half an hour or so. He did not appear to be poorly.

[10]However, on the way back home from the park, he became very breathless and started to wheeze. As a result, Miss Humberstone’s partner and Dante’s father, Jamie Maher, came, gave him his salbutamol inhaler and carried him home, where an inhaler was used again.

[11]By 6.30pm, Dante was still complaining that his chest hurt. He asked for an ambulance to be called, and it was. A paramedic arrived first, about 25 minutes later. He placed a diagnostic hook on Dante’s finger, to check the oxygen levels in his blood, which were apparently low. He therefore gave him oxygen through a mask, for one to two minutes. However, Dante then tore the mask off, appeared to turn blue and collapsed.

[12]At this point, Miss Humberstone describes the paramedic dropping a butterfly clip from the nebuliser down Dante’s throat, and retrieving it with an instrument. The paramedic then telephoned someone, presumably, Miss Humberstone thought, at ambulance control, whilst Mr Maher administered cardiopulmonary resuscitation (“CPR”) to Dante. Between the first call and the ambulance arriving, there appear to have been several calls to the control centre.

[13]The ambulance arrived about a quarter of an hour later, and Dante was taken into it on a stretcher. Mr Maher went with him to hospital. Miss Humberstone followed separately, with a friend.

[14]The ambulance arrived at Sheffield Children’s Hospital between 7.35pm and 8pm, and Dante was taken straight to the resuscitation suite. Unfortunately, despite the hospital’s efforts, he was declared dead at 8.30pm. On any view, at the age of 10, Dante’s death was tragic and awful, particularly for his parents.

[15]Dante died on 1 July 2008. On 12 July, at about midday, his mother was arrested on suspicion of his manslaughter by gross negligence. It appears that the police intervention was the result of suggestions by the medical practitioners that, in relation to the supervision of his asthma medication, Miss Humberstone may not have cared for Dante properly, which appears to reflect the earlier concerns expressed by Dr MacKenzie and nurse to which I have referred.

[16]At the police station Miss Humberstone was upset, and was seen by a doctor for nearly an hour before he advised that she was “fit for process”, i.e. interview and detention at least in the short term, but only with an “appropriate adult”. The doctor noted that she had suffered from a long-standing depressive illness, for which she had been treated by her doctor and which had been exacerbated by her son’s death. Although she was not in the event charged, one can reasonably assume that the police would not have arrested her in the circumstances unless they had some reasonable grounds for considering that she might have been responsible for her own son’s death through gross negligence. Those grounds apparently emanated from concerns expressed by Dante’s medical practitioners about the level of his mother’s historic care in relation to his asthma medication.

[17]Mr Christopher Dorries, HM Coroner for South Yorkshire (West) (“the Coroner”), decided to hold an inquest into Dante’s death. He is a coroner of considerable experience, and is the author of one of the standard text books on coroners’ law, practice and procedure. The pre-inquest review was originally fixed for 3 December 2008, but was adjourned to 25 February 2009 because Miss Humberstone had instructed solicitors and it was hoped that she would obtain public funding for which she had applied to the Commission.

[18]Through her solicitors, the Claimant made an application for funding on 9 February 2009. That letter enclosed a letter from the Coroner dated 9 January 2009, in which he expressed concerns that it seemed likely that the medical professionals would raise criticisms of Miss Humberstone’s level of care of her child, and he especially asked for funding to be considered on the basis that she was a person who was not only the deceased’s mother but a person whose evidence might be “called into question”. (Although the Coroner uses the word “evidence”, his use of inverted commas round “called into question” suggests he had in mind Rule 24 of the Coroners Rules 1984, which refers to, “Any person whose conduct is likely in the opinion of the coroner to be called into question at an inquest…” (emphasis added). I refer to this provision below: see paragraph 30). In the letter, the Coroner also referred to his concern that Miss Humberstone would be unable to play a proper part in the proceedings because of the allegations and counter-allegations that would arise, and her emotional reaction to her son’s death and the complexity of the medical issues.

[19]Funding was effectively refused on 20 February 2009 - the Commission considering that the issues that arose were not of such factual or legal complexity, or of such seriousness, that funding was required to enable the Claimant effectively to participate in the inquest - but that refusal letter referred to the right to have the decision reconsidered, a right taken up by Miss Humberstone though her solicitors.

[20]There followed a number of decisions by the Commission, on requests for funding and reviews, all negative so far as funding was concerned, and culminating in a decision letter dated 5 June 2009, written by Colin Stutt, the Head of Funding, Legal & Governance Team at the Commission. I shall come to that letter. I need not deal with the earlier decisions in any detail, because they are not extant and not of course challenged in these proceedings: but they are based upon one or more of three premises, or at least recurring themes. The first is that the state’s procedural obligation for an investigation under

Article 2 of the European Convention

for the Protection of Human Rights and Fundamental Freedoms (“Article 2”) does not arise in this case at all, because the allegations by Miss Humberstone against the medical authorities do not go beyond simple negligence. I shall return to the obligations imposed upon the state by Article 2 in due course. Second, if the obligation for an investigation did arise, the Commission asserted that “legal representation [at an inquest] would only be necessary in cases of exceptional factual and legal complexity”, which this case (they said) was not. The Commission purported to derive that premise from the judgment of Richards J (as he then was) in R (Challender) v Legal Services Commission

[2004] EWHC 925 (Admin)

(“Challender”). That is the reason for refusal given, for example, in the letters of 26 March (another decision letter written by Mr Stutt) and 17 and 27 April 2009 (written by others). Third and finally, the decision letters refer to R (Khan) v Secretary of State for Health

[2003] EWCA Civ 1129

(“Khan”), which involved allegations of gross (as opposed to simple) negligence on the part of the medical intervention involved, and also an alleged cover-up of that conduct by the authorities. That case was (the Commission said) distinguishable on its facts.

[21]In form, the letter of 5 June 2009 is, for reasons to which I shall shortly come, a decision refusing to recommend Miss Humberstone’s application to the Lord Chancellor for exceptional funding: but, in substance, it is of course a decision denying Miss Humberstone the opportunity of obtaining funding for legal representation at the inquest. It is that decision which she now challenges in this judicial review.

[22]However, to complete the relevant chronology, the pre-inquest review went ahead on 25 February 2009, with Miss Humberstone attending in person, with Mr Maher, although assisted by a solicitor (Peter Mahy of Howells LLP) as a McKenzie friend. It was apparent from that hearing - and has been confirmed since - that a number of other “interested persons” will be formally represented at the inquest - the ambulance authority, the hospital authority, and the individual doctors and nurses involved. Mr Mahy (First Statement 3 August 2009, paragraph 3) and Miss Humberstone (First Statement 12 May 2009, paragraph 9), in evidence not contested before me, say that neither Miss Humberstone nor Mr Maher really understood what was going on at the review hearing, despite the assistance of both Mr Mahy and the coroner.

[23]At the start of that hearing, the Coroner was referred to the Commission’s letter of 20 February 2009, refusing funding. Mr Mahy made a note of the hearing, the accuracy of which is again not challenged. That note records:

“The Coroner says that he finds the letter from the Legal Services Commission startling and that underestimates his view by about 100%.”

The Coroner also expressed concern that other participants at the inquest would be represented - some, if not all, at public expense - but not Miss Humberstone. He said he would write further to the Commission.

