Deaths in Custody (Legal Aid)

Liam Byrne Excerpts

Tuesday 4th February 2014 Commons Chamber

[Mr Liam Byrne (Birmingham, Hodge Hill) (Lab)]

I am very sorry to have to rise in my place tonight to bring this debate to the Floor of the House of Commons. For nearly three years I have worked to avoid this debate, and I come here tonight because I have been left with no other choice.

Let me say at the outset that there is no more determined campaigner for the police of my city than me. For 10 years as a Member of this House I have campaigned for bigger, stronger police teams. I have run half-marathons and triathlons to raise money for the West Midlands Police Benevolent Fund, and it has been my privilege on the Floor of the House to praise the bravery of officers such as PC Adam Koch and his colleague who literally risked their lives to save worshippers recently at a Ward End mosque. I am motivated tonight by their courage, because I believe our police are so important to our communities that they deserve to have the best team around them, but I am motivated too by an injustice that I want to bring to the attention of the Government.

Because the police service is a human and not a divine organisation, sometimes there are shortcomings, but if we want the best police service, it is important that we do not stand by when there are shortcomings; it is important that we act. For three years now I have been seeking to help a constituent of mine to act. My constituent’s case is sub judice, but I can give the House the essence. My constituent’s son, a boy she loved, died in police custody—a tragedy the pain of which I, as a father of three children, cannot possibly imagine—but this tragedy is deeper and darker for the alleged culpability of police officers who were paid by us on that night to keep my constituent’s son safe.

[Fiona Mactaggart (Slough) (Lab)]

I am very glad my right hon. Friend has brought before the House this issue of people who die in custody. I have informed the Minister of the case of my constituent Philmore Mills. His case is very unusual. He was in hospital in a lung ward, and on 11 December 2011 the staff were made anxious by his behaviour. They called the police and the police restrained him, and he died under police restraint. The inquest into that death is due on 1 April—two and a half years later—yet his family still do not know if they are going to have legal aid for representation at that inquest and they are thus made more anxious still. Their dad was in hospital with a breathing problem, yet he died at the hands of the police. They should be legally represented without having to pay.

[Mr Speaker]

Order. May I remind Members that they should be very careful about reference to live cases because of the sub judice rule?

[Mr Byrne]

Thank you, Mr Speaker; I am also grateful to my hon. Friend the Member for Slough (Fiona Mactaggart) for her intervention.

In the months that followed the death of my constituent’s son, the family and I sought, together with the Independent Police Complaints Commission, to ensure that the police officers involved were judged. I am sorry to say that they were judged to have been so negligent, and to have fallen so far short of their sworn duty, that they were found guilty of gross misconduct.

Now, the family are approaching the last trial of their strength: the inquest. It will be their final opportunity to find the truth of why and how their son died. Yes, it might bring grief, but I hope that it will also bring closure. The inquest is also important for our community, because it could provide critical insights that would help us to ensure that others need never suffer the same fate.

Despite my representations and the arguments that we have put forward, the family have been told that they must pay to have questions put on their behalf during the proceedings. Like me, they are outraged. The original bill was going to be nearly £7,500. It is true that their costs have now been reduced, but our system has become perverse. The fact that the family are having to provide a smaller cut of their savings cannot be judged a great success.

[Keith Vaz (Leicester East) (Lab)]

I thought that my right hon. Friend would like to know that the Home Affairs Select Committee will be opening an inquiry into the issues of deaths in police custody, and policing and mental health, later this year. It will also look into legal aid provision for the families involved.

[Mr Byrne]

That is very welcome, and I hope that my right hon. Friend and his Committee will be able to draw the right conclusions and, perhaps, use some of the evidence from the case that I am raising here tonight.

My point is very simple: when a family have lost their son while he was in the custody of the state, and when servants of the Crown have been judged guilty of gross misconduct, it is a gross injustice to tell that family that they must now help to pay their costs at the inquest into how their son lost his life.

I know the objections to my arguments. There are few in the House who know the pressures on the legal aid budget as well as I do. As Chief Secretary to the Treasury, I too had to negotiate reductions to that fund. However, if we cannot fund an inquest into a death of which the state appears to be culpable, we have got it wrong. Our article 2 obligations demand a thorough investigation of state action and culpability in cases such as these. Like me, the Minister knows that, following the case of Main in 2007, a wider public interest test must be satisfied if legal aid is to be awarded. A death in state custody, especially when Crown servants have been found negligent, must surely satisfy that test. We in this House agreed to that principle when we passed the Coroners and Justice Act 2009. Section 51 of that Act extended the principle of public funding for advocacy at inquests such as these.

As a parliamentarian, I want to know what happened on that night. That is the wider public interest test that is being satisfied here. I want to know whether we need changes to the law, or to the organisation of the police service. I want to know that, so that I can help to bring those changes forward. I do not want this House, this Government, or this Minister to be kept in the dark. I do not want the comfort of ignorance. I want to know why my constituent’s son died, and I want to know what we must do together in this House to ensure that none of our constituents ever has to face the same fate.

[Tessa Munt (Wells) (LD)]

I have had a similar case in my constituency. The inquest has now taken place, Mr Speaker. James was in his 20s, and he was mentally ill. He was restrained and, unfortunately, died in police custody. When the police force in question has access to unlimited legal advice and expertise at no quantifiable cost, is it not an outrage that the parents, who are so vulnerable at a time like that, should be asked to seek advice from a local solicitor who is not an expert in mental health or deaths in custody?

[Mr Byrne]

Let me deal with a point directly. The family did not choose to be in this position; the Coroners Act 1988 demands an inquest. We in this House are the people who insist on the position my constituents are now in, and we do so for a very good reason: we want to know what happened. Our predecessors in this Parliament felt so strongly about the unchecked actions of an arbitrary state that they deposed the monarch and fought a war to insist on the liberty of the individual and a measure of their protection—we want to know what happened.

