Inquests and inquiries: The role of the family and equality of arms

Inquests and public inquiries play a vital role in uncovering the truth when things go wrong.

This is obvious when we look at recent high profile inquests and inquiries: the Hillsborough inquest, the Grenfell Inquiry, the Westminster Bridge inquest and the upcoming inquest into the Manchester terrorist attack.

The public rightly expect proper scrutiny of our state and a fearless investigation into the facts, but is that system fit for purpose and is it fair for the bereaved families?

What most people are shocked to discover is that despite victims’ families being at the heart of any inquest or inquiry they are not automatically entitled to state funded legal representation.

Without this they would be expected to read and understand large amounts of evidence, some of which will be graphic and upsetting and ask difficult questions of senior individuals representing public bodies.

Bereaved families therefore have three options: they can apply to the legal aid agency for what is known as “exceptional funding”, they can pay privately or they can rely on lawyers representing them pro bono.

Obtaining “exceptional funding” is a notoriously difficult and complicated process, which provides funding which is often far less than what the government is prepared to pay its own lawyers.

Paying privately for a lengthy and complex inquest or inquiry is totally unrealistic for all but the very wealthy.

This often leaves families being represented pro bono or not at all.

The problem is that this creates a fundamental inequality of arms. The state guarantees itself legal representation paid for by taxpayers and will inevitably hire top QCs backed by a well-resourced team of government lawyers.

Often their goal will be to protect the state’s interests in limiting the blame levelled at its agencies.

An example of the type of conflict which can occur between the state and a bereaved family is the Westminster Bridge Inquest.

It concluded that shortcomings in the system of security in New Palace Yard in the Houses of Parliament meant that armed police officers were not where they were supposed to be. This meant that PC Palmer lost their protection from his terrorist attacker.

This was despite the Metropolitan Police arguing through their lawyers firstly that the system of security was not inadequate and if it was, armed officers could not possible have saved PC Palmer’s life.

At the time of the inquest, neither PC Palmer’s family, nor those of any of the bridge victims, were in receipt of state funding and had to rely on pro bono representation by lawyers and law firms who chose to represent them for free.

The need for representation of bereaved families seems to be something which the government is starting to recognise, but changes to improve the situation have yet to happen.

If it is the families who are willing to fight the hardest to expose wrong doing that contributed to their loved ones’ death, it must be in all our interests that they are properly funded and represented in doing so.

Thomas Coke-Smyth is a barrister at QEB Hollis Whiteman and Michael Davison is global head of disputes at Hogan Lovells.