On 20 August 2015 the Lord Chancellor published revised guidance on civil legal aid funding in inquest cases. It takes into account the conclusions of the Court of Appeal in the case of Letts v The Lord Chancellor  Inquest Law Reports 15, and now recognises that there are some categories of case in which the mere fact of death gives rise to a possibility of State responsibility and this suffices to trigger the Article 2 procedural duty to conduct an independent investigation.
The previous guidance had suggested that an arguable breach of a substantive duty had to be identifiable to engage the need for an Art 2 inquest. It is now made clear that there are certain categories of death where the automatic duty arises whether or not the evidence in the case discloses an arguable breach of any of the substantive obligations.
The guidance advises that this includes AT LEAST:
- all intentional killings by state agents (e.g. a police shooting);
- all violent deaths and suicides of persons detained in police or prison custody or during the course of arrest or search3; and
- all violent deaths and suicides of persons detained in mental hospitals.
The above categories are clearly not meant to be exhaustive of all the automatic trigger situations – as following Letts the suicide of a voluntary psychiatric patient is also capable (depending on the facts) of automatically triggering the Article 2 procedural duty.
Mr Letts had killed himself three days after leaving the hospital where he had been a voluntary patient. There was no need for the court to determine in his particular case whether the duty of investigation had been automatically triggered, as in any event Civil Legal Aid had been granted by the time of the JR challenge to the guidance. Hence the precise circumstances in which the suicide of a voluntary psychiatric patient will automatically trigger the procedural duty remains unclear. Factors that seem likely to be relevant are whether there was an unreasonable failure to detain the patient (i.e. where but for the breach that is being alleged the patient would have fallen within one of the automatic categories) and, where a patient kills themselves in the community, how recently they had been discharged from the hospital.
Where the LA caseworker considers that the case falls within one of the categories in which the Article 2 procedural obligation is automatically triggered, or that it arguably does, they then still must proceed to the second stage of the funding test: is funded representation for the family of the deceased required to discharge the procedural obligation?
In respect of that latter stage a Coroner sympathetic to the plight of the unfunded family who recognises how legal representation for the family can improve the efficiency and quality of their investigation may, if requested to do so, write a letter of support explaining why the complexity of the inquest requires representation for effective involvement of the family.