The case for non-means tested legal aid
By Sara Chitseko:
There have been 1750 deaths in police custody or following police contact in England and Wales since 1990. The police have never been held accountable for these killings. In recent months, there has rightly been increasing scrutiny on policing and the violence and racism embedded within the institution. But what is often missing from public discourse is an awareness of the experience of bereaved families who not only have to deal with the trauma of losing a loved one; but who are also then subject to unjust legal proceedings - the cost of which, many have to pay for themselves.
Inquests are the primary way for families to find out what happened to a loved one. They are falsely presented as an objective way to establish the “facts” when someone dies while in the “care” of the state. This includes in police custody, prisons, immigration detention settings and mental health settings. In reality, inquests take place on a completely unequal footing in which the state has publicly funded, unlimited access to the best legal experts, while legal aid for families is only granted on a means tested basis. This leaves many facing extreme financial hardship; having to fundraise for support; or having to represent themselves in legal proceedings.
Granting families access to non-means tested legal aid would not only make the justice process more equitable for families, but also support desperately needed structural change in the justice system. The state and corporate bodies prioritise damage limitation and defending policies and practices while attempting to shut down lines of inquiry. Families main objective tends to be to prevent future deaths. In this sense, they fight to ensure due diligence is paid to harmful practices and mistakes, as well as providing important context in relation to any mental health issues, or other personal circumstances which may otherwise be overlooked.
Following bereavement, many families set up justice campaigns and work to lobby the government for better accountability of state actors. In a recent Telegraph feature, Marcia Rigg, the sister of Sean Rigg, who was killed in Brixton police station in 2008, called for the eradication of prone restraint and choke holds. The mother of Jermaine Baker, who was shot by police in 2015, has vowed to get justice by ensuring an appeal challenge focuses on when police use of force is justified. Families also build independent community based infrastructure for mutual support and advice. The family of Mikey Powell established ‘The National Mikey Powell Memorial Family Fund,’ the first fund of its kind to support families with the financial burden of pursuing justice. These are only some examples of how families have been campaigning for systemic change and filling the gaps where bereaved families have been unable to access legal-aid.
In 2017, a report into deaths in police custody conducted by Dame Elish Angiolini QC was published. It confirmed racial disproportionality in police restraint deaths and a key recommendation was non-means tested legal aid for families. She wrote, “For the state to fulfil its legal obligations of allowing effective participation of families in the process that is meaningful and not “empty and rhetorical” there should be access for the immediate family to free, non-means tested legal advice, assistance and representation immediately following the death and throughout the Inquest hearing.” Angiolini is not the only one who has supported this view. Bishop James Jones, Lord Bach and the Joint Committee on Human Rights, among many more are just some others that have also made this case.
Despite this, in February 2019, the Ministry of Justice announced “that (they) will not be introducing non-means tested legal aid for inquests where the state has representation.” This decision demonstrates how the “justice” system operates with a tiered structure, negating state accountability at the expense of families and communities. The inequality between families and state actors in inquests pertaining to deaths in custody is evidence of a failing justice system more broadly. Urgent action must be taken to redress this harm. The case for non-means tested legal aid is not only robust, but has the potential to save lives.
To support the campaign for non-means tested legal aid for families, please sign INQUEST’s petition here.