RJ, R (On the Application Of) v The Director of Legal Aid Casework

In this case the claimant challenges a decision of the Director of Legal Aid Casework (“the Director”) to refuse her application for legal aid to enable her to be represented at an inquest.

The claimant is 17 years old. She has been assessed by a psychologist as on the borderline of disability in terms of her intellectual functioning. She has also had significant mental health problems. A direction has been made under section 39 of the Children & Young Persons Act 1939 prohibiting the publication in any report of these proceedings of her name or any details calculated to lead to her identification.

The inquest is into the death of a firefighter who died on 13 July 2013 while fighting a fire in Manchester city centre. On the afternmoon in question the claimant and a friend smoked a cigarette at the rear of premises which shortly afterwards became engulfed in flames. The two girls approached the police at the time and explained that they thought that they were responsible for the fire. Following a police investigation into the incident, the claimant was charged with an offence of arson. On the day before her trial was due to start, the prosecution offered no evidence and a verdict of “not guilty” was entered at the direction of the judge.

Following the claimant’s acquittal, HM Senior Coroner for Manchester (City Area) resumed his investigation of the death and an inquest is due to commence on 4 April 2016 before the Coroner and a jury. Many witnesses, both factual and expert, will be giving evidence at the inquest. The claimant has been named as a witness. She has also been designated as an “interested person” pursuant to section 47(2)(f) of the Coroners and Justice Act 2009 on the basis that she is a person “who may by any act or omission have caused or contributed to the death of the deceased”. As such, she has rights which include the right to examine witnesses at the inquest (either in person or by a legal representative) and a right to receive relevant documents.

It is apparent that the inquest will be both factually and legally complex. There are a number of other interested persons who are represented by solicitors and counsel. The evidence about the claimant indicates that, without assistance, she lacks the capacity to participate in the proceedings in a way that will enable her effectively to protect her own interests. The Coroner has also expressed concern (in written representations made by counsel on his behalf) that the inquest will take longer and cost more if the claimant is not legally represented. There is no suggestion that the claimant has the means to pay for legal representation unless she receives legal aid.

The provision of legal aid funding is governed by the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (“LASPO”). Proceedings before a coroner’s court do not fall within the definition of “criminal proceedings” in section 15 of LASPO and representation at an inquest is not a service for which civil legal aid is generally available under the Act (see section 9 and Part 1 of Schedule 1). Such a service is available only if the requirements of section 10(2) or 10(4) of LASPO are satisfied. Advocacy in proceedings at an inquest is covered under section 10(4) in certain circumstances, but only for members of the family of the deceased. In other cases civil legal services are available to an individual only where the Director has made an “exceptional case determination” under section 10(2). As defined in section 10(3), this includes a determination:

“(a)

that it is necessary to make the services available to the individual under this Part because failure to do so would be a breach of –

(i)

the individual’s Convention rights (within the meaning of the Human Rights Act 1998) …”

An application for exceptional case funding under this provision was made on behalf of the claimant in this case but was refused by the Director. The decision under challenge is contained in a letter dated 14 September 2015 in which the Director concluded that the requirement set out in section 10(3)(a) of LASPO is not met. Although other grounds were originally pursued, the claimant’s case at the hearing has been put solely on the ground that this conclusion was wrong in law because failure to make representation available to the claimant for the inquest would be a breach of her rights under article 6 of the Convention. It is common ground between the parties that, if the court finds that there would be a breach of the claimant’s article 6 rights, it follows that the Director’s decision was unlawful. Conversely, if there would not be such a breach, the claimant’s challenge to the decision must fail.

Article 6 of the Convention provides as follows:

“Right to a fair trial

1.

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. ...

2.

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

3.

Everyone charged with a criminal offence has the following minimum rights:

(a)

to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b)

to have adequate time and facilities for the preparation of his defence;

(c)

to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d)

to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e)

to have the free assistance of an interpreter if he cannot understand or speak the language used in court.”

The claimant contends that failure to provide her with legal assistance for the inquest would be a breach of her right set out in article 6(3)(c) to be effectively defended by a lawyer in the determination of a criminal charge. The European Court of Human Rights has described the right guaranteed by article 6(3)(c) as “one of the fundamental features” of the right to a fair trial in criminal proceedings guaranteed by article 6(1): see Salduz v Turkey (2009) 49 EHRR 19, para 51.

At first sight, the claimant’s contention faces two obvious objections. The first is that an inquest is not a criminal proceeding. The second objection is that, at least from the point of view of English criminal procedure, the claimant is not someone charged with a criminal offence. As mentioned, she was charged with an offence of arson but she has been acquitted of that offence.

