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Legal aid cuts for prisoners

The legal aid cuts to prison law have resulted in prisoners’ access to justice being severely curtailed.

On Monday 10 April 2017, the Court of Appeal, in its judgment on a legal challenge brought by the Howard League for Penal Reform and the Prisoners’ Advice Service (PAS), ruled that cuts to legal aid for prisoners are unlawful because they are inherently unfair.

The ruling is an important step forward in making sure that people in prison move through the system more safely and more efficiently. This will make the public safer and ease pressure on a prison system at breaking point.

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.

More prisoners than ever before have called the Howard League and PAS to seek help. Calls to the two charities’ advice lines have increased by almost 50 per cent since the cuts were imposed.

The legal challenge by the Howard League and PAS began in 2013. At that time, prisoners were completely shut out from any possibility of getting legal aid for a wide range of problems.

The charities’ arguments challenging the cuts were heard by three Court of Appeal judges in January and February 2017.

Before the hearing at the Court of Appeal, the government agreed that legal aid would be available for cases concerning: mother and baby units; resettlement; licence conditions; and segregation through an exceptional funding scheme. This left five key problems for the court to consider: pre-tariff reviews by the Parole Board where the Board does not have the power to direct release but advises the Secretary of State for Justice whether the prisoner is suitable for a move to open conditions; categorisation reviews of Category A prisoners; access to offending behaviour programmes and courses (“OBPs”); disciplinary proceedings where no additional days of imprisonment or detention can be awarded; and placement in close supervision centres (“CSCs”).

In an 86-page judgment, the Court of Appeal carefully scrutinised the full run of cases that go through the system and whether the existing alternative processes and procedures were capable of filling the gap left by the removal of legal aid in a way that would ensure fairness. The court found that the high threshold required for a finding of inherent or systemic unfairness has been satisfied in the case of pre-tariff reviews by the Parole Board, Category A reviews, and decisions as to placement in a CSC.

Pre-tariff reviews are where an indeterminate sentence prisoner has been referred to the Parole Board by the Secretary of State for Justice before the expiry of his/her minimum term for advice on a move to open conditions.

Category A is the highest security category. It is defined as prisoners “whose escape would be highly dangerous to the public, or the security of the State, and for whom the aim must be to make escape impossible”. Decisions to move prisoners from conditions of high security are complex and important.

CSCs were introduced to deal with the most disruptive or dangerous prisoners, who pose a risk to other prisoners. The decision to place a prisoner in one of these centres, which creates a serious restriction on the prisoner at great expense to the public purse, is complex and important.

The court was not persuaded that the lack of legal aid available in two areas – for OBPs and prison disciplinary proceedings where no additional days of imprisonment or detention can be awarded – is unlawful on the ground of systemic unfairness.

The Howard League for Penal Reform and the Prisoners’ Advice Service are jointly represented in these cases by Simon Creighton of Bhatt Murphy Solicitors, Phillippa Kaufmann of Matrix Chambers, and Alex Gask of Doughty Street Chambers.

About the charities
The Howard League for Penal Reform and the Prisoners’ Advice Service (PAS) are the only charities in the UK dedicated to providing free legal advice for prisoners. The Howard League supports children and young adults, while PAS represents adults aged over 21.


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