Shoreham Air Show Crash: Access to Justice

Huw Merriman Excerpts

Tuesday 9th January 2018 Westminster Hall

[Tim Loughton]

The hon. Gentleman makes a good point. I pay tribute to him and other neighbouring MPs who had constituents who were victims, as I extraordinarily did not. We have been able to act together to give some support and comfort to the families involved. Indeed, there was a public appeal that raised some £200,000, which has been distributed through the Sussex Community Foundation, and I have been on the board of that. I have seen at first hand the huge impact that this has had on families for whom the victims were the breadwinners. As well as going through the trauma of grieving, they have had to reinvent their lives. We need to be as supportive of these people as possible so that they can get through the formal processes, get their lives back on track and get some sort of closure. That is just not happening, which is why I have come back today to raise this matter again in the House.

As I have said, it is not assured that the inquest will go ahead this year, delaying yet further the opportunity for the families to get to the bottom of exactly what happened and achieve some degree of closure.

[Huw Merriman (Bexhill and Battle) (Con)]

Will my hon. Friend give way?

[Tim Loughton]

I will, and then I want to make some progress before I run out of time.

[Huw Merriman]

I thank my hon. Friend for giving way, for leading all of us who have bereaved constituents and for the work he has done, particularly for my constituents in Heathfield. I think he is building on this case already, but I put it to him that with an inquest where all the others appearing will be represented and may have a certain drive to ensure that the inquest goes in one particular direction, and where there will be no prosecution as there would be in a court, it is even more imperative that the families get legal aid, to ensure that there is some semblance of balance for the coroner and guidance.

[Tim Loughton]

My hon. Friend makes a very good point, to which I will come shortly. I again thank him for co-signing the letter to the Prime Minister and for joining us in this whole enterprise.

The families still have no idea whether anyone will be charged and held responsible for the deaths of their loved ones. That is disgraceful. There has been ping-pong between the police and the CPS as to whether files and complete information have been presented to the CPS. It was confirmed only at the beginning of December that all the files required were with the CPS. Of course we want a thorough investigation of what happened, but does it really need to take this long? The CPS needs to make a decision one way or the other as to whether a prosecution can go ahead, and if one cannot, it needs to explain fully to the families why there are not grounds for a prosecution. We are in a state of limbo that is holding up the entire process, which is completely unacceptable. Frankly, I would have hoped that the Law Officers would have played some part in nudging, at least, the CPS to expedite this matter.

Twenty-seven months on from the debate in which I urged that the first priority must be to give the families the support that they need in these difficult times, it is hard to see how that has been achieved as it should and could have been. I am afraid that the Prime Minister’s words when she stated that the families of the victims of a public disaster should be able to have proper representation ring rather hollow.

Why is the decision by the Legal Aid Agency not to permit funding under the exceptional case funding provisions introduced by LASPO in 2013 so patently wrong and unjust? Exceptional case funding is currently available for categories of law that are not in scope for legal aid and where failure to provide legal services would be in breach of an individual’s rights, within the meaning of the Human Rights Act 1998, or other enforceable EU rights relating to provision of legal services. Inquests have never fallen within the main body of legal aid provision. Currently, legal aid for inquests is available only at the discretion of the Legal Aid Agency under the exceptional case funding provisions, so this case is just the sort of eventuality that was envisaged when the fund was set up in the original LASPO Act. It has nothing to do with cuts in legal aid funding, as some have tried to claim.

The Law Society has supported this application and strongly believes that bereaved families should have access to legal representation where possible. As it has put it:

“The current definition of exceptional case funding does not provide an adequate ‘safety net’ for inquests. Applications for exceptional funding are highly complex and time consuming, requiring applicants to have an understanding of human rights law, and in the case of inquests, be able to show that there is an Article 2 (right of life) issue or a wider ‘public interest’”.

The application has also been supported by the West Sussex coroner, Penny Schofield, who specifically points to problems with the families uniquely being deprived of legal representation, which could lead to a more time-consuming inquest, costing more and denying justice to all on a level playing field. She has said:

“This is a highly complicated case. It involves areas of aviation law which are complex and technical in nature. Families will struggle to participate in the Inquest in any meaningful way without the assistance of legal representation.

The Inquest will engage a number of complex legal issues including article 2 of the European Convention on Human Rights. It is further complicated by the fact that I will be sitting with a Jury.

If the families are not represented it is likely that the Inquest, which is already likely to last up to 8 weeks, will take considerably longer…The outcome of this Inquest will have a wider public interest. The Inquest will allow for the identification of dangerous practices and/or systemic failings that could potentially be a significant risk to life, health or safety to others for those attending airshows or working in this environment in the future.”

She finishes her letter by saying:

“I would fully support any application for funding and would emphasise that in my view it is essential not only for the families but for the wider public at large.”