[24]The Coroner wrote to the Commission again on 11 March 2009, expressing concerns about their decision, in these terms:

“Your letter of the 20th February 2009 concerning the above was shown to me at a recent pre-inquest review of this case. Whilst I do not pretend to have a grasp of the legal technicalities on exceptional funding, I hope you will forgive me writing to you to express some disquiet about the decision apparently made in this case. I understand that the refusal of exceptional funding may be subject to appeal [in fact, an internal reconsideration by the Commission] by Messrs Howell & Co. I do not know whether this letter might be taken into account in that appeal. Firstly, may I correct a significant mis-statement in the letter of refusal. In reason number 6 on page 2, it is said that “the coroner is professionally qualified both legally and medically and will assist the client throughout the inquiry process”

. I suspect that this is an established form of words that may be used in many refusal letters? Unfortunately it is totally incorrect; the vast majority of coroners are legally qualified, a few are medically qualified but there are almost none who are dual qualified. It is unfortunate that the Legal Services Commission should be labouring under such a fundamental misapprehension.” I pause there to say that Mr Dorries is in fact legally, and not medically, qualified. The letter continues:

“May I also respectfully underline that whilst I will certainly assist someone in Ms Humberstone’s position throughout the enquiry process, whether represented or not, I am not there to represent her interests and I will need to be particularly careful of any appearance of special treatment. As I set out below, there are several other interested parties in this case but two in particular, a nurse and a paramedic (both of whom are represented) will also face questions bearing upon whether or not their actions led to the death. Following the pre-inquest review, it is now clear that the South Yorkshire Ambulance Service will be represented, as will the Sheffield Children’s Hospital, the GP’s surgery and (separately) a District Nurse. At least two parties (the Hospital and the Ambulance Service) will therefore be using public funds in their representation. When I wrote to Mr Mahy of Howells on the 9th January, in answer to his request for views on funding, I made it as plain as I could that Ms Humberstone is effectively facing an enquiry at the inquest into whether or not her actions or failures led to the death of her child. You will remember that she was arrested and interviewed for gross negligence manslaughter and the inquest will certainly be considering whether or not the circumstances of the death amount to unlawful killing which, apart from such a verdict, would also lead to the case being sent back to CPS. It also seems inevitable that the other agencies or individuals involved (or represented) will seek to deflect any criticism of their failures (and there are very specific issues which need to be canvassed) by underlining the mother’s failures. Maintaining a fair balance in all of this if Ms Humberstone is unrepresented will be challenging to say the least. To give one example, when Ms Humberstone gives evidence (as she will be required to do by me) how will she determine whether or not she should seek the protection of Rule 22 (against self-incrimination) in respect of questions asked? However fair that I intend to be, I simply cannot discuss her potential answers with her and then advise on what should be said. I should also like to make the point that causation will be a major issue in this case. It is on the basis, as I understand it, that the Crown Prosecution Service did not proceed against Ms Humberstone. This will involve nuances of technical medical information which an unrepresented mother is likely to have little grasp of. I do appreciate the pressures upon the legal aid fund and that inquest cases must properly be “exceptional” to merit consideration. But I do wonder if we should consider it exceptional that a mother is being asked to face a detailed enquiry into her child’s death (the case is listed for five days), amidst allegations of her gross negligence when all the other agencies and individuals effectively ranged against her are legally represented, some at State expense. I hope these points may be of some assistance to you. I am copying my letter to the Minister as I believe he may see the justification for taking a personal interest in this case.”

[25]I shall return to that important letter: but it is clear from its face that the Coroner was concerned about the inquest proceeding without Miss Humberstone being legally represented at it, from a number of aspects. In particular, he is clearly of the view that, in considering whether the death amounted to unlawful killing, a central issue in the inquest will be an enquiry into whether Miss Humberstone’s actions (and particularly her supervision of Dante’s asthma therapy at home) caused the child’s death: and that, in the Coroner’s view, it was “inevitable” that the medical authorities and individual practitioners would be stressing failures on her part. Further, he is of the view that the issue of causation will be a major issue for the inquest, and that will involve technical matters that Miss Humberstone “is likely to have little grasp of”. He refers to the estimated length of the inquest - 5 days - which itself is a mark of the expected complexity. He also expresses concern about(i) the apparent inequality of arms, given that the other protagonists will be legally represented (some or all at public expense), and

(ii) his ability to maintain a proper and fair investigation if Miss Humberstone is not represented. Where he says, “Maintaining a fair balance in all of this if Miss Humberstone is unrepresented will be challenging to say the least”, that in context appears to be a modest understatement of his own view of the difficulties the inquest would face if Miss Humberstone were not legally represented at it.

[26]The inquest is currently in limbo - the second pre-inquest review hearing has not been fixed, pending the outcome of this claim. That in itself is entirely unsatisfactory. In addition to the inability of the deceased parents and perhaps others properly to grieve until the inquest investigation has concluded - and the effects of the child’s death on his mother are clear from the evidence before me - there are allegations made against individual healthcare professionals, as well as Miss Humberstone. All of the participants have a right to an early disposal of this inquest. I should make clear that none of those comments reflects adversely on the Coroner who, from the evidence before me, appears to have acted throughout entirely properly.

The Law

[27]I now turn to the relevant law.

[28]A coroner’s legal obligations are set out in the Coroners Act 1988 and the Coroners Rules 1984. By section 11(5)(d) of the Act and rule 36 of the Rules, the matters that must be ascertained at an inquest are “who, how, when and where”, i.e. who the deceased was, and how, when and where he came by his death. In ascertaining those facts, the proceedings are inquisitorial and investigatory, rather than adversarial.

[29]Rule 17 directs that an inquest shall be in public. Rule 20 entitles specified categories of person to attend an inquest and “examine any witness”, provided that the coroner is bound to disallow any question which is irrelevant or not a proper question and, usually, questions are asked first by the coroner himself (rule 21). In respect of what may be a “proper question”, rule 22 provides that a witness is entitled to refuse to answer a question that might incriminate him or her: and the coroner therefore is under a duty to police questions to ensure that a witness is aware that he or she is not under a duty to answer a question that might self-incriminate.

[30]The categories of person who have rule 20 rights include close family members of the deceased (notably, for the purposes of this claim, parents) (rule 20(2)(a)), and “any person whose act or omission or that of his agent or servant may in the opinion of the coroner have caused, or contributed to the death of the deceased” (rule 20(2)(d)). It is to be noted that under rule 20(2)(d), it is whether, in the opinion of the coroner, a person may have caused or contributed to the death. Further, under rule 24, to which I have already referred (see paragraph 18 above):

“Any person whose conduct is likely in the opinion of the coroner to be called into question at an inquest shall, if not duly summoned to give evidence at the inquest, be given reasonable notice of the date, hour and place at which the inquest will be held.”

Again, it is noteworthy that it is a person whose conduct is likely in the opinion of the coroner” who falls within the provision. In this case, the ambulance and hospital authorities appear to fall within this provision, as well as the relevant doctors and nurses (and Miss Humberstone herself) who will presumably be summoned to give evidence .

[31]Rule 42 provides that an inquest verdict shall not be framed so as to appear to determine any question of civil liability or criminal liability: although rule 42(a) expressly contemplates that an inquest verdict might indicate criminal liability, so long as the alleged perpetrator is not identified.

