CO/4149/2007 
Neutral Citation Number: [2007] EWHC 2106 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION 
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2A 2LL 

Wednesday, 18 July 2007
 
B e f o r e: 

JAMES GOUDIE QC
(Sitting as a Deputy High Court Judge)
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Between: 
THE QUEEN ON THE APPLICATION OF ANDREW JONES 
Claimant

v 

LEGAL SERVICES COMMISSION 
Defendant 
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Mr Mark George (instructed by Birnberg Peirce) appeared on behalf of the Claimant 
Ms Nathalie Lieven QC (instructed by LSC) appeared on behalf of the Defendant 
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J U D G M E N T
1.	THE DEPUTY JUDGE:  This is an application for judicial review, lodged on 21 May 2007 pursuant to permission granted by Calvert Smith J on 19 June 2007.  The claimant seeks to challenge the refusal of funding to enable him to be represented at the coroner's inquest into the murder or manslaughter of his son, Andrew William Jones ("Mr Jones"), an inquest which is due to begin in Liverpool on 10 September of this year.  
2.	Exceptional funding is sought pursuant to section 6(8)(b) of the Access to Justice Act 1999 ("the 1999 Act").  That provision gives the Lord Chancellor, now through the Ministry of Justice, a discretion to authorise the defendant Legal Services Commission ("the Commission") to fund the provision of relevant services in an individual case if the Commission request him to do so.  It is the Commission's refusal so to request which is the subject matter of the present challenge.  The basis of the challenge is Wednesbury unreasonableness/irrationality.  
3.	Section 6(8)(b) of the 1999 Act provides an exception to the exclusion of funding for advocacy in coroners' courts.  Under the Funding Code made under the 1999 Act, the Commission will be prepared to grant funding to cover advocacy at an inquest where "funded representation for the family is likely to be necessary to enable the coroner to carry out an effective investigation into the death as required by Article 2".  Article 2 of course is a reference to Article 2, the right to life, in the European Convention on Human Rights, which has effect in domestic law pursuant to the Human Rights Act of 1998.  
4.	The funding code continues as follows at paragraphs 4 and 5: 
"4.  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: 
 (i) 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. 
 (ii) 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. 
 (iii) 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. 
5.  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." 
5.	The claimant submits, relying on the European Court of Human Rights, House of Lords, and other authority, that Article 2 is engaged in this case, notwithstanding that the state was not involved in the death.  The defendant submits that the United Kingdom's basic obligation under Article 2 is satisfied by the criminal law structure, and that in this case there were criminal investigations, and indeed a prosecution, albeit unsuccessful.  
6.	The facts are not in dispute.  Mr Jones was unlawfully killed in Liverpool on 9 March 2003.  He was out with friends in the city centre when some time after about 3am he was confronted by three or four other men.  For no apparent reason they set upon Mr Jones, and he was felled by a punch to his jaw, which was hard enough to break his jaw.  When he fell to the ground he hit his head on the ground with such force that his skull was fractured.  He died later in hospital from his injuries without gaining consciousness.  There is no doubt how he came to die.  There is no doubt that he was killed unlawfully.  
7.	Following a police investigation, four men were arrested, however only one of those, a man named James Roberts, was charged with murder.  This charge was subsequently reduced to manslaughter.  He appeared for trial at Liverpool Crown Court in October 2003.  It is clear from the witness statements that have recently been provided by the coroner to the family's solicitors that there was a degree of confusion about the identity of Mr Jones' attackers, and in particular the identity of the man who had delivered the fatal punch.  Some of this confusion may have been deliberate, as several of the witnesses were friends of the four suspects who were arrested.  
8.	At the trial, the prosecution appears to have relied almost exclusively on the evidence of one of Mr Roberts' friends, to whom it was said Mr Roberts had confessed to throwing the punch at Mr Jones.  However, when called to give evidence, it seems that this witness was a reluctant witness, whose evidence was not at all convincing, and who did not, in the event, come up to proof.  The unsatisfactory nature of the prosecution evidence was compounded when two independent witnesses, who had originally expected to be called by the prosecution, were tendered to the defence, as the descriptions they had given of the principal assailant did not match the description given by others of what Mr Roberts was wearing on the night.  
