Do right, fear no one?

‘If deaths are not investigated, then the authorities cannot be held to account and democracy is threatened. And if deaths are not investigated, we are not a society that values human life.’

Do Right and Fear No One: a life dedicated to fighting for justice explores my 30+ year career as a barrister and critically examines some of the legal and social issues affecting the publicly funded Bar. At times it has been a painful and uncomfortable journey but one I would have little hesitation doing again.

There are several recurring themes throughout the book, including deaths in custody, the mistreatment of young Black men at the hands of the state, the representation of the underdog, our human rights under threat, a lack of proper access to justice, inequality of arms, an unfair legal aid system, and the lack of diversity in our profession. This article for Counsel magazine highlights some of these themes.

David v Goliath legal cases

As I state in a recent Gresham lecture, in the courtroom, sometimes David prevails over Goliath. I have represented many Davids against many Goliaths. I have represented many ordinary people taking on the might of large and powerful institutions, people who have risked everything to fight for justice against all the odds.

It is great when right prevails, but it’s important to understand that in real life, the underdog doesn’t always win. There often isn’t the Hollywood happy ending that we have come to expect from watching legal dramas. Many cases leave clients feeling utterly dismayed and confused; their hopes dashed by a legal system which doesn’t deliver justice.

There is no point pretending that every case is a feel-good story where right triumphs over might – that would be doing a disservice to future lawyers and the public. Life and the legal system is not black and white but many shades of grey.

We operate in a legal system which was built by and for powerful elites, and where the odds are often stacked against small clients, especially if their pockets are not as deep as the state or corporate institutions they are trying to enforce their rights against.

On the other hand, when they do win, ordinary people taking on powerful interests have changed the world much for the better. The law reports are full of the stories of ordinary, everyday folk who have kept up their fight for justice even when the road ahead seemed hopeless, and who have ultimately prevailed.

So, what has the HRA 1998 done for coronial law?

Our system of sudden death investigations, also known as inquests, is a good barometer of the importance of the Human Rights Act 1998 (HRA) and its influence on our domestic legislation. Without the HRA, which is presently under challenge with this government’s agenda, the modern inquest – with disclosure, legal aid funding and accountability – would not exist.

It is important to reflect upon and assess just how important inquests are as a method of investigating sudden and unexpected deaths in England and Wales. We expect accountability for the people in power whose decisions created the environment in which needless deaths occur. If deaths are not properly investigated, then the authorities cannot be held to account. It should be obvious why the investigation of deaths is central to a democratic and free political system. We expect the following:

• First, we expect that the state will carry out a timely investigation. So that evidence is not lost, or memories fade. Families can have answers without having to wait for years.
• Second, we expect that any investigation carried out is full and proper.
• Third, we expect equality of arms. This means that the parties should be starting on a level playing field. The bereaved family should have the same opportunity to participate in the proceedings, put forward evidence and arguments, and question witnesses as is given to the agents of the state involved in the death.
• Fourth, we expect the state to provide adequate disclosure of the evidence in its possession.

However, until the passing of the HRA, many of the above expectations were not met by inquests. I give a stark example of this in my book, where in the mid-1990s I turned up at court with merely a back sheet and no disclosure on a case where the deceased died following restraint. This would be unthinkable today.

Before the HRA, there was a lack of fairness. There was no right to legal aid, there was no right to disclosure, and there was no equality of arms between different interested persons in an inquest. Further, the scope of the inquest was narrow. The court could only decide ‘by what means’ the deceased came by their death, but not ‘in what circumstances,’ even in a case where an individual died at the hands of the state. So the inquest’s purpose was not really to hold the state to account.

This situation was dramatically changed once the European Convention on Human Rights (ECHR) was directly incorporated into English law by the HRA. The jurisprudence established that Article 2 of the Convention, the right to life, is not simply a right not to be killed. It also imposes positive obligations on the state. There are three main positive obligations:

1. The ‘systems duty’ – the duty to have an adequate system to protect life.
2. The ‘operational duty’ – in some circumstances, where the state knows or ought to know that there is a ‘real and immediate risk’ to someone’s life, it may have a duty to take reasonable measures to protect them.
3. The ‘investigative duty’ – this applies where a person dies at the hands of the state, or in other circumstances that engage the state’s responsibility.