[Jim Shannon (Strangford) (DUP)]

There were 5,998 deaths in police custody in the 11 years from 1 January 2000 to 31 December 2010. Does the right hon. Gentleman agree that there must be a method for families to access support in suspicious cases and that legal aid is an important part of that support for grieving families?

[Mr Byrne]

The hon. Gentleman is absolutely right. Some will say, “We should not get too worked up about this. The inquest process is inquisitorial not adversarial. It is just a gentle canter around the facts.” But when we are dealing with death in custody, it is different. How can we tell? It is because the public servants represented at the inquests will not just have one lawyer; they will have teams of lawyers, paid for by the taxpayer, on their side. We have to ask ourselves: how can we allow such a profound inequality of arms in the inquest room? How can we pretend to ourselves that that is even remotely equal, fair or right? There is now growing evidence, not just in my home city of Birmingham, but across the country, that wrongful legal aid decisions are being made in cases such as this. Many in this House will have seen the tragic case confronting Alex Kelly’s family, which was highlighted in The Observer on Sunday, and INQUEST, an organisation I wish to praise to high heaven, has brought to me a number of other cases where bad decisions are being made in our name.

In the short time remaining to me, I want to put five questions to the Minister. I appreciate that he will not be able to answer all of them tonight, so I hope that he will follow up in writing and that the House will be able to return to this subject, perhaps in the light of the report by my right hon. Friend the Member for Leicester East (Keith Vaz) later in the year. First, will the Minister meet me to discuss the legal aid decision in my constituent’s case? The case clearly meets the threshold of having “wider public interest'” set out in section 2.4 of the Legal Services Commission’s funding code criteria, which refers to the “potential” of the proceedings

“to produce real benefits for individuals other than the client”.

Secondly, when will the Lord Chancellor bring into effect section 51 of the Coroners and Justice Act 2009, which will extend advocacy support to those who died in custody? No stand part debate was held on that measure and, to the best of my knowledge, the Minister was not in the House to vote on the Bill on Third Reading. I do not believe the Conservative party or the Liberal Democrats opposed this legislation when it was brought to the House, so will the Government give us a date for bringing in section 51 as soon as possible?

Thirdly, will the Minister confirm that it is ministerial policy, and not simply administrative discretion, to seek a contribution from the family in inquests where a death in state custody has occurred? Fourthly, will the Minister tonight agree to a review of the way families are offered support and funding for inquest costs, not least because there is now evidence that the process is out of control, with the most invasive questions being asked of families in order for them to prove they do not have the resources to help contest these cases? Finally, will the Minister tell us how many families have been asked to make a contribution since 2010? What is the total bill that families in this country are now paying for cases such as this?

When I asked my constituent what she wanted from tonight’s debate, her answer was as generous as she is compassionate. “Hopefully,” she said, “we can change this for other people so that they will not have to suffer what we have suffered.” When all is said and done, the question at the heart of this debate is simple. It is the story of a mother’s loss, a mother’s love and a mother’s search for justice. Will we, in this House, stand on a mother’s side, or will we stand against her? When we begin work in this House each day, we pray for strength and wisdom to make the right decisions. I hope that we can now call on that strength and wisdom and make the right decisions in the case of my constituent and her lost son.

--- Later in debate ---

[Mr Vara]

The hon. Lady seeks to tempt me into territory into which I cannot go. What I will say is that as far as her constituent’s case is concerned, the process is still ongoing. As I understand it, a decision on legal aid has not been made, and dialogue is still going on. I trust she will accept that.

Although I cannot comment on the decision concerning Mr Butler’s family, I understand from the Legal Aid Agency that there was an issue concerning financial eligibility and whether it was appropriate for the family to pay a contribution, which is something that the right hon. Gentleman mentioned. I hope I can assist the House by explaining how the means test is applied to inquest cases. Legal aid for the representation of bereaved families at inquests is means-tested, like nearly every other element of the civil legal aid scheme. It is important that we focus our limited resources on those who need them the most, and the means test is an important and long-standing part of the legal aid system which has been in place since well before this Government came to power.

There is discretion to waive the financial eligibility limits for inquests if, in all the circumstances, it would not be reasonable to expect the family to bear the full costs of legal assistance at the inquest. Whether that is reasonable will depend in particular on the history of the case, the circumstances, the issues raised against state institutions, the applicant’s assessed disposable income and capital, the other financial resources of the family and the estimated costs of providing representation. Contributions from the applicant can also be waived in whole or part.

That is the position under the Legal Aid, Sentencing and Punishment of Offenders Act 2012, but it was also the position under the Access to Justice Act 1999, the legislation that applied to Mr Butler’s case.

[Mr Byrne]

The Minister is replying in a courteous and thoughtful manner. He has given us a number of helpful words about the broad principles of the means-testing regime, but I hope he will not elide over the point that when we passed the 2009 Act we decided to include section 51, which accepted that there were wider public interests at play in inquests that delved into deaths in state custody and explicitly provided for full legal aid costs to be provided to families in such cases. The Lord Chancellor has not implemented section 51. The arguments about it have already been rehearsed and the House has passed it. When will it be implemented?

[Mr Vara]

In the same way as the previous Administration did not implement it for 11 years—

[Mr Byrne]

It was the 2009 Act.

[Mr Vara]

Well, the previous Government made provision for it but they did not implement it. I do not know when it will be implemented, but I am happy to reflect on that matter and write to the right hon. Gentleman. Let me put on the record that the criteria under the Access to Justice Act still apply, as that was the Act that was applicable when Mr Butler’s case first arose.