9.	In the light of this state of the evidence, at the end of the prosecution case a submission was made on behalf of the defendant of no case to answer.  This submission was upheld, and accordingly Mr Roberts was found not guilty.  No one else having been charged then or subsequently in respect of Mr Jones' death, the person or persons responsible for the fatal and unlawful attack on Mr Jones have not been brought to justice.  
10.	In November 2004, the coroner agreed that he would hold an inquest into Mr Jones' death.  This occurred following representations from and on behalf of the family ‑‑ representations that Article 2 required an effective official investigation of the circumstances surrounding Mr Jones' death.  
11.	On 9 November 2006, following further police investigations in the meantime, the coroner held a pre‑inquest hearing at which Mr Roberts and the three other men who had been arrested as part of the original police investigation appeared to answer summonses which had been issued for their attendance.  The coroner declared all four to be interested parties for the purposes of the inquest.  
12.	On 6 November 2006, the claimant's solicitors lodged an application for exceptional funding in order to enable their client to be represented at the inquest.  The Commission responded on 22 November 2006 and declined to recommend any award of exceptional funding to, at that time, the Department for Constitutional Affairs.  
13.	By letter dated 6 December 2006, the coroner wrote to the claimant's solicitors, indicating that, for his part, he considered that it was essential in the interests of justice that the claimant should be represented at the inquest.  On 11 December 2006, the claimant's solicitors sought a review of the Commission's decision to refuse exceptional funding.  On 28 February 2007, the defendant replied, indicating that they remained of the view that in this case an award of exceptional funding was not appropriate.  
14.	On 10 April 2007, a letter before claim was sent to the defendant under the pre‑action protocol governing claims for judicial review.  The defendant replied on 26 April 2007, indicating that the defendant remained of the view that this case was not suitable for exceptional funding.
15.	The decision letter, dated 28 February 2007, states: 
"As explained in the Commission's refusal letter of 22 November 2006, the requirements for consideration of the funding for representations in this type of case are that either (a) there is a significant wider public interest as defined by the Public Funding Code Guidance in the applicant being legally represented at the inquest, or (b) 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 ECHR." 
16.	Under the heading "Significant wider public interest", the decision letter states: 
"You have not stated that this case meets this criterion.  In any event I do not consider that the case has the potential to provide direct benefit to members of the public other than your client."
17.	That heading is not relied upon and I need say no more about it.  Under the heading "Effective investigation", which is material for present purposes, the decision letter states: 
"You indicate that you consider Article 2 to be engaged.  However there is no suggestion that agents of the state were involved in the death.  In relation to whether any investigative obligation under Article 2 arises in respect of the death of an individual, the engagement of Article 2 would appear at best uncertain." 
18.	So that is the position taken in the decision letter in relation to the question as to whether Article 2 is engaged, namely that that would appear to be at best uncertain.  
19.	The decision letter however continues as follows: 
"The case is not marginal in terms of funding on grounds of significant wider public interest or Article 2 ECHR.  Whilst there may be unusual legal aspects to the inquest, there is no indication of complex expert evidence to be considered.  Although the coroner has stated that the family should be represented, I am not satisfied that it is necessary to enable the coroner to carry out an effective investigation into the facts of this case.  In particular, whilst your clients may wish that particular legal submissions are made in order to direct the course of the inquest, these are matters that are in principle within the coroner's remit.  Alternatively, written submissions on such legal issues could be provided by you under the Legal Help scheme." 
