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THE GRANT of legal aid to an eight-year-old boy, who lost his mother and sister in the Ufton Nervet rail disaster, so lawyers could fight his corner at the inquest into the tragedy, came under fire in an Appeal Court test case yesterday (Friday).
The challenge to the decision to give legal funding to eight-year-old Toby Main from Speen, whose mother and nine-year-old sister died when a train ploughed into a parked car near Ufton Nervet in November 2004, could have "huge" implications for the families of victims involved in future inquests.
Toby's mother, Anjanette Rossi, 38, and his sister, Louella were thrown through the train's windows when it ploughed into a car which motorist, Brian Drysdale, had parked on a level crossing. Drysdale, the First Great Western train's driver, Stanley Martin, and five of the London to Plymouth train's passengers died.
Relatives of those who lost their lives in the rail crash feared their loved ones would have "died in vain" unless they were allowed to play a full part in the long-delayed inquest into the crash, which began this month in Slough and is currently ongoing.
The families want, amongst other things, a full investigation into whether an early warning system would have averted the disaster, or laminated safety windows on the train would have prevented fatalities.
High Court judge, Mr Justice Owen, handed Toby - who was spearheading their fight - a resounding victory in April when he overturned the refusal of the then Legal Aid Minister, Bridget Prentice, to fund legal representation for him as "irrational" and a violation of his human rights.
But that ruling is now under attack in the Court of Appeal in a test case which has vital implications for the right of the bereaved to be legally represented at inquests.
Nathalie Lieven QC, for the Minister for Legal Aid, argued today that Mr Justice Owen had usurped the role of the Minister and bypassed democracy when he made his decision in April.
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Their emotional involvement ... makes it virtually impossible for them to engage in any risk balancing exercise
Clive Fletcher-Wood, First Great Western
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She argued the judge "applied the wrong test, simply substituting his judgment for that of the democratically accountable Minister. The statute plainly gives the decision to the Minister. It is a judgment which involves the balancing of need against a limited pool of public funds."
The barrister said the judge had also been "fundamentally wrong" to rule that train companies and Government rail regulators could not fairly represent the interests of passengers at the inquest.
Clive Fletcher-Wood, for First Great Western, an "interested party" in the case, agreed with Miss Leiven, saying that statutory bodies such as Passenger Focus, an independent body sponsored by the Department of Transport to protect the interests of rail passengers, were the appropriate voices to represent the victims of rail crashes at inquests.
He argued families should not be represented because their emotional involvement would make it difficult for them to take a balanced view of the issues.
"The bereaved at any inquest will be concentrating on the risk or set of risks which led to the death of their loved ones. Their emotional involvement in the issues leading to the inquest makes it virtually impossible for them to engage in any risk balancing exercise," he said.
Michael Fordham QC, for Toby, argued Mr Justice Owen had been right to rule the Minister's refusal of legal aid "fatally flawed" and that bereaved families had the right to be heard at the inquest.
Louise Christian, Toby's solicitor, explaining the significance of today's hearing, said outside court: "Toby has been granted legal aid and nothing can take that away from him now, but the outcome of today's hearing will make a huge difference to other bereaved families in other inquests, and in similar situations arising in the future."
Recognising the importance of the case, Sir Igor Judge, Lord Justice Carnwath and Lord Justice Toulson, reserved their decision until an unspecified later date. |
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