[32]Funding for participation in inquests is not available under the general legal aid scheme, because Schedule 2 to Access to Justice Act 1999 generally prohibits the Commission from funding “advocacy in any proceedings”.

[33]However, under section 6(8) of the 1999 Act:

“The [Lord Chancellor] - (a) 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 (b) may authorise the Commission to fund the provision of any of those services in specified circumstances or, if the Commission request him to do so, in an individual case.”

There being no relevant direction under section 6(8)(a) or authorisation under section 6(8)(b), the only route available for Miss Humberstone to obtain funding is under the “exceptional funding” provision within section 6(8)(b), i.e. to seek a decision from the Lord Chancellor himself to fund an advocate to represent her at the inquest, as an individual, otherwise excluded or “out-of-scope” case.

[34]As the Act requires a recommendation from the Commission as a pre-condition, in the first instance an application must be made to the Commission. However, the Lord Chancellor has issued guidance, under section 23 of the 1999 Act, “to indicate the types of case he is likely to consider favourably under this power”, which forms part of the Commission’s Funding Code (“the Funding Code”, the quotation coming from paragraph 27.2.1 of that Code).

[35]Paragraph 27.2.6-12 of the Funding Code sets out the Lord Chancellor’s Guidance for “Funding for Representation at Inquests”. As relevant to this claim, the guidance states as follows:

“8. Before approving an application I would expect the Commission to be satisfied that either: There is a significant wider public interest... in the applicant being legally represented at the inquest or Funded representation 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 ECHR…. 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 this 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 agencies of the state. Whether other forms of investigation have taken place, or are likely to take place, and whether the family have or will be involved in such investigations. 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 in the inquest 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.”

There is a significant wider public interest... in the applicant being legally represented at the inquest or Funded representation 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 ECHR

…. 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 agencies of the state. Whether other forms of investigation have taken place, or are likely to take place, and whether the family have or will be involved in such investigations. 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 in the inquest 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.

[36]In the case before me, it is common ground that there is no “significant wider public interest” within the terms of paragraph 27.2.8 of the Funding Code, such that Miss Humberstone could obtain funding under that criterion. However, she claims that she does fall within the second criterion, i.e. that “funded representation 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 ECHR

”.

[37]Paragraph 27.4.5-11 of the Funding Code gives further guidance to the Commission on that criterion, under the heading, “Representation is Likely to be Necessary”: “5. This category of cases arises from the need under

Article 2 of the ECHR

to ensure that certain deaths are effectively investigated by the state. 6. The Commission, in assessing this category of case, looks to the guidance provided in the judgment in [Khan] as to the particular circumstances in which the Article 2 investigative obligation requires funding to be provided for the deceased’s family to be legally represented at the inquest or at an equivalent investigation. 7. Khan states that the coroner’s inquest is the natural occasion for the effective judicial inquiry into the cause of a death that the Convention requires. However, the court also recognised that the holding of an inquest could not fulfil the Article 2 obligation if the family of the deceased was unable to play an effective part in it. The court accepted that in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented. However, there would be exceptional cases where such representation was necessary for the Article 2 obligation to be fulfilled. The court considered that the case in Khan was such a case. 8. The Commission, in considering whether a case can reasonably be said to fall into the ‘exceptional’ category, takes into account the following:(a) The nature and seriousness of any allegations which are likely to be raised at the inquest, in particular any allegations against public authorities or agencies of the state. Particular regard will be given to any of the following circumstances: closely related multiple and avoidable deaths from the same cause within the same institution; criminal conduct; attempts to conceal information or otherwise interfere with an investigation into the circumstances surrounding the death.

(b) Whether other forms of investigation have taken place, or are likely to take place, and whether the family have or will be involved in such investigations.

(c) Whether the family may be able to participate effectively in the inquest without funded legal representation. This generally depends on the nature of the issues raised and the particular circumstances of the family.

(d) Any views, concerning the necessity of representation, expressed by the coroner, although these are not determinative. 9. The starting point for our consideration in these cases is that, in the majority of cases, a family can participate effectively in the inquest without the need for advocacy on their behalf. In general, the ability to attend and understand the proceedings together with an opportunity to raise any particular matters of concern to them with the coroner would be sufficient to ensure participation. 10. In The Queen on the application of Tobias Main v The Minister for Legal Aid

[2007] EWCA Civ 1147

[(“Main”)], the Court of Appeal held that the coroner could reasonably be expected to carry out a proper investigation into the deaths of the deceased without full representation of the family, in a case where the actual facts appeared unlikely to be in dispute, and there were not suspicions of serious wrong-doing or dereliction by an agent or agents of the State. It was emphasised that an inquest is an inquisitorial and not an adversarial process. 11. Legal Help is available to prepare a family for the inquest: and, as stated in Main, to make submissions and identify any particular matters which they wanted the coroner to explore. It is only advocacy before the coroner that is an excluded service under the Act.

[38]As can readily be seen, the guidance recognises the state’s duty under

Article 2 of the European Convention

to investigate a death in some circumstances and, where that duty arises, it sets out guidance with a view to compliance with that obligation. Ms Hewson for the Commission accepted that, insofar as there was any difference, the Commission would have to comply with both the Lord Chancellor’s Guidance as set out in the Funding Code and the obligations imposed by Article 2. However, she submitted that the guidance was effective, i.e. if the Commission complied with the guidance then it would, without more, satisfy the state’s obligation to investigate under Article 2, at least in the circumstances of this case. Mr Simblet, without making any concession, did not identify any specific material deficiencies in the guidance.

[39]In relation to the factor that paragraph 27.4.8(a) of the guidance requires the Commission to take into account, it is “the nature and consequences of any allegations which are likely to be raised at the inquest…” (emphasis added). That invites three comments. First, it uses “allegations” in a broad non-technical sense, to include “suggestions of misconduct”. Second, it clearly includes allegations against those who are not state agents, as well as those who are: it simply requires the latter to be given particular regard. Third, I do not consider that “likely” in this context means “more likely than not”. The requirement is to take into account any allegation that may realistically be raised at the inquest: although, of course, the more likely it is to be raised, the greater weight it might be given. However, the seriousness of the allegation, as well as the likelihood of it being raised, will also be relevant.

The Issues arising from the Grounds of Challenge

[40]Ms Hewson sought to defend the Commission’s decision of 5 June 2009 on two grounds (reflective of the themes in the various decision letters of the Commissions in this case to which I have referred above: paragraph 20), namely:(i) She submitted that, in the circumstances of this case, Article 2 was not engaged, so that no obligation fell on the state to investigate Dante’s death arose at all (“the engagement issue”).

(ii) If that obligation did arise, then she submitted that it was satisfied in this case without Miss Humberstone being granted state funding for representation at the inquest. There was no issue between the parties that Miss Humberstone could not afford representation and therefore, without a grant, she would be unrepresented. However, Ms Hewson submitted that, even without such representation, the Coroner could carry out an “effective investigation” into the death: and, therefore, by refused funding, there was no breach of the Article 2 or the Funding Code (“the breach issue”).

[41]Mr Simblet submitted that, in this case, Article 2 was engaged and that, without Miss Humberstone being represented at the inquest there could be no “effective investigation” into the death, and therefore the decision not to fund her was a breach of Article 2 and the Code.

[42]Article 2 is consequently the starting point for consideration of these issues.

