The Round-Up: Legal Aid for prisoners in the Court of Appeal

18 April 2017 by Thomas Beamont

The Court of Appeal last week partially granted an application for judicial review of the cuts to Legal Aid in certain categories of prison law. The judgment may change the face of legal representation for prisoners across the UK.

The 2013 changes to legal aid

In December 2013 changes to the legal aid scheme for prisoners were brought into force. This removed a number of types of cases involving prisoners from the scope of legal aid. These included five areas which were the subject of this week’s case:

“certain pre-tariff reviews of Category A prisoners;

categorization reviews of Category A prisoners;

Access to offending behavior programs and courses;

Certain disciplinary proceedings;

And placement in close supervision centres.”

The Howard League explains that pre-tariff reviews are those cases where a prison serving an indeterminate sentence has been referred to the Parole Board for advice on a move to open conditions.

Category A prisoners are those “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.”

Close supervision centres house the most disruptive or dangerous prisoners who pose a risk to other prisoners.

The Howard League for Penal Reform and the Prisoners’ Advice Service, