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7 Nov 2017

Green light for Court of Appeal ruling on prisoners’ access to justice

Almost seven months after the Court of Appeal ruled government cuts to legal aid for prisoners are unlawful because they are inherently unfair, the Ministry of Justice has written to the Supreme Court withdrawing its application to appeal the decision.

The Howard League for Penal Reform and the Prisoners’ Advice Service (PAS), who brought the legal challenge, have today (Tuesday 7 November) written to the Lord Chancellor asking for immediate action to give effect to the judgment, which was handed down in April.

The government’s withdrawal of its application means that the Court of Appeal’s decision is final.

In reaching its decision the Court heard that prisons were overcrowded and the cuts had profound consequences for prisoners, including “the mentally unwell, those with learning or other disabilities, the illiterate, those who do not or hardly speak English, and young people”. The government must now take action to rectify the shortfalls in the system.

Since cuts to legal aid for prisoners came into force in December 2013, violence and self-injury in prisons have risen to record levels.

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.

Laura Janes, Legal Director at the Howard League for Penal Reform, said: “For the past seven months, hundreds of prisoners have been stuck in the system without the legal support they need to move forward, even though the Court of Appeal made it clear that this was inherently unfair and therefore unlawful.

“We are pleased that the Lord Chancellor has now withdrawn his appeal and hope that urgent steps will be taken to give effect to the judgment.”

Deborah Russo, Joint Managing Solicitor of the Prisoners’ Advice Service, said: “After a long wait and years of battling through the courts we at PAS very much welcome the Secretary of State’s decision to finally accept the Court of Appeal’s ruling of inherent unfairness of the legal aid cuts imposed on prisoners back in December 2013.

“We believe that urgent action is now required to reinstate legal aid for some of the most vulnerable members of our society.”

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.

In the time between then and the cases coming before the Court of Appeal in January and February this year, the government conceded on four areas of concern. This left five key problems for the Court of Appeal to consider and, in three of the five, judges found the cuts to be inherently unfair.

Notes to editors

  1. The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
  1. The Prisoners’ Advice Service is an independent registered charity which provides legal advice and information to prisoners in England and Wales regarding their rights, the application of the Prison Rules and conditions of imprisonment.
  1. The charities’ arguments challenging the cuts were heard by three Court of Appeal judges in January and February 2017.
  1. 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”).
  1. In a detailed 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.
  1. 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.


Rob Preece
Campaigns and Communications Manager
The Howard League for Penal Reform
Tel: +44 (0)20 7241 7880
Mobile: +44 (0)7714 604955
ISDN line available on 020 7923 4196 – uses a G722 system
For enquiries outside normal office hours, please call +44 (0)7918 681094

Deborah Russo
Joint Managing Solicitor
The Prisoners’ Advice Service
Tel: +44 (0)20 7253 3600

Simon Creighton
Bhatt Murphy Solicitors
Tel: +44 (0)7931 545675

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