Article 2 of the European Convention

[43]All of the statutory provisions and guidance to which I have referred of course must be read in the context of the provisions of the European Convention for the Protection of Human Rights and Fundamental Freedoms, imported into domestic law by the Human Rights Act 1998.

[44]

Article 1 of the Convention

requires a member state to secure for everyone within its jurisdiction the rights and freedoms defined in Section 1 of the Convention. Unsurprisingly, the first such right to be guaranteed is the right to life. Article 2(1) provides:

“Everyone’s right to life shall be protected by law”

. That primary obligation includes not only a duty on the state not to take life, but also a duty on the agents of the state to take appropriate legislative and administrative steps to protect individuals from threats to life when in their care. Therefore, by way of example, Article 2 imposes an obligation on prison and police authorities to protect those in custody from violence, including violence by their own hand (see, e.g., R (Amin) v Home Secretary

[2003] UKHL 51

(“Amin”) at [30] per Lord Bingham of Cornhill): and an obligation on hospital authorities to adopt systems of work that will protect the lives of patients whilst they are in their care (see, e.g., Vo v France

(2005) 40 EHRR 259

at [49]: and Savage v South Essex NHS Partnership Trust

[2008] UKHL 74

at [69] per Lord Rodger of Earlsferry). I shall refer to this obligation on the state - not to kill and reasonably to protect individuals from threats to their life - as “the primary duty” of the state under Article 2.

[45]The obligation on a state under Article 2 also encompasses a duty, in some circumstances, to investigate a death. That has sometimes been phrased as a discrete procedural obligation to investigate, but, particularly after the judgment of Richards J in (R (Goodson) v Bedfordshire and Luton Coroner

[2004] EWHC 2931 (Admin)

(“Goodson”), especially at [59(iii)]), more usually as part of the positive obligation to establish a framework of legal protection of the substantive right. However, to distinguish it from the more direct primary duty I have described, purely for convenience I shall refer to this as “the secondary duty” of the state under Article 2.

[46]In the context of deaths of patients, the secondary duty has been described by the European Court of Human Rights, in Vo v France (2005) at [89], thus: “They [i.e. the principles of Strasbourg jurisprudence derived from Article 2]… require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or private sector, can be determined and those responsible made accountable…”.

[47]The Court of Appeal have explained this as follows (R (Takoushis) v Inner London Coroner

[2005] EWCA Civ 1440

(“Takoushis”) at [98] and [105] per Sir Anthony Clarke MR, as he then was, giving the judgment of the court):

“We recognise [the cases] tend to refer to the state’s positive obligation to set up an effective judicial system but it seems to us that central to the court’s approach throughout is that the relevant events should be subject to an effective investigation. In order to comply with Article 2, the state must set up a system which involves a practical and effective investigation of the facts…. … It seems to us, however it is analysed, the position is that, where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability.”

[48]In the context of a death whilst under medical supervision, what triggers the obligation for the state to provide such an investigation? Of course, where the state has (or may have) breached its primary duty under Article 2 (i.e. of not taking life and taking appropriate steps to protect life), and state agents are (or may be) responsible for the death, then the obligation to investigate arises. That was common ground before me. In the context of the death of a patient, that might arise if, for example, the alleged negligence is gross (as in Khan) or where the relevant hospital systems are not adequate to protect the life of the patient. Central to these cases is the function of an investigation to ensure that accountability of state agents.

[49]However, although that particular functional aspect is specifically referred to in (for example) Vo v France in the passage I have quoted above, the function of an investigation is more than simply to ensure accountability of state agents who might be at fault. The purposes of an investigation are: “… to ensure so far as possible that the full facts are brought to light; that culpable and discreditable conduct is exposed and brought to public notice; that suspicion of deliberate wrongdoing (if unjustified) is allayed; that dangerous practices and procedures are rectified; and that those who have lost their relative may at least have the satisfaction of knowing that lessons learned from his death may save the lives of others.” (Amin at [31] per Lord Bingham: see also R (L (A Patient) v Secretary of State for Justice

[2008] UKHL 68

(“L”) especially at [21] and following per Lord Phillips of Worth Matravers).

[50]The reference to “those who may have lost their relative” is noteworthy. Lord Slynn of Hadley said in Amin (at [41) that:

“The duty to investigate is partly owed to the next of kin of the deceased as representing the deceased…”

Certainly the cases make clear that, for an investigation to be “effective” it must effectively involve the family and next-of-kin of the deceased to an appropriate extent to safeguard their legitimate interests (see, e.g., Amin at [43] per Lord Slynn; Khan at [62] per Brooke LJ; and Jordan v United Kingdom

(2001) 11 BHRC 1

at [109]): and, as Khan shows, the circumstances of individual family members (including the effect of the death upon them) may be a relevant consideration as to what steps are required to ensure their participation in any investigation is “effective”. That is also directly reflected in the Funding Code (in, e.g., paragraph 27.4.8(c), quoted at paragraph 37 above).

[51]Given that wide span of function for an investigation, it is unsurprising - and clear - that the state may have a duty to hold an investigation into a death - or, rather, support a mechanism for investigation into a death - even where there is no reason to believe that state agents have failed to perform the primary duty imposed by Article 2. That runs as a constant theme through the authorities, but the following are particularly clear and helpful expressions: Goodson at [59] per Richards J, Takoushis at [94] and following per Sir Anthony Clarke MR, and L at [21]-[31] especially at [29] per Lord Phillips. The state may be sufficiently implicated in a death to trigger the obligation of investigation even without any likelihood or even possibility of the state having breached its primary duty under Article 2 to preserve life.

[52]The obligation on the state to investigate a death may arise in circumstances in which the deceased was not in the particular care of the state: for example, Vo v France suggests that the duty arises whenever a death occurs to a patient under medical supervision, whether that be public or private. Indeed, the trend in these cases is towards recognising that the state has an obligation to ensure that an effective investigation is conducted into any death in which there may be doubt as to the circumstances of death (see, e.g., Takoushis).

[53]However, it is unnecessary to go as far in this case, because the authorities are clear that the obligation - the secondary duty on the state under Article 2 - particularly arises when the deceased was in the special care of the state, for example when the deceased dies in custody or in a state hospital. Such an investigation will frequently then be required to ascertain whether there was, in fact, a violation of the primary duty (L at [61] per Lord Rodger). In those cases, the state is sufficiently implicated in the death because the deceased was in the care of a state agent at the time of death, and because of the possibility of that agent was responsible, in some way, for the death.

[54]However, that does not of course mean that, in every case of a death in hospital, Article 2 requires the next-of-kin to have legal representation for the purposes of advocacy at an inquest. Far from it. “[D]eath requires a spectrum of different types of investigation” (L at [31] per Lord Phillips): and the state may ensure that its obligation to provide an effective investigatory mechanism is satisfied in a variety of ways.

[55]Takoushis is again instructive. It stresses that, although Article 2 does not require a state independently to investigate every medical death, “the system must provide for a practical and effective investigation [of the facts in relation to the death]” (Takoushis at [98], emphasis added). Therefore, an “effective investigation” must be available from the system overseen by the state as a whole, and not necessarily from the inquest which is but one part of it. In many cases in which simple negligence is suggested, other elements of the system (e.g. the right to sue in the civil courts) may mean that, outside the forum of an inquest, there is the opportunity for “an effective investigation” into a death.