In her measured submissions on behalf of the claimant, Ms Stone answered these objections by pointing out, first of all, that the expressions “criminal charge” and “charged with a criminal offence” in article 6 have an autonomous meaning which does not depend on how the proceedings in question are characterised in domestic law. How these expressions should be interpreted in the context of article 6 has been considered by the European Court of Human Rights in a number of cases, the effect of which was summarised in the judgment of Lord Hope in Ambrose v Harris [2011] 1 WLR 2435, para 62, in the following passage:

“The correct starting point, when one is considering whether the person's Convention rights have been breached, is to identify the moment as from which he was charged for the purposes of article 6.1. The guidance as to when this occurs is well known. The test is whether the situation of the individual was substantially affected: Deweer v Belgium 2 EHRR 439, para 46; Eckle v Germany 5 EHRR 1, para 73. His position will have been substantially affected as soon as the suspicion against him is being seriously investigated and the prosecution case compiled: Shabelnik v Ukraine (Application No 16404/03) (unreported) given 19 February 2009, para 57. In Corigliano v Italy 5 EHRR 334, para 34 the court said that, whilst “charge” for the purposes of article 6.1 might in general be defined as the official notification given to the individual by the competent authority of an allegation that he has committed an criminal offence, as it was put in Eckle's case 5 EHRR 1, para 73, it may in some instances take the form of other measures which carry the implication of such an allegation. In Şubinski v Slovenia (Application No 19611/04) (unreported) given 18 January 2007, paras 62–63 the court said that a substantive approach, rather than a formal approach, should be adopted. It should look behind the appearances and investigate the realities of the procedure in question. This suggests that the words “official notification” should not be taken literally, and that events that happened after the moment when the test is to be taken to have been satisfied may inform the answer to the question whether the position of the individual has been substantially affected.”

Lord Hope went on to say at para 63:

“The moment at which the individual is no longer a potential witness but has become a suspect provides as good a guide as any as to when he should be taken to have been charged for the purposes of article 6.1…”

In Cadder v HM Advocate [2010] 1 WLR 2601, the UK Supreme Court followed and applied the decision of the European Court of Human Rights in Salduz v Turkey (2009) 49 EHRR 19, which held that there had been a violation of article 6(3)(c) in conjunction with article 6(1) by reason of the absence of legal assistance for the applicant when he was questioned while being detained by the police. In so holding the European Court stated (at para 50) that article 6 – especially para (3) – “may be relevant before a case is sent for trial if and so far as the fairness of the trial is likely to be seriously prejudiced by an initial failure to comply its provisions”. The Court emphasised the importance of the investigation stage for the preparation of the criminal proceedings, “as the evidence obtained during this stage determines the framework in which the offence charged will be considered at the trial”, and observed that the vulnerability of an accused at that stage of the proceedings “can only properly compensated for by the assistance of a lawyer whose task it is, among other things, to help to ensure respect of the right of an accused not to incriminate himself” (see para 54).

In Ambrose v Harris, supra, the Supreme Court considered whether the right to legal assistance could apply to the questioning of a suspect who was not in police custody. The Supreme Court held that depending on the circumstances it could and that it is likely to do so when the police have reason to think that the questions asked may well elicit an incriminating response.

Ms Stone submitted that these cases show that article 6 – and in particular article 6(3)(c) – is capable of applying to an investigation or proceeding which is not itself a criminal trial but which has the potential to lead to a criminal trial. In further support of this submission, she cited Serves v France (1999) 28 EHRR 265, where the applicant, together with other soldiers, was the subject of a preliminary inquiry into an incident in which a civilian had been killed. A judicial investigation was begun in which the applicant and two others were charged with murder. This investigation was declared void by a court because of a procedural irregularity, although the preliminary inquiry remained effective. Subsequently, a second judicial investigation was begun in respect of the two other soldiers only and the applicant was summoned to appear as a witness. The European Court held that the applicant was nevertheless the subject of a “charge” for the purposes of article 6(1) and that article 6(1) was applicable to the applicant’s involvement in the proceedings.

Ms Stone also cited Allen v United Kingdom, Application No 25424/09, 12 July 2013. In that case the Court held that an individual whose conviction was quashed on appeal remained a person “charged with a criminal offence” to whom the presumption of innocence guaranteed by article 6(2) applied in the context of a claim to be paid compensation for a miscarriage of justice. The case shows that article 6(2) may apply even following an acquittal in proceedings which are not themselves criminal proceedings, provided there is a sufficient link between the criminal proceedings and the subsequent proceedings. Ms Stone submitted that the same principle applies in relation to the rights guaranteed by article 6(1) and 6(3) as regards proceedings which could be followed by a criminal trial.

