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Beyond the Wall, HMP Glenochil, Scotland Gold Award for Watercolour

Legal aid for prisoners was severely curtailed following the introduction of the Criminal Legal Aid (General) (Amendment) Regulations 2013 on 2 December 2013. The regulations mean that prisoners who had previously been provided with legally aided advice, assistance and advocacy now have to fend for themselves, pay privately or rely on charities like the Howard League for Penal Reform and the Prisoners’ Advice Service (PAS) for help.

• This article was written by Deborah Russo, PAS’s joint managing solicitor, and Laura Janes

Since the cuts came into force, prisoners have also experienced alarming deterioration in their conditions to the extent that the Justice Select Committee has raised concerns about safety in our prisons.

One of the most powerful indictments of these cuts came from Lord Brown of Eaton-under-Heywood. Lord Brown, by his own admission, argued ardently for much of his career to restrict the rights of prisoners. Speaking in the House of Lords in January 2014, less than a month after the cuts came into force he stated:

‘These cases are no longer to be funded for the very reason that those who wish to bring them are prisoners… . It is by virtue only of their status as prisoners—an unpopular group and thus perhaps regarded as a soft and popular target for cuts – that prisoners will have fewer rights to funding and so less access to justice than the population at large… . Prisoners, as members of a closed community uniquely subject to the exercise of highly coercive powers, far from having fewer rights of recourse to independent courts than most of us, should, rather, have at the very least equal access to justice.’

It is precisely because the cuts risk fundamental unfairness that the Howard League and PAS have been fighting hard for the past year and a half to challenge the cuts. This is their story.

The legal challenge
The challenge is based on the risk of unfairness caused by the absolute removal of cuts to whole areas of legal aid for prisoners.

The areas under challenge fall into two broad categories.

First, the charities argue that the removal of legal aid for a small number of important Parole Board cases is unlawful. The are known as pre-tariff reviews and advice cases. They affect prisoners on life sentences and imprisonment for public protection (IPP) sentences who are not eligible for release but are due to be considered for progression to open conditions if the Parole Board advises that it would be safe for them to do so. This is important because, once in open conditions, prisoners can apply to work and receive education in the community. This step is key for prisoners’ rehabilitation and public safety. Making prisoners go through this stage without legal advice and representation is counter-productive and increases the risk to the public. Without legal representation, there is a real risk that these prisoners will not get a fair hearing.

Second, the charities argue against the removal of legal aid for prisoners facing particular difficulties such as mothers threatened with separation from their babies, children and disabled prisoners who need a support package so they can be released safely, and mentally ill prisoners held in isolation. Managing people through long prison sentences is a skilful business which needs to be handled with extreme care so that they can resettle safely into the community. Again, there is a real risk that prisoners simply will not be able to achieve the right outcome without legal advice and assistance in these cases.

The High Court: law and politics
The initial permission hearing on 17 March 2014 was lost and an appeal was immediately lodged. The judgment was a disappointing one to say the least. Even though pretty much an entire day was spent arguing complex points of law which were then set out in a judgment extending to 30 pages, the two justices hearing the case thought the case was unarguable and the matter was one for politics not law.

In his concluding remarks, Mr Justice Cranston stated:

 ‘We can well understand the concerns ventilated through these claims. A range of impressive commentators have argued that the changes to criminal legal aid for prison law in the Criminal Aid (General) (Amendment) Regulations 2013, SI 2013, No 2790 will have serious adverse effects for prisoners. But we simply cannot see, at least at this point in time, how these concerns can arguably constitute unlawful action by the Lord Chancellor. For the time being the forum for advancing these concerns remains the political. Permission is given to cite this judgment.’

The judgment cited at length evidence heard in Parliament, including a comment by the Lord Chancellor at the time, that could leave no doubt that the cuts were ‘ideological’.

Although the political motivation for the cuts was clear, the main point the charities made was that the cuts risked unfairness and were therefore unlawful. It was a legal matter affecting thousands of prisoners and children in custody who no longer have any redress to right their wrongs. The Court was of course right to say that the decision to cut legal aid for prisoners was political. But this was not a sound reason to exclude the possibility of legal intervention where prisoners’ fundamental rights of access to legal remedies are being breached.

It is hard to see how the Administrative Court found the case was not arguable in law. It is a well-known fact that the test for the grant of permission is a low one. Permission should be granted where the Claimant can show that there is an ‘arguable’ case.

The Court of Appeal
The Howard League and PAS were not deterred. Both organisations quickly bounced back and proceeded to appeal to the Court of Appeal. It was a long wait until the case for permission on appeal was heard by the Court of Appeal on 7 July 2015 and the judgment handed down on 28 July 2015. The original High Court decision to refuse permission was overturned by Court of Appeal judges Lord Justice Leveson, Lord Justice Tomlinson and Lady Justice Sharp.

In its detailed decision, the Court of Appeal recognises the risk of systemic unfairness as a result of the legal aid cuts to prison law. Lord Justice Leveson concludes:

‘The question of inherent unfairness concerns not simply the structure of the system which may be capable of operating fairly, but whether there are mechanisms in place to accommodate the arguably higher risk of unfair decisions for those with mental health, learning or other difficulties which effectively deprive them of the ability effectively to participate in, at least, some of the decisions to which [the applicants’ counsel] Ms Kaufmann refers.’

It is expected that the case will proceed to full trial in Spring 2016, if the new Lord Chancellor does not review his position before then.

The reality for prisoners until the case is heard
Meanwhile prisoners continue to struggle without access to legal aid for most of their problems.

In the year following the cuts, calls to the Howard League’s advice line increased by 45%. The legal team, which provides the only dedicated legal service for children and young people in prison in the country, is overwhelmed with requests from young people with nowhere else to turn.

PAS represents adults (over-21s) and receives thousands of letters and calls each year. The charity simply does not have the physical or financial resources to deal with the large amount of requests that it now receives for pro bono assistance and representation. PAS continues to provide a lifeline for thousands of prisoners at this particularly crucial time.

There is no doubt that the motivation behind the litigation was in the public interest. Litigation is time consuming, stressful and a huge drain on the charities. Yet the sheer level of additional work generated by the cuts affecting prisoners with nobody else to turn to is unsustainable and demonstrates the importance of legal aid for prisoners.

The Howard League and PAS, described by Lord Justice Leveson as ‘pre-eminent in this field’ and having ‘the very highest reputations’, are delighted with the judgment. It provides a ray of hope that legal aid cuts for prisoners and children in prison will be reversed or at least mitigated to ensure them adequate advice and representation to defend their legal rights. The fight continues.