20.	The decision letter refers to the letter from the coroner, stating that representation for the family at the inquest is in the interests of justice, notes the Funding Code Guidance in relation to the coroner's views, but concludes that the test for inquest funding is not satisfied.  The decision letter continues: 
"I do accept the exceptional importance of this inquest for your clients.  This is often true of inquests following tragic deaths.  For that reason, overwhelming importance to the client is not a criterion for recommending funding of inquests in any event." 
21.	The decision letter concludes: 
"As you will know, your time in preparing your client for the inquest can be funded under legal help, which will cover the making of written submissions to the coroner on behalf of your client and otherwise assist your client in understanding the proceedings.  I consider that the availability of legal help will ensure that your client can participate in the inquest to the appropriate degree.  It is only advocacy at the inquest that is an excluded service." 
22.	The claimant's starting point is Article 2 of the Convention and the decision thereon of the Strasbourg Court in Jordan v United Kingdom [2001] 37 UHRR 52.  The court said at paragraph 105: 
"The obligation to protect the right to life under Article 2 of the Convention ... requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force ... The essential purpose of such investigation is to secure the effective implementation of the domestic laws which protect the right to life ... What form of investigation will achieve those purposes may vary in different circumstances ..."
23.	At paragraph 107 the court said: 
"The investigation must also be effective in the sense that it is capable of leading to ... the identification and punishment of those responsible ... This is not an obligation of result, but of means.  The authorities must have taken the reasonable steps available to them to secure the evidence concerning the incident ... Any deficiency in the investigation which undermines its ability to establish ... the person or persons responsible will risk falling foul of this standard." 
24.	Jordan itself indicates that these principles do not depend for their applicability upon state agencies being involved in the death.  In R(Amin) v the Secretary of State for the Home Department [2004] 1 AC 653, Lord Bingham of Cornhill said at paragraph 25 that an investigation to satisfy Article 2 must have five features, which include that the investigation must be effective, and that the next of kin must be involved to an appropriate extent.
25.	The claimant submits that the investigation carried out by the police, the subsequent prosecution of Mr Roberts and the failure of the police to bring the murderers of Mr Jones to justice did not amount to an effective investigation; it was therefore not sufficient to discharge the obligation under Article 2 and was in fact a violation of Article 2; that the fact that the coroner has decided to hold an inquest into this case is evidence that there has not yet been an investigation that is sufficient for the purposes of Article 2; and that the availability of legal help to assist the family with making written submissions is no substitute in this case for funded representation at the inquest.
26.	The defendant's skeleton argument identifies the three issues which arise under Article 2.  First, to what degree has any investigative duty under Article 2 been fulfilled by the police investigation?  Second, what is the scope of any remaining duty on the coroner?  Third, is there a requirement for the family to be legally represented?  
27.	On the first of these issues, the defendant rightly accepts that some obligation can arise under the investigative duty, even in cases such as the present where there is no state responsibility for the death.  The question is as to the scope of that duty in a case where there is no state responsibility.  The defendant submits that, absent any allegation of state responsibility in the death, the scope of the investigative duty is more limited.  The defendant refers to the decision of the European Court of Human Rights in Menson v UK (app 47196/99), a judgment of 6 May 2003.  In that case the court said: 
"The applicants' case is ... to be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion ... or in which the factual circumstances imposed an obligation on the authorities to protect an individual's life, for example where they have assumed responsibility for his welfare ... or where they knew or ought to have known that his life was at risk ... 
However the absence of any direct State responsibility for the death of Michael Menson does not exclude the applicability of Article 2 ...  Article 2 imposes a duty on the State to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions ... 
... the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life‑threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results ... the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life ... "
28.	The question is whether the investigative duty has been fulfilled by the police investigation in this case.  I am not satisfied that it has been.  This is not because the prosecution did not lead to a conviction.  Such a situation, or even there being no prosecution at all, does not of itself mean any failure in the investigative process.  However, an inadequate investigation will not do, and on the material before me, I am not satisfied that the investigation was adequate, either before the trial or since.  I am satisfied that there is, pursuant to Article 2, a role for the coroner, whether or not it is Article 2 that has prompted him to hold the inquest.  