[56]However, although a sufficient investigation may be provided by any part or parts of the system as a whole, the cases (and, again, a particular example is Takoushis especially at, e.g., [98]-[99]) stress the need for the investigation to be “practical and effective”. Therefore, although it may be that, in the majority of cases where it is claimed or suspected that a death was caused by the simple negligence of a medical professional, the availability of civil proceedings will satisfy the obligation on the state to provide a mechanism for the investigation of a death of a patient, that will not be the case in all such cases: “If, as in our opinion is the case, the system must be practical and effective, we are not persuaded that the mere fact that the state has made it possible in law for the family to begin a civil action against those said to be responsible is by itself a sufficient discharge of the state’s obligation in every case. For example, it may not be practicable for the family to procure an effective investigation of the facts by the simple expedient of civil proceedings. Their claim may be for a comparatively small sum, as for example where the only claim is that if the estate of the deceased, such that it would not make practical or economic sense for civil proceedings to be begun, especially for a family who is not able to obtain legal aid. Another possibility is that the facts may be such that liability has been admitted, with the result that, at any rate under the adversarial system in operation in England, there can be no trial and thus no independent investigation of the facts as part of the civil process.” (Takoushis at [99]-[100] per Sir Anthony Clarke MR).

[57]Therefore, although the system must provide the mechanism for an appropriate investigation, what will amount to an “effective investigation” in a particular case will depend upon the circumstances of that particular case. Again, that rings clear and consistent from the authorities. In Khan, Brooke LJ said (at [67]):

“What is required by way of an investigation [under Article 2] cannot be reduced to a catechism of rules; a flexible approach is needed, responsive to the dictates of the facts, case by case.”

That, in substance, has been endorsed or approved in most of the cases on the secondary duty under Article 2 to which I have referred (see, by way of example, Challender [56] per Richards J, L at [31] per Lord Phillips, and Amin at [61] per Lord Hope of Craighead). In respect of what will constitute an “effective investigation” for the purposes of Article 2 (including whether, for an inquest to be such an investigation, a particular participant will need legal representation), there can be no formulaic approach. Applications cannot be decided on a tick box or grid basis. In order to decide whether funding representation of the family of the deceased is “likely to be necessary for the effective investigation into the death”, although the Funding Code (in paragraph 27.2.9) helpfully identifies some matters that have to be taken into account, each case requires the exercise of judgment on its own particular facts and in the light of all of its own circumstances. That is, no doubt, why paragraph 27.4.1 of the Funding Code requires all applications for inquest funding to be made to, and considered by, the Commission’s Special Cases Unit.

[58]Because each case is so fact-specific, although authorities may be informative as to the relevant principles and approach involved, they are very unlikely to assist in respect of determining whether funding should be recommended on the facts of a particular case. The cases to which I was referred - even those arising out of the death of a patient - have very different facts from this case. The reference in the 5 June 2009 letter to Khan as “[providing] the clearest guidance of whether funded representation should be necessary for an effective investigation” - and the reference to and reliance on Khan and Challender in the earlier decision letters in Miss Humberstone’s case, in reference to the facts of this case - was, in my judgment, misguided. As the Commission indicate in their Acknowledgment of Service (paragraph 24) and in Ms Hewson’s Skeleton Argument (paragraph 8), “the facts in that case are very different”. For similar reasons, I do not consider the reference to Main in paragraph 27.4.10 the Funding Code to be helpful.

[59]Before coming on to deal with the decision letter of 5 June 2009, may I make the following further points in relation to the criteria for determining whether funding of representation is necessary for the purposes of an inquest.

[60]First, as an example of the need for more than a formulaic approach, although one factor may, in a specific case, be determinative, it is not correct or lawful to make a particular factor determinative in each and every case. For example, the complexity of the law or facts cannot be regarded as necessarily determinative, or as any form of surrogate for “exceptionality” in this context. Even in cases where the issues are not complex, an effective investigation may not be possible without representation of a particular participant, e.g. if there is a suggestion of gross negligence or a cover-up by the authorities (as in Khan). Contrary to the assertion in some of the decision letters in relation to Miss Humberstone’s funding application in this case, Challender does not support the proposition that funding of an inquest participant is only required where there is factual or legal complexity in a case. “Complexity” is a relative concept. It is of course relevant to any consideration of whether a participant in an inquest can effectively take part without representation: but it is just one factor for the relevant decision maker to take into account when making any funding decision.

[61]Second, as the Funding Guidance recognises, another relevant factor in this context is the view of the presiding coroner himself. Whilst of course the views of the coroner are not conclusive - the Commission must exercise its own judgment in making any recommendation to the Lord Chancellor - when the determinative issue is whether the coroner can carry out an effective investigation without such funding, the views of the coroner who will conduct that investigation are necessarily worthy of particular consideration. He is a specialist judge appointed under statutory provisions to investigate the circumstances of deaths. The respect given to a coroner in carrying out that function is evident from the wording of the Coroners Rules 1984, which give him considerable procedural discretion illustrated in the rules by the use of the phrase “in the opinion of the coroner” (see paragraphs 28-31 above). He is often, as in this case, of some considerable experience. His view as to whether he can perform an effective investigation into a death without a particular “interested party” being represented must be a matter for special consideration by those involved with funding decisions. Although, of course, the Commission need not accept any views of the coroner, it seems to me that, on this issue, they could only rationally not accept his views if they gave cogent reasons for doing so.

[62]Third, with respect to the comments in Main at [30] to the contrary, it seems to me that one factor that will not be relevant is the absence of (or restrictions on) available public funds. Whilst I appreciate the general constraints on the public funding of representation, those cannot warrant a failure to fund in these circumstances. If the state is required to fund a party at an inquest to avoid a breach of the state’s obligations under Article 2, it does not seem to me to be any answer to say that money is short: nor, of course, have the Commission in this case suggested that it is. Indeed, they frankly and readily conceded that it is not.

[63]Fourth, it is common ground that the Commission have a wide discretion in relation to making recommendations in respect of cases that they consider are worthy of “exceptional funding”. However, the Commission must approach the issue of when exceptional funding is necessary to enable compliance with Article 2 obligations properly: and it, even with its wide discretion, they must make a decision falling within the legal bounds of that discretion. In the usual way for administrative decision makers, whilst the weight given to various factors is a matter for them, the Commission must adopt a lawful approach to the decision, and they must properly take all material considerations into account. The matters of course include those to which the Funding Guidance specifically refer as matters the Commission will take into account.

[64]Fifth and finally, although the primary obligation on the Commission is compliance with Article 2 (and, as I have said, Ms Hewson properly accepted that, in any decision, they must comply with Article 2 insofar as the guidance does not effect compliance), may I generally commend the Lord Chancellor’s Guidance as set out in the Funding Code, to which I have referred. I will of course look at the individual circumstances of this case, but, generally, the guidance appears to me to be soundly based upon the Strasbourg and domestic jurisprudence of Article 2 as set out above. It appears to assume that, where an inquest is called, the duty to investigate that death under Article 2 arises. That, in my judgment, is a wise and proper working assumption. It clearly recognises that, in that investigation, the deceased’s family must have the opportunity to play an effective part. However, whilst apparently confirming that “the coroner’s inquest is the natural occasion for the effective judicial inquiry into the cause of a death that the Convention requires” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above), it also recognises that the investigation required at the inquest may be affected by the other available investigative avenues open to the family. It requires the Commission decision maker to take into account the nature and seriousness of all allegations that are likely to be raised at the inquest, although particularly those made against agents of the state. It requires the decision maker to take into account the views of the relevant coroner. It does not suggest that there is any short-cut surrogate decision, but requires the decision maker to decide whether funded representation for the family of the deceased is likely to be necessary to enable the coroner to carry out an effective investigation into the death in all of the circumstances of the particular case. Mr Simblet made no specific complaints about the guidance in the context of this case. In my view, that restraint was well-merited.