Undoubtedly, the biggest driver of change in the past 20 years has been the European Court of Human Rights’ (ECtHR’s) case law following the implementation of the HRA.

Securing equality of arms

Equality of arms means procedural fairness. In short, that the parties to a legal proceeding should be starting on a level playing field. At the hearing, they should each have the opportunity to call witnesses, and question the other’s witnesses. Neither should be put at a procedural disadvantage.

In Jordan v UK 24746/94, the ECtHR was very critical of the inquest process in Northern Ireland. It said, about the non-disclosure of witness statements:

‘The previous inability of the applicant to have access to witness statements before the appearance of the witness must also be regarded as having placed him at a disadvantage in terms of preparation and ability to participate in questioning. This contrasts strikingly with the position of the [Royal Ulster Constabulary] who had the resources to provide for legal representation and full access to relevant documents. The Court considers that the right of the family of the deceased whose death is under investigation to participate in the proceedings requires that the procedures adopted ensure the requisite protection of their interests, which may be in direct conflict with those of the police or security forces implicated in the events .’

This was a step forward, as a recognition that families were at a major disadvantage in the traditional inquest process.

Bereaved families in inquests have now been given a right to disclosure of key documents under rule 13 of the Coroners (Inquests) Rules 2013.

Legal aid for inquests

Another way in which the HRA has brought greater equality of arms in inquests is with the provision of legal aid. Prior to October 2000 there was no legal aid for inquests.

When a bereaved family has no legal aid this can be devastating for that family at such a sensitive time. A bereaved family member, quoted in the charity INQUEST’s February 2019 briefing on legal aid, said:

‘We had to do everything ourselves. We had no lawyer at the inquest. Those three weeks were the most terrifying thing I’ve ever done in my life. I had to cross examine witnesses, it was absolutely terrifying, and they had lawyers. There needs to be a level playing field; a family member should never be put through that .’

Contrast this with the funding to which the state has access. State institutions are usually concerned to protect themselves from reputational damage and civil liability, which we have seen from Hillsborough to Grenfell. So, in virtually every case, the institution implicated in the death will be represented at the inquest. But the bereaved family of the deceased are often not legally represented at all.

From November 2001, the Lord Chancellor under the Access to Justice Act 1999 began to fund legal representation at inquests. This measure was to bring inquests in line with the UK’s obligations under the ECHR.

The position was improved by the case of R (Khan) v Secretary of State for the Home Department [2003] EWCA Civ 1129 in which the Court of Appeal held, exceptionally, that the lack of legal aid for the bereaved family of a child who died in hospital had breached the State’s obligations under Article 2. From 1 December 2003, the new regulations gave the Lord Chancellor power to waive the means test. From then on, families could, exceptionally, get legal representation at an Article 2 inquest. Accordingly, the system improved. It is still far from perfect, and arguably the provision of legal aid could go further, but there was a definite improvement compared to the pre-HRA position. Today, an ‘Article 2 inquest’ is more expansive and fairer than a normal (domestic) inquest, and is the primary means by which the state carries out its investigative obligation. None of this would have been possible without the HRA.

Before the HRA, the families of the deceased had few rights in an inquest. They had no automatic right to disclosure and no access to legal aid – while the institutions responsible for the death were often represented by a high-powered legal team. The jurisprudence of the ECtHR, and its implementation in the UK, has helped to put the bereaved families on a more level playing field. But the progress that has occurred would not have happened without the HRA.

A lot has changed in the last 30 years, as illustrated in Do Right and Fear No One. However, we have so much further to go. I can only hope that the next 30 years brings about greater equality and diversity in our great profession and among our judges, particularly in the higher courts. But that is a book for someone following in my footsteps to write.