Applying these principles to the facts of the present case, Ms Stone submitted that, even though the claimant was acquitted in earlier criminal proceedings of the offence of arson, the reality is that she is still a suspect – as reflected in her designation by the Coroner as an “interested person”. Thus, the circumstances which will be investigated at the inquest include the claimant’s involvement in the starting of the fire and the question whether she caused or contributed to the death of the deceased. In the course of the inquest new information may come to light. Ultimately, the issues for the jury may include the question whether the deceased was unlawfully killed, albeit that the claimant could not be named in any determination. A verdict of unlawful killing would require the Director of Public Prosecutions to consider whether to institute criminal proceedings against the person responsible, whose identity would be obvious from the determination even though not named: see R v DPP ex p Manning [2001] QB 330. Even without such a verdict, the prosecuting authorities could consider whether to seek to institute fresh criminal proceedings on the basis of new evidence which emerges at the inquest.

Ms Stone submitted that in these circumstances, when one looks at the substance of the matter, it is plain that the claimant’s position has been substantially affected such that she should be considered to be the subject of a criminal charge for the purpose of article 6. She submitted that the absence of legal representation at the inquest for the claimant is liable seriously to prejudice the fairness of the proceedings. Having regard to the importance of what is at stake for the claimant, the complexity of the relevant law, facts and procedure, and the claimant’s vulnerability and lack of capacity to represent herself effectively, it is in the interests of justice that she be given free legal assistance. Accordingly, the failure to make such assistance available to the claimant would be a breach of her rights under article 6(3)(c) of the Convention. Hence it follows, Ms Stone submitted, that the Director is obliged to make an exceptional case determination in this case.

For the Director, Mr Chamberlain QC argued that the inquest with which the present case is concerned is not a pre-trial criminal investigation of the kind covered by the line of cases on which the claimant relies. Rather, it is a separate proceeding which falls within a different line of cases where it has been held that article 6 does not apply.

In Saunders v United Kingdom (1997) 23 EHRR 313 it was not suggested that an investigation into the affairs of a company by DTI inspectors appointed under section 432 of the Companies Act 1985 involved the determination of a criminal charge within the meaning of article 6(1). The Court noted (at para 67) that the purpose of the investigation was to ascertain and record facts which might subsequently be used as the basis for action by other competent authorities – prosecuting, regulatory, disciplinary or even legislative – but the Court did not consider that such a “preparatory investigation” was itself subject to the protection of article 6. Hence the privilege against self-incrimination implicit in article 6 did not apply to the proceedings conducted by the inspectors.

Similarly, in R v Hertfordshire County Council ex p Green [2002] 2 AC 412 the House of Lords held that article 6(1) did not apply to a statutory procedure under which a company and its director were required to provide information about the handling of clinical waste. It followed that, as in the Saunders case, the privilege against self-incrimination implicit in article 6 was not available and the only relevance of article 6 was in relation to the use of the information at a subsequent criminal trial. Lord Hoffmann, with whom the rest of the House agreed, distinguished Serves v France, supra, on the basis that the applicant in that case was at risk of being required to incriminate himself in the very proceedings in which he was, for Convention purposes, charged with murder (see p424).

Again, in Beghal v DPP [2016] AC 88 the Supreme Court held that questioning under section 53 of and Schedule 72 to the Terrorism Act 2000 of a person stopped at a port on entering the United Kingdom to see if they appeared to be someone concerned in the commission, preparation or instigation of acts of terrorism was not part of a criminal investigation. The purpose of such questioning was not the accumulation of an evidential case against the subject, which if it followed was a separate matter. The person questioned was not a person “charged with a criminal offence” for the purposes of article 6 and no question of a breach of article 6 therefore arose (see para 69).

That an inquest is an example of such a separate procedure which does not form part of a criminal investigation is, Mr Chamberlain submitted, confirmed by the decision of the European Court in Bubbins v United Kingdom (2005) 41 EHRR 24. In this case the applicant’s brother was shot dead by a police officer. The main issues raised were whether the killing violated article 2 of the Convention and whether or not the inquest complied with the procedural requirements of article 2. An argument was also made, however, that there had been a violation of article 6 in the procedure followed at the inquest. The Court summarily rejected that argument (at para 156) on the basis that article 6 was inapplicable as the inquest proceedings did not involve the determination of a criminal charge against the police officer.