The Decision Letter of 5 June 2009

[65]I now come to the Commission’s letter of 5 June 2009, which, on Miss Humberstone’s application for funding (under the exceptional funding provisions in the second criterion of paragraph 27.2.8 of the Funding Code, quoted above at paragraph 35), refused to recommend the application for funding to the Lord Chancellor as one suitable for exceptional funding. That of course is the decision she now challenges.

[66]The letter identifies that the determinative issue as whether funding is necessary - the wording of the Funding Code is, in fact, “likely to be necessary” - for an effective investigation into the death as required by Article 2. It decided that it is not, on two bases, which I have referred to above as “the engagement issue” and “the breach issue” respectively (paragraph 40 above) .

[67]First, Mr Stutt, as the decision maker and author of that letter, considered that, in the circumstances of this case, Article 2 was not engaged at all. In the letter, Mr Stutt said:

“The case that provides the clearest guidance of whether funded representation should be necessary for an effective investigation is [Khan], where the Court said that, although the function of an inquest in inquisitorial, and in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without the family of the deceased being represented, representation in an ‘exceptional case’ should be funded. Khan involved the death directly caused by grossly negligent clinical intervention, with an alleged cover up by the authorities. Even if your client’s allegations are made out, I am not satisfied that any material investigative obligation arises under Article 2. This is because it is my view that there was no actual or possible breach of the state’s obligations under Article 2. There was, at most a possibility of simple negligence (as described in Goodson below) on behalf of the Bell House Road surgery staff and paramedics, which even if established would not amount to a breach of Article 2 (see [Goodson] and [Takoushis]).”

[68]However, second, even if Article 2 were engaged, then Mr Stutt considered that there would be no breach of the duty to investigate by refusing Miss Humberstone legal representation at the inquest. He said: “Even if my view on the engagement of Article 2 is wrong, the present case does not fall into the category of an ‘exceptional case’ in which representation should be funded. The investigative obligation that arises under Article 2 is satisfied through the Coroner carrying out a proper investigation into the death. The question is whether the Coroner could reasonably be expected to carry our a proper investigation into the death, including the wider aspects of whether your client was implicated and whether there was negligence by the paramedics and the Bell House Road surgery staff, without full legal representation of the family. An Article 2 compliant investigation must, to be effective, permit the family to take an effective part in the inquest, but it does not follow that to satisfy that requirement publicly funded representation is required. In my opinion, the present case does not fall into the category of an ‘exceptional case’ in which representation should be funded. I have considered the views of the Coroner, which are material to the issue in question but, in this instance, they are not determinative to my decision. The fact that the medical professionals may be represented at the inquest is not directly relevant to my decision of whether or not to recommend that representation in this case be funded. In my opinion your client is able to participate effectively in the inquest as both witness and the mother of the deceased. In this context participation does not imply active legal participation in the sense of cross-examination of witnesses. That will rarely be realistic for family members (see D v Home Office

[2006] EWCA Civ 143

) and is the responsibility of the Coroner. Your client has the option of choosing whether or not to answer any questions put to her at the inquest if she so wishes, and I do not accept that legal representation is necessary for this. In relation your client’s role as the mother of the deceased, it would be open to your client, through the Legal Help scheme, to make submissions and identify particular matters that they wanted the coroner to explore. I note that your client was arrested on suspicion of gross negligence manslaughter but has since been released from bail and no charges were brought. Should your client be charged with an offence at the conclusion of the inquest, she is entitled to apply for legal assistance funded by the Criminal Defence Service. The availability of Criminal Defence Service funding satisfies the Article 6 criteria for individuals charged with a criminal offence. An inquest is not a forum in which Article 6 rights are determined ([Challender]).

[69]For both of those reasons - no engagement of Article 2, and in any event no breach - he concluded that funded representation was not necessary to enable the Coroner to carry out an effective investigation into the facts of this case or that it is otherwise appropriate to recommend funding under section 6(8)(b) of the 1999 Act.

[70]That decision, at first blush, may appear surprising - the Coroner found it “startling” (see paragraph 23 above) - but the question for me to determine is whether it is lawful. Main stresses the importance of this court focussing exclusively on the question of legality of the decision, and not being tempted to consider the merits of an otherwise lawful decision.

[71]I shall consider the two bases of the decision in turn. Engagement of Article 2:

“The Engagement Issue”

[72]I am quite sure that the letter of 5 June 2009 was wrong in finding that Article 2 was not engaged in the circumstances of this case. As a matter of law, I am sure that it was.

[73]Mr Stutt considered that Article 2 was not engaged such as to require an investigation into the death because, in reality, the highest the allegation against the “agents of the state” (i.e. the ambulance and hospital authorities) went was one of simple negligence. There was no significant suggestion that any of those state agents had breached the primary duty under Article 2, e.g. by grossly negligent conduct. Article 2 was not therefore engaged, and the “parasitic” duty to investigate therefore did not arise

[74]I make it clear at the outset that nothing I say anywhere in this judgment should be construed as any comment on the merits of any allegations and suggestions that have been made, whomever by, which will be for the Coroner and, in due course possibly others, to investigate. The truth in these suggestions is not a matter for consideration in this claim, and nothing I say should be taken as any comment on the merit of any suggestions made about the conduct of any of the healthcare professional, or indeed Miss Humberstone.

[75]With that caveat, in respect of the suggestions made about the conduct of the healthcare authorities and professionals, although Mr Simblet suggested that an enquiry might reveal that systemic errors (in causing the lateness of the paramedic/ambulance, or the alleged failings of the nurse in not nebulising Dante earlier that evening, or of the paramedic in dropping a clip into Dante’s throat and then not giving CPR himself), I accept for the purposes of this claim that there is as yet no real evidence of any wrong-doing on their part that could amount to more than simple negligence. That is not determinative, because one purpose of the investigation is to ascertain whether there was anything more: but the Commission could not have erred in giving weight to the absence of evidence in regard to conduct on the part of the state’s agent that could possibly have amounted to a breach of the primary duty under Article 2.

[76]However, as I have explained, a duty to investigate may arise under Article 2 even where there is no possibility that any state agent breached the primary duty under that Article (see paragraph 51 above). The decision letter is based upon the premise that a duty to investigate can only arise when there is at least the possibility that some agent of the state has breached the primary duty to protect life under Article 2. For the reasons I have given above, that is a false premise.

[77]I have no doubt that, in the circumstances of this case, a duty to investigate did arise under Article 2. It is quite clear from Goodson (at [59]) and Takoushis (at [94]-[105]) that, where a patient dies in an NHS hospital, the obligation to investigate the death arises. Leaving aside the possibility that it might arise from other features, it arises from the fact that the patient was in the particular care of the state at the time of death, and because of the possibility of agents of the state (including individual healthcare professionals) being responsible for the death. That is a sufficient basis to found the duty.

