Legal aid for prisoners to be reinstated following successful challenge by the Howard League and the Prisoners’ Advice Service

Legal aid will be reinstated for three key areas of prison law tomorrow (Wednesday 21 February), after the cuts were successfully challenged in court by the Howard League for Penal Reform and the Prisoners’ Advice Service.

The two charities brought a judicial review more than four years ago following the decision of the then Lord Chancellor, Chris Grayling, to remove almost all areas of legal aid for prisoners. The cuts were ruled to be unlawful by the Court of Appeal in April last year.

The changes are to be implemented through a statutory instrument, effective from tomorrow. It is the first time that any areas of law have been brought back into the scope of legal aid since the cuts came into force in December 2013.

In the years since the cuts were introduced, violence and self-injury in prisons have risen to record levels, with more prisoners than ever before calling the Howard League and the Prisoners’ Advice Service to seek help.

Calls to the Howard League legal advice line have increased by 62 per cent since the cuts came into force. Calls to the Prisoners’ Advice Service increased from 14,000 to 25,000 in 2017.

The government initially applied to appeal the Court of Appeal’s ruling, but ministers withdrew the application in October last year.

Laura Janes, Legal Director at the Howard League for Penal Reform, said: “The cuts have coincided with record high prison numbers, self-injury and suicide rates. For those of us who visit prisons week in and week out, as I do, it has never been so grim, even for children.

“The government has paid heed to the judgment, and we hope that it will make a positive difference. Our concern is that during the years of drought, as with other areas of legal aid, many providers have given up or lost their expertise.

“The Howard League has tried its best to weather the storm, at great financial cost and creating a huge burden on our staff.”

Deborah Russo, Joint Managing Solicitor of the Prisoners’ Advice Service, said: “Successive governments have cut the legal aid budget to the bone and we are therefore extremely pleased to have won this reversal of a part of that cut. Many of our clients are in high security prisons and in desperate need of legal aid in order to make representations about decisions regarding their Category A status or placement in Close Supervision Centres. Even more so are lifers and indeterminate sentence prisoners who, since the last round of prison law legal aid cuts until now, have faced pre-tariff reviews of their sentence either unrepresented or having to pay lawyers to attend their hearings.

“This is clearly only part of the fight to re-establish a decent, fair and universal legal aid system; however it is a step in the right direction, which we are proud to have been able to take.”

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.

2. 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.

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

4. 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”).

5. 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.

6. 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.

7. 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.

8. 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.

9. 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.

10. 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. 

Contact

Rob Preece
Campaigns and Communications Manager
The Howard League for Penal Reform
Tel: +44 (0)20 7241 7880
Mobile: +44 (0)7714 604955
Email: robert.preece@howardleague.org
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
Email: deborah.russo@prisonersadvice.org.uk

Simon Creighton
Bhatt Murphy Solicitors
Tel: +44 (0)7931 545675
Email: s.creighton@bhattmurphy.co.uk