29.	However, in considering whether the family must have funding for representation, which is the issue before me, it is necessary to have in mind both that the coroner's role is inquisitorial, and the limitations on the role of the inquest in a case where there is no alleged state responsibility for the death, having regard to section 11(5) of the Coroners Act, the Coroners Rules (in particular rule 42), and the decision of the Court of Appeal in R v Her Majesty's Coroner for North Humberside ex parte Jamieson [1995] QB 1.  
30.	The defendant submits that the coroner should not investigate the issue of which named individual was responsible for the death, and that in an Article 2 case, R(Middleton) v West Somerset Coroner [2004] 2 AC 182 supports this conclusion.  I broadly accept that submission, but nonetheless it may be established that an individual appears to be the person responsible, and notwithstanding the limitations on the verdict which a coroner or a coroner's jury may express and the observations which they may make, a possible outcome of an inquest is that the coroner adjourns the inquest in order that a reference may be made to the Director of Public Prosecutions or the Crown Prosecution Service with a view to consideration being given to the prosecution of a particular individual or individuals.
31.	The defendant further submits that alleged failures in the police investigation are not a matter for the coroner, but rather for the police complaints processing, as for example was operated ultimately in the Menson case to which I have referred.  I accept that the position is broadly as the defendant submits, but nonetheless the question of the adequacy or otherwise of the police investigations, and what the coroner will be inquiring into, cannot realistically be put into entirely watertight compartments.  
32.	The crucial question is whether the family need to be represented in terms of oral advocacy; that is, represented beyond what the legal help scheme can provide.  This question has been considered by Richards J (as he then was) in R(Challender) v the Commission [2004] EWHC 925 Admin; by the Court of Appeal in R(Khan) v Secretary of State for Health [2004] 1 WLR 971, especially at paragraph 74; and by Owen J in R(Main) v Minister for Legal Aid [2007] EWHC 742, especially at paragraph 50.  
33.	It is clear, in my judgment, especially from paragraph 68 in Challender, that the test is whether there are exceptional circumstances ‑‑ exceptional factual and/or legal complexity so that legal representation is needed at the inquest in order to ensure an effective investigation, with the next of kin involved to an appropriate extent.  
34.	Paragraphs 3.13 to 3.17 of the claimant's skeleton argument addresses the question of what oral submissions to the coroner might be expected to achieve.  I am not, however, persuaded that there is exceptional factual or legal complexity.  At paragraph 3.18, the claimant suggests that insufficient weight has been given to the views of the coroner.  However, the defendant is right that the coroner's views are not determinative.  The defendant had to take those views into account.  They did.  The decision, however, was for them, not him.  
35.	Ultimately, the question before me is whether the decision to refuse funding is irrational.  I consider that the key passage in the decision letter is as follows: 
"Whilst there may be unusual legal aspects to the inquest, there is no indication of complex expert evidence to be considered.  Although the coroner has stated that the family should be represented, I am not satisfied that it is necessary to enable the coroner to carry out an effective investigation into the facts of this case.  In particular, whilst your clients may wish that particular legal submissions are made in order to direct the course of the inquest, these are matters that are in principle within the coroner's remit.  Alternatively, written submissions on such legal issues could be provided by you under the Legal Help scheme."
36.	In my judgment, that is not an irrational approach or an irrational conclusion.  I therefore ultimately dismiss the application for judicial review.
37.	MS LIEVEN:  My Lord, I am not instructed to ask for costs given the situation.  I think the only other order, which your Lordship has already indicated, is to dismiss the application.  I do not think there are any consequential orders from my side.
38.	THE DEPUTY JUDGE:  Mr George, anything else?
39.	MR GEORGE:  My Lord, I think so far as my client is concerned, I need to ask your Lordship for a detailed assessment of the claimant's costs in this case.
40.	THE DEPUTY JUDGE:  Yes.  Thank you both very much for your assistance, both in writing and orally.