[78]However, in this case, that is reinforced by the fact that Miss Humberstone faces suggestions by those very state agents that she (rather than they) may be responsible in whole or part for the death. I appreciate that that is different from Khan, in which there was a suggestion of a deliberate cover-up of grossly negligent treatment; but, in my view, it does reinforce the involvement of the state in this case in a similar way.

[79]In any event, returning to the wider features of the case, it appears from Vo v France and Takoushis, that any death in the care of any medical professionals triggers the secondary duty under Article 2.

[80]As I have indicated, it seems to me that the Lord Chancellor’s Guidance - understandably - assumes that, whenever an inquest is called, the Article 2 duty to investigate applies. The initial letter refusing Miss Humberstone’s application for funding (the letter of 20 February 2009) does not suggest that Article 2 is not engaged, only that by refusing funding there is no breach because even without such funding the Coroner will be able to carry out an effective investigation into the death. Those matters too reinforce my conclusion that Article 2 is engaged in the circumstances of this case: and the state had a duty to ensure there was an effective investigation into this death.

[81]I find that as a matter of law: but, I am bound to say that, if there were no right in Miss Humberstone to have an effective investigation into her son’s death that would, in my view, be inherently unsatisfactory and indeed disconcerting. It comes as some comfort that my legal interpretation avoids such a result. Breach of Article 2: “The Breach Issue”

[82]However, I do not consider the question of whether Article 2 was engaged in this case to be the substantive issue in this case - it is in my judgment clearly engaged, the real issue being whether a refusal of funding to Miss Humberstone breaches the state’s obligation to carry out an effective investigation into the death. That was the issue which, properly, occupied the vast majority of the debate before me.

[83]The 5 June letter indicates that:

“The investigative obligation that arises under Article 2 is satisfied through the Coroner carrying out a proper investigation into the death.”

There is no suggestion that any other part of “the system” overseen by the state is relevant or relied upon. In the context of this case, that concession appears to me to be entirely proper - and in line with the Funding Code (e.g., paragraph 27.4.7, quoted in paragraph 37 above), for the reasons I have already given. The question for me to consider is therefore whether the Commission lawfully concluded that, in all the circumstances of this case, funded representation for Miss Humberstone was not necessary to enable the Coroner to carry out an effective investigation into Dante’s death.

[84]I appreciate the broad discretion of the Commission in relation to matters of funding, and the proper caution with which this court approaches challenges to their decisions, to which I have already referred. However, as indicated above (paragraphs 34-39), paragraphs 24.2.9 and 27.4.8 of the Funding Code require the Commission to take into account, as factors material to funding,(i) the nature and seriousness of any allegations which are likely to be raised at the inquest, and

(ii) whether the family may be able to participate effectively in the inquest without funded legal representation. Those two factors are linked, because whether effective participation is possible “will depend on the nature of the issues raised and the particular circumstances of the family”. For the following reasons, I do not consider that the letter of 5 June 2009 properly took into account those two material factors.

[85]As I have indicated above (paragraph 39), the Funding Code requires the Commission to take into account the nature and seriousness of any allegations which are likely to be raised at the inquest, including allegations against those who (like Miss Humberstone) are not state agents. That, of course, requires them to have a sensible understanding of the nature and seriousness of those allegations, as set out in the material before them.

[86]The letter indicates that, in Mr Stutt’s view, Miss Humberstone will be able to participate in the inquest in her role as the mother of the deceased and as a witness to various events. I shall return to those roles shortly. However, she has a third potential role in relation to the inquest, namely as someone who, it is suggested, may have caused or contributed to the death. The letter deals with that aspect very shortly, by indicating towards the end that the allegations of gross negligence manslaughter against her have not been pursued: and, if they are pursued after the inquest, she will be entitled to Criminal Defence Funding. Ms Hewson expanded upon that in her Skeleton Argument (paragraph 17) and in her oral submissions. She submitted that Mr Stutt took the view (that was, she contended, open to him to take) there was no real possibility of any charge being laid against Miss Humberstone for manslaughter (particularly given the stringent test for gross negligence manslaughter), nor indeed was there any real possibility of Miss Humberstone’s therapeutic care for Dante at home being the subject of criticism at the inquest. I was referred particularly to the evidence of the surgery nurse (see paragraph 7 above), and the fact that Miss Humberstone kept him off school and took Dante to the surgery on the afternoon of the day he died.

[87]Although of course it is for the decision maker on behalf of the Commission to consider the evidence and give weight to parts of the evidence that he considers appropriate, in my judgment, it was not open to Mr Stutt to proceed on 5 June 2009 on the basis that Miss Humberstone faces no real risk of significant criticism of her conduct at the inquest.

[88]In his letter of 11 March 2009, the Coroner makes it (in his phrase) as plain as he could that Miss Humberstone is effectively facing an enquiry at the inquest as to whether or not her actions or failures led to the death of her son. It is, he considers, inevitable that the various healthcare authorities and professionals will seek to deflect criticism from themselves by underlining her failings. He considers that causation (including the link between Miss Humberstone’s lack of supervision and care over her son’s chronic asthma medication and his death) will be an issue at the inquest: and it was the causative link (he says) the resulted in the CPS not pursuing charges for manslaughter against her. He clearly considers a verdict of unlawful killing a possibility.

[89]Of course, even giving them the respect they deserve, the Commission are able to reject the Coroner’s views - but only for good reason. However, in my judgment, their reason is not good: for the following reasons, I consider it to be flawed.

[90]Whilst Miss Humberstone’s conduct on 1 July 2009 during Dante’s acute asthma attack may arguably have been exemplary or at least not open to significant criticism, the criticism of her by the healthcare professionals in the past related, not to her coping with acute asthma attacks when Dante suffered from them, but to her supervision of Dante’s regular therapy at home. It was that therapy that was designed to control his condition: and it was a failure in respect of that which Dr MacKenzie apparently suggested could lead to serious consequences for Dante. Ms Hewson submitted that that could no longer be suggested, in the light of the nurse’s evidence of recent appointments at the surgery (see paragraph 7 above): but that does not follow. Those appointments may suggest that Miss Humberstone continues to react to acute episodes, but they do not suggest that there are no problems with the chronic therapy and Miss Humberstone’s supervision of that. They suggest he was not taking it regularly, and his mother reported that she though his condition was getting worse. That appears to be similar to the concern expressed by Dr MacKenzie in 2007 and to the suggestions from the healthcare professionals that led to Miss Humberstone’s arrest on 12 July 2009 on suspicion of gross negligence manslaughter.

[91]In their decision of 5 June 2009, the Commission simply failed to take into account the possibility that the inquest would involve allegations against Miss Humberstone that her historic failure adequately to supervise the regular treatment required for the good control of Dante’s asthma may have caused or contributed to his death. The Coroner considered that such suggestions are likely to be made at the inquest: and, it is not that the Commission disagree with that view, but they have failed to take the real nature and seriousness of those allegations into account at all, because they have misunderstood them.

[92]Mr Stutt also appears to have considered only whether charges of manslaughter might be brought against Miss Humberstone. The Coroner clearly considers such charges are possible following the inquest. The Commission appear to disagree with that because they have failed to understand the essence of the allegations against her: but, even if the Commission disagree with that for good reason, the suggestions about her conduct might have other serious consequences for her. For example, she has other children, and her care of them might be put into question if suggestions are made that she seriously neglected Dante. That too relates to the seriousness of the allegations against her.