I have no doubt that it would be in the interests of justice for the claimant to be legally represented at the inquest which will soon commence. In view of her young age, mental health problems and limited intellectual capacity, I think it plain that, without legal representation, she will be unable to exercise her rights as an interested person at the inquest in any meaningful or effective way. I think it equally plain, however, that the failure to make representation available to the claimant would not be a breach of her Convention rights because she is not a person “charged with a criminal offence” to whom article 6 applies and because an inquest is not a criminal proceeding or part of a criminal proceeding for the purposes of article 6. I have reached this conclusion for the following reasons.

First, the claimant is not now being treated as a suspect by the police and is not the subject of any extant criminal investigation by the police or any other body. I accept that, as was conceded by the Director, there is a risk that facts brought to light and evidence given at the inquest could prompt the Crown Prosecution Service to consider the possibility of attempting to bring a fresh prosecution against the claimant. That risk is, however, no different in nature from the risk involved whenever an inquiry is made into an incident where the possibility exists that a criminal offence may have been committed. It is clear from the cases referred to at paragraphs 20-23 above that this risk is insufficient to engage article 6.

Second, unlike the cases on which the claimant relies involving the questioning of suspects by the police or by an investigating judge, an inquest is not aimed at obtaining evidence for use in a criminal prosecution. Pursuant to section 5 of the Coroners and Justice Act 2009, the sole purpose of an inquest is to ascertain who the deceased was, how, when, where and in what circumstances the deceased came by his or her death and any particulars required for registration of the death. Neither the coroner nor the jury (if there is one) may express any opinion on any other matter. Furthermore, section 10(2)(a) of the Act specifically provides that a determination of these matters may not be framed in such a way as to appear to determine any question of criminal liability on the part of a named person. It is true that this does not prevent a coroner or jury from finding that the deceased was killed unlawfully and that it may be obvious from the evidence who the perpetrator was thought to be. Such a finding cannot be relied on, however, for the purpose of a criminal prosecution, as it is settled law that findings of a coroner or a coroner’s jury are not admissible as evidence against any person in subsequent proceedings: Bird v Keep [1918] 2 KB 692; Rogers v Hoyle [2015] QB 265, 304, para 34.

It is questionable whether in the present case it would in fact be open to the coroner’s jury to return a verdict of unlawful killing based on evidence about the actions of the claimant. While the criminal proceedings against the claimant which ended in her acquittal were continuing, the coroner’s investigation was suspended pursuant to para 2 to Schedule 1 to the 2009 Act. In circumstances where the investigation has been resumed under para 9 of Schedule 1, para 8(5) provides that a determination by the coroner or a jury “may not be inconsistent with the outcome of the proceedings”. It is strongly arguable that a verdict of unlawful killing based on evidence about the claimant’s conduct would be inconsistent with her acquittal in the earlier criminal proceedings. Such a verdict would also arguably be inconsistent with the presumption of innocence implicit in article 6(2), which may remain applicable in proceedings which follow the conclusion of criminal proceedings in accordance with the principle recognised in Allen v United Kingdom, supra. (Footnote: ¹)

There is a further reason why the claimant’s legal position is significantly stronger by reason of her previous acquittal than it would be if she had never been charged with a criminal offence. Any attempt to bring a further prosecution would have to overcome substantial hurdles. Before the claimant could be prosecuted again for the same offence, an application would have to be made to the Court of Appeal under section 76 of the Criminal Justice Act 2003 for an order quashing the claimant’s acquittal and ordering her to be retried. Pursuant to sections 77-79 of the Act, such an order could only be made if the Court of Appeal was satisfied (1) that there was new and compelling evidence against the claimant in relation to the offence, and (2) that it was in the interests of justice to make the order.

These provisions of the Criminal Justice Act 2003 would not apply to an attempt to prosecute the claimant for a different offence arising out of the same facts – unless that offence was one of which she could have been convicted in the earlier proceedings even though it was not specifically charged in the indictment: see section 75(2). Nevertheless, by reason of the same fundamental principle that a person should not be exposed to double jeopardy, it is generally unfair and/or oppressive to prosecute someone for an offence which arises out of the same or substantially the same facts as an offence of which that person has previously been acquitted, and the court has power to stay such proceedings as an abuse of process: see Connelly v DPP [1964] AC 1254.

In the Saunders case and other cases mentioned at paragraphs 20-23 above where the proceeding in which a person was required to answer questions was not covered by article 6, there was in each case also held to be no privilege against self-incrimination which could be claimed at common law. By contrast, there is such a privilege in inquest proceedings which is specifically conferred by legislation. Rule 22 of the Coroners (Inquests) Rules 2013 (SI 2013/1616) provides:

“(1)

No witness at an inquest is obliged to answer any question tending to incriminate him or her.

(2)

Where it appears to the coroner that a witness has been asked such a question, the coroner must inform the witness that he or she may refuse to answer it.”

