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Draconian cuts to legal aid for prisoners found to be unlawful by Court of Appeal

A rare thing: some good news for prisoners and legal aid. 

The Court of Appeal decision should mean that some prisoners will have assistance in navigating the stepping stones towards rehabilitation and, if they are deemed ready, release. Photo: with kind permission from Andy Aitchison. All rights reserved.

Since cuts to legal aid for prisoners came into force in December 2013, violence and self-injury in prisons have risen to record levels. Almost 300 people have lost their lives through suicide. But on 10 April 2017, the Court of Appeal, in its judgment on a legal challenge to the cuts, ruled that cuts to legal aid for prisoners are unlawful because they are inherently unfair.

The ruling was the result of a three-year legal battle by the Howard League for Penal Reform and the Prisoners’ Advice Service (PAS).

The charities took the exceptional step of bringing the case in their own name, putting their front line work at risk, because of the grave consequences for prisoners' progression towards safe and meaningful lives posed by the cuts to areas of law that involve complex decision-making.

The case proceeded on the basis that the prison population is overcrowded and contains very vulnerable individuals

As the judgment notes, prison is not just about punishment, but also the protection of the public, and rehabilitation. The charities' case proceeded on the basis that the prison population is overcrowded and contains very vulnerable individuals: In the words of the Court, "it includes the mentally unwell, those with learning or other disabilities, the illiterate, those who do not or hardly speak English, and young people."

Although the charities managed to secure a protected costs order to limit the financial risk of bringing the litigation, as the case wound its way through the courts, the combined impact of the cuts and the deterioration in prison conditions took its toll on the workload of the charities. A crowdfunding initiative was launched to support the case.

Since the case was launched in 2013, both charities have seen requests for legal help rise by over 50 per cent. In the same period, prison conditions have plummeted to unacceptable levels. This deterioration has been compounded by inadequate staffing.

As a result of the judgment and concessions along the way, 85% of the areas where we challenged the removal of legal aid by Chris Grayling have either been restored or deemed unlawful.

Lord Justice Beatson, giving judgment, said: “[A]t a time when… the evidence about prison staffing levels, the current state of prisons, and the workload of the Parole Board suggests that the system is under considerable pressure, the system has at present not got the capacity sufficiently to fill the gap in the run of cases in… three areas.”

The first area he refers to concerns the status of Category A prisoners – prisoners who are deemed to pose such a risk of serious harm should they escape from prison that they are held in the highest category of security. Such prisoners will be unable to progress towards release until they are first considered suitable for a less secure prison. The process for deciding this is difficult and complex and involves the right of the prisoner to make representations. The court found that the absence of legal aid for this process rendered it unfair and unlawful. 

The second area concerns the placement of prisoners held in specialist units called Close Supervision Centres. As the name suggests, these units are like prisons within a prison. Some of the most disturbed prisoners tend to be placed in these units. As with the Category A cases, the legal process surrounding it is complex and the chances of meaningful rehabilitation from within these units remote. The court also found the removal of legal aid for these cases was unfair. 

The third area that the Court found to be unlawful concerned the removal of legal aid for pre-tariff parole reviews. These are cases where a prisoner is serving a life or indeterminate sentence, like the notorious IPP sentence, and is eligible for a move to an open prison but not release. This is a crucial stepping stone in the journey towards safety as once in an open jail, prisoners can be allowed out into the community for the first time. Most lifers are, understandably, expected to be tested in open conditions before they are released for good. Again, the court found the removal of legal aid for these prisoners was unlawful.

If the executive encroaches on peoples' rights to the extent that it causes systemic unfairness, the courts will strike that down. That is a huge victory for justice.

The ruling is an important victory for a number of reasons.

First, we won. The decision to remove from legal aid from three important areas of law that affect the efficient and safe progression of prisoners through the system towards a safe and useful life has been ruled unlawful. 

Second, we secured massive concessions along the way. Before the Court of Appeal had even heard the case, the Lord Chancellor had conceded that certain areas of law that had been removed from legal aid such as help with decisions about mother and baby units, support for ensuring a suitable release plan and challenging segregation should fall under an exceptional funding scheme so people could at least apply for legal aid. As a result of the judgment and the concessions along the way, 85% of the areas where we challenged the removal of legal aid by Chris Grayling have either been restored or deemed unlawful.

Third, the Court of Appeal’s judgment shows that if the executive encroaches on peoples' rights to the extent that it causes systemic unfairness, the courts will strike that down. That is a huge victory for justice.

 It is still too early to know what will happen as a result of the judgment. The Government might try and appeal the decision. If the Government does not appeal, legal aid will still only be available if the current law is amended.

The case was brought by the Howard League for Penal Reform and the Prisoners’ Advice Service. The two charities provide specialist legal advice and assistance to prisoners. The Howard League's legal team works with young people under the age of 21 in prison. PAS works‎ with prisoners aged 21 and over. The charities were represented by Simon Creighton of Bhatt Murphy solicitors, Phillippa Kaufmann QC of Matrix Chambers and Alex Gask of Doughty Street Chambers.

About the author

Laura Janes is a solicitor and Legal Director at the Howard League for Penal Reform. Laura specialises in representing children in the criminal justice system, with particular expertise in children serving indeterminate sentences.


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