[93]Therefore, in these respects, the letter of 5 June 2009 fails to have proper regard to the nature and seriousness of the allegations. This is not simply a matter of weight that the Commission chose to give a particular factor, which would of course be a matter entirely for them. The letter betrays a fundamental misunderstanding of the nature and seriousness of the allegations Miss Humberstone faces. There is no evidence adduced by the Commission in this claim to suggest Mr Stutt was not under such a misunderstanding: and, indeed, the misunderstanding appears to be reinforced by the Commission’s earlier correspondence, and the Commission’s submissions appear to confirm that he did work from a false premise. I am satisfied that the true nature and seriousness of the allegations were therefore simply not taken into consideration by the Commission in their 5 June 2009 decision letter.

[94]This is perhaps not surprising, given the exclusive focus of Mr Stutt in relation to the engagement issue on the acts, omissions and responsibility of the state agents. It also perhaps explains why the letter deals with allegations against Miss Humberstone in such an apparently cursory manner.

[95]I regard the failure of the Commission to take into account the true nature and seriousness of the allegations Miss Humberstone faces at the inquest as a particularly serious defect in the decision making process: one reason why this case is unusual and essentially exceptional is because of the serious allegations Miss Humberstone faces, at the instigation of the agents of state who, she suspects, may have caused or contributed to her son’s death. This case does not open up any floodgate. I do not demur from the view in the Lord Chancellor’s Guidance, which itself reflects comments in Khan, that “in the overwhelming majority of cases the coroner would be able to conduct an effective judicial investigation himself without there being any need for the family of the deceased to be represented” (paragraph 27.4.7 of the Funding Code, quoted at paragraph 37 above). Given the nature of an inquest, and the specialist nature of coroners, that must be so.

[96]Before I leave this consideration, the 5 June letter says that the fact that the medical participants are legally represented is not “directly relevant” to the funding decision. I am not sure precisely what is meant by that: but the fact that all other protagonists will be represented at the inquest (some at public expense), even given the inquisitorial nature of such proceedings, seems to me to add some force to Miss Humberstone’s contentions in this claim. Assuming public funds are not being wasted on that representation of health authorities etc, it marks, if nothing else, the complexity of the proceedings: and makes it less likely that Miss Humberstone without representation will be able to play an effective part in the inquest which is her entitlement. (I note in Khan that an offer from the professionals not to be represented was met by a refusal by those advising Mr Khan, because it was considered that no effective investigation could take place in that case without representation: see Khan at [22].)

[97]The Funding Code also requires the Commission to consider whether the family would be able to participate effectively in the inquest without funding. Mr Stutt concluded that, with Legal Help (i.e. assistance short of advocacy), Miss Humberstone would.

[98]Miss Humberstone left school at 15, without any academic qualifications. It is her evidence (Statement 12 May 2009, paragraphs 9-11) that she could not understand what was going on during the pre-inquest review and, despite the assistance of Mr Mahy and the Coroner, does not really understand the nature of an inquest or why it is being held. Mr Mahy, an experienced solicitor in this field, said that Miss Humberstone found it difficult to understand what was going on at the review hearing, and that she would not be able to take an active part in the actual inquest without representation (Statement 3 August 2008, paragraphs 3-4). When in custody, she required an appropriate adult before she was interviewed. The Coroner has expressed serious doubts as to her ability to deal with the complexities of the medical issues in relation to causation, or the allegations she is likely to make and face at the inquest, without representations. He goes considerably further than saying that the inquest would be assisted by her being represented. As I have already indicated, none of that evidence is challenged.

[99]In my judgment, Mr Stutt’s conclusion that Miss Humberstone will be able to participate appropriately and effectively in the inquest is fatally undermined by his misunderstanding of the suggestions made about her conduct in relation to Dante’s home therapy. Further, I consider that that is compounded by her personal circumstances and attributes. With respect to her, she is a woman of limited faculties and experience, who suffers from depression that has been exacerbated by the death of her son and its still on-going aftermath. She does not put herself forward any differently.

[100]Ms Hewson frankly and properly conceded that, if the Coroner had said, in terms, he could not conduct an effective investigation into the death unless Miss Humberstone was represented, the funding recommendation may well have been different. In his letter of 11 March 2009, the Coroner indicated that he is not well-acquainted with the provisions for exceptional funding (or, no doubt, the requirements of Article 2): and, in any event, the actual funding decision is of course that of the Commission. That having been said, in the 11 March letter, the Coroner says far more than merely it would assist the inquest if Miss Humberstone were represented. He sets out specific difficulties that would follow from Miss Humberstone not being represented, and gives reasoned examples. In my view, that letter is a very courteous but very firm indication that the Coroner’s view is that an effective investigation cannot be conducted unless Miss Humberstone is represented. That is underscored, perhaps, by the fact that the inquest has been stalled whilst the funding issue has been finally determined. The Commission have not sought to adduce any evidence from the Coroner to contradict the view that appears clear from the face of his letter.

[101]Therefore, I consider that the letter of 5 June 2009 fails to take those material considerations into account. In my judgment, that a serious fault, particularly insofar as it relates to the misunderstanding in relation to the allegations Miss Humberstone herself faces. I certainly cannot say that the Commission would necessarily have come to the same view on their recommendation had they approached the allegations against Miss Humberstone in a lawful way. In the circumstances, I am bound to quash their decision of 5 June 2009 in relation to the refusal to recommend funding.

Conclusion

[102]For those reasons, I shall allow the judicial review, and shall quash the decision of the Commission dated 5 June 2009 not to recommend to the Lord Chancellor that Miss Humberstone’s application for public funding for representation at the inquest enquiring into the death of her son, Dante Kamara, be granted.

[103]Mr Simblet pressed me, in these circumstances, to make an order requiring the Commission to make a positive funding recommendation. In addition to the general merits, he prayed in aid the delay in the funding decision so far as well as the sheer number of decisions that have emanated from the Commission in relation to this application for funding.

[104]Those submissions have very considerable force. I have already expressed concern about the delay in the inquest caused by the funding issues relating to Miss Humberstone. Her application for funding was made in February 2009. The inquest is, at present, stalled. In the meantime, I do not know whether there are any further recent materials that may be relevant to the question of funding. I am sensitive to the fact that, even if the Commission recommend funding, the final decision lies with the Lord Chancellor, and therefore any recent material may be relevant to his consideration of funding in any event.

[105]In the circumstances, although I shall grant the application and quash the decision of 5 June 2009, I propose to give the parties 21 days from the handing down of this judgment to lodge a draft agreed order and/or written representations in respect of the order that should follow this judgment. If necessary, those can be followed by a hearing at which any particular issues can be aired. That course will however will give the Claimant time to consider whether there are any other materials that should be deployed, and, for the Commission’s part, whether in the light of this judgment they wish in any event to recommend funding. I stress that, in my view, putting the Coroner into a position where he can progress the inquest as soon as possible is of vital importance.

[106]In the meantime, I direct that a copy of this approved judgment shall be sent to the Coroner, as an Interested Party in this claim.

Cited in 1 later judgment

Lee, R (On the Application Of) v 2019