For the claimant, Ms Stone argued that the existence of this right is an implicit recognition that someone in the position of the claimant who is an “interested person” at an inquest because she may have “caused or contributed to the death of the deceased” is substantially affected by being summoned as a witness and is therefore to be regarded as “charged” for the purposes of article 6. She also argued that this right will not be practical and effective unless the claimant has the assistance of a lawyer.

I accept that the protection afforded by rule 22 of the Coroners (Inquests) Rules must reflect the reality that incriminating admissions made by a witness at an inquest could expose that person to a risk of subsequent prosecution. As already discussed, however, it is clear that the existence of such a risk is not by itself enough to bring a proceeding within the scope of article 6. In my view, the existence of the statutory protection is a factor which counts against the claimant’s case. It is a further way in which the statutory scheme seeks to ensure that an inquest does not determine or affect criminal liability. It also weakens rather than strengthens the argument that there is a significant rather than merely theoretical risk that the claimant could be prosecuted again as a result of evidence given at the inquest.

The force of those points would be reduced, and there would be real cause for concern, if the absence of legal representation for the claimant will in practice render her right not to incriminate herself nugatory. It has been suggested in the written submissions filed on behalf of the Coroner that the Coroner cannot advise the claimant about which questions she may answer and which she may not and will be limited at the inquest to giving a general warning at the beginning of her evidence that she need not answer any question which may tend to incriminate her in relation to a criminal offence. This suggestion is, however, a misconception, which it is important to correct. Rule 22(2) of the Coroners (Inquests) Rules, quoted above, makes it expressly clear that the Coroner not only can, but must, advise the claimant that she may refuse to answer a question which would tend to incriminate her. While I accept that the claimant would have greater protection and the Coroner’s task would be assisted if the claimant were to be represented by a lawyer, it nevertheless represents an important safeguard that it will be part of the Coroner’s responsibility at the forthcoming inquest to seek to ensure that her privilege against self-incrimination is effective.

If, notwithstanding this protection, the claimant were to give an answer which tended to incriminate her, and if there were to be a further attempt to prosecute the claimant, the question would arise whether the incriminating answer would be admissible in evidence against the claimant at a future criminal trial.

Under section 78 of the Police and Criminal Evidence Act 1984 evidence relied upon by the prosecution in a criminal trial may be excluded if it appears to the court that, having regard to all the circumstances, including those in which the evidence was obtained, its admission would have such an adverse effect upon the fairness of the proceedings that it should not be admitted. In Beghal v DPP, supra, the Supreme Court held that article 6 has the effect that any use in a criminal prosecution of answers obtained under compulsion of law will be a breach of the right to a fair trial. Accordingly, where, as in that case, there was no right to refuse to answer questions, evidence thereby obtained would inevitably be excluded at any subsequent criminal trial (see para 66).

This reasoning does not directly apply in the present case, where there is a privilege against self-incrimination. Mr Chamberlain submitted that it would, however, equally be unfair to admit incriminating evidence in circumstances where there is such a privilege which is not claimed unless it can be shown that the privilege has been freely waived. He further submitted that, to establish a waiver, it would have to be shown that the claimant made a voluntary, informed and unequivocal choice not to rely on her right not to incriminate herself. In support of that contention, he cited Millar v Dickson [2002] 1 WLR 1615, paras 31-32; and see also Salduz v Turkey (2009) 49 EHRR 19, para 59. Those authorities are not directly in point, as they are concerned with the waiver of rights guaranteed by article 6 and I have concluded that article 6 rights are not applicable to the inquest proceedings. But I agree that there would nevertheless be a powerful argument that, unless the claimant could be shown to have chosen of her own free will to waive her right not to incriminate herself, such evidence should be excluded under section 78. Given the claimant’s young age, limited intellectual capacity and vulnerability, it would be a hard task to demonstrate that the right not to incriminate herself had been waived in circumstances where she was unrepresented.

In the light of these considerations, the claimant’ privilege against self-incrimination is a further reason why in my view her situation is not substantially affected in a way that could engage article 6.

For these reasons, I conclude that the claimant is not a person “charged with a criminal offence” for the purpose of article 6(1) and (3) of the Convention and that the forthcoming inquest is not a proceeding which (save potentially as regards the presumption of innocence arising from the claimant’s previous acquittal) falls within the scope of article 6. As desirable as it is, therefore, that the claimant should be legally represented at the inquest, it cannot be said that she has a Convention right to be provided with free legal assistance. It follows that the Director does not have the power to make an exceptional case determination in this case under section 10 of LASPO. The claim must therefore be dismissed.