One cannot put it more clearly than that. Furthermore, other, non-family interested parties that are public bodies, and for which legal representation will come from public funds, include Sussex Police, the Civil Aviation Authority, the air accidents investigation branch and the Health and Safety Executive. They will get legal representation paid for out of public funds, but the family of a victim does not qualify.

I pay tribute to Stewarts Law, the solicitors who have represented most of the families pro bono and who have made the formal application for legal funding. They made a case for legal representation to involve an aviation specialist Queen’s counsel, supported by a junior counsel and solicitors from the five firms involved with the families across the board. They make the case that

“without the support of effective legal representation, it will be impossible for the families to participate in the inquest.”

They also make the case that funding should be required by article 2 of the ECHR, the right to life. As has already been said, the AAIB report raised serious questions about the protection of that right by certain public agencies—the systemic failure by the state and its agents in the safe regulation of public flying displays. That should constitute qualification under article 2.

The inquest will undertake an investigation into the cause of the accident. It will give the 11 families an understanding of the events that led to the deaths of their loved ones and enable them to participate in the fact-finding inquisitorial process. Unlike in the criminal investigation, the families have an opportunity to be involved in the inquest process and require legal assistance to do so—my hon. Friend the Member for Bexhill and Battle made that point. The police have referred to the thousands of documents that will be provided to the coroner, and to which the families will have access, that will include technical evidence, lay evidence and witness testimony. Surely the families are entitled to proper legal scrutiny of those. Detailed specialised knowledge is necessary to understand the AAIB report and the supplementary oral evidence from the AAIB, and challenge it accordingly. Additionally, the volume of case documents in the inquest will be such that the families will further require legal expertise to assist in managing the documents and explaining their relevance to the proceedings. Therefore, a strong case was made in the application. It just defies logic that, in this exceptional case, the families have not qualified for exceptional case funding.

This inequality of arms is inequitable and could undermine the inquest’s ability to serve the public interest through a failure to protect rights under article 2 of the ECHR, with the families in effect being left to represent themselves with one hand tied behind their back. There clearly is a wider public interest, although it is refuted by the Legal Aid Agency. There is a wider public interest not least for the more than 300 civilian air shows that take place up and down the country. They have already been affected by the changes that the CAA introduced in the light of the AAIB investigation report, meaning that some have not been able to stay viable—insurance premiums have gone up in many cases. What is that if not a wider public interest? At the conclusion of the inquest, the coroner is able, under regulation 28 of and schedule 5 to the coroners rules, to make recommendations for changes to ensure improvements to air safety and to prevent future accidents. That is each family’s main aim: they wish to prevent similar deaths and to ensure that others do not have to endure this huge trauma and bereavement. That is a wider public interest.

Clearly, therefore, the Legal Aid Agency judgment is flawed. I have requested a meeting with the chief executive, Shaun McNally, which he has agreed to, after it has looked at things further. I gather that the board is still assessing the judgment. I urge it to apply the principles for which the exceptional case fund was established in the first place. In addition, I urge the Government to look at the Law Society recommendations about what the review of LASPO should change, including researching the reasons for the low level of exceptional case funding—the point made by the hon. Member for Lewisham West and Penge.

There is also a wider issue about the inadequate way we fund legal representation for families of victims of multiple-death events. The issue is highlighted most starkly by the appalling delay in achieving justice for the victims of the Hillsborough disaster, which we have heard so much about in this place. In the report commissioned by the Home Office, “‘The patronising disposition of unaccountable power’”, the Right Reverend James Jones, the former Bishop of Liverpool and chair of the Hillsborough independent panel, said that there is a “pressing need” for bereaved families to have publicly funded legal representation at inquests at which public bodies are legally represented. I entirely agree. I have had discussions with the hon. Member for Wirral South (Alison McGovern), who has championed their cause, about achieving a level playing field in these fortunately rare but devastating cases. I have co-signed the letter to the Prime Minister to that effect and hope that the new Secretary of State for Justice and the new team will meet us to discuss that.

This is my ask of the Government and the Minister. First, despite the rules, the Government should find some way to step in and underwrite funding for legal representation of the families urgently, and well before the review of LASPO. Secondly, Law Officers need to put pressure on the CPS to make a decision one way or the other and fully explain it as a matter of urgency. In the longer term, they need to look at the how we ensure that families affected by such tragedies have full recourse to proper legal representation on a level playing field.

This was an exceptional tragedy. It was a tragedy not only for the families, but for the local community, which still bears the scars of what happened, and for the country as a whole, when the spotlight and the cameras were on the small town in my constituency for those days back in August. It was an exceptional tragedy, and it needs an exceptional response from Ministers and the Government. I hope the Minister will give some assurances that that might now happen.