The ‘BPB74 Amendment’: A small victory in a long battle

christopher-stanleyChristopher Stanley on the battle royal his firm went through to win legal aid funding for the resumed inquest into the 1974 Birmingham Pub Bombings. Christopher is a member of the KRW LAW LLP legal team instructed by six of the families of victims of the Birmingham Pub Bombings 1974

Julie Hambleton, whose sister Maxine was a victim of the 1974 Birmingham Pub Bombings (see photo), described the ruling to reopen the inquests into the deaths as ‘a seismic day’.

Her comments followed the decision of the senior coroner for Birmingham and Solihull, Mrs Louise Hunt, on 1 June 2016, that she had the power, jurisdiction and sufficient reason to resume the inquests, and it might have been thought that the way forward was now clear.

The caution of our clients, KRW and our counsel was merited. Mrs Hunt had determined that the resumed inquests must be compliant with the positive procedural investigatory obligations under Article 2 (the right to life) of the ECHR and that the state must discharge its investigatory obligations in compliance with both the Strasbourg (ECtHR) and domestic jurisprudence, following judgments such as Amin and Middleton.

It became apparent that the West Midlands Police (WMP) would not challenge the decision of Mrs Hunt by way of judicial review to the Divisional Court. It was clear that Mrs Hunt, on the basis of the disclosure from the WMP, thought that questions over prior intelligence and preventability required independent examination by way of the coronial process. She had requested disclosure from the Home Office, the Foreign and Commonwealth Office and the Ministry of Defence.

KRW interpreted the Article 2 engagement point as requiring: the right of the relatives of the victims to be able to effectively participate in the resumed inquests; and (following recent developments in the Strasbourg/ECtHR jurisprudence – see El-Masri for example), enabling the investigation to represent a broad right to truth of the relatives and the wider public interest – specifically the community of Birmingham.

KRW had made applications for public funding for legal representation, following 18 months of pro bono representation by ourselves and counsel, to both the Legal Aid Agency and the Ministry of Justice. Both applications were held pending the decision of the Senior Coroner. Following the decision, we applied direct to the Home Secretary for a funding scheme analogous to that provided to the families of the victims of the 1989 Hillsborough disaster. We also made submissions on the public funding made available to the families of the Omagh Bombing 1998 in their landmark civil action in Northern Ireland. We also made submissions on the recommendations of the then Chief Coroner regarding parity of funding for relatives of victims when state agents are parties to an inquest.

The application to the Home Secretary was refused by letter on the 24 September 2017. The Home Secretary had decided that funding should be made available, that it should be on an exceptional basis and non-means tested, that it should match that provided to the relatives of the victims of the 7/7 bombings but that the Hillsborough funding scheme did not set a precedent and the legal aid route should be ‘exhausted’ first. As we know the 7/7 funding option was removed under LAPSO 2012.

KRW now represented nine families of victims. Protracted negotiations with both the LAA and the MOJ ensued, parallel to a media and cross-party political campaign. The sticking point was Northern Ireland: KRW is registered to undertake publically-funded legal representation only in that jurisdiction.

The LAA proposed KRW become an agent of an English contracted legal aid supplier. Further negotiations ensued with a number of such suppliers – all agreed that the proposal was both unworkable and unnecessary. Our clients had come to Belfast to seek legal advice.

Our representation of our clients resulted in the decision of the Senior Coroner and our work and presence was accepted without demur from any law officer, interested person or the Law Society of England and Wales.

We offered to establish a practice in England and to apply for a legal aid contract, but there was no tender extant round until 2018. There was political rhetoric on the floor of the House of Common from the government, but no action: legal aid was available if a deal was struck.

We anticipated a negative spin – KRW was misadvising its clients. Our advice was always clear. Our instructions were always clear.

Finally, the rules governing legal aid were amended (here). Let us call this: ‘The BPB74 Amendment.’ It allows KRW, on behalf of our nine clients, to apply for exceptional funding for legal aid in order to enable our clients to effectively participate – which we also suggest means assisting the coroner in this investigation, in addition to assessing the evidence and examining the witnesses, in the resumed inquests into the deaths of their loved ones with the help of their legal team. We are doing so in the expectation that the financial non-eligibility waiver will be applied and that the decision of the Director of the LAA will be expedited prior to the next hearing in Birmingham.

We welcome the amendment. We now express another note of caution as we confront legal aid rates and legal aid interim payment schedules and taxation. That is for the on-going campaign demanding reform of the inquest system in the UK, and the obligation on government to provide parity of public funding for legal representation when state agents stand before the coroners. For today, a small victory was won in a long battle.

 

Leave a comment

Your email address will not be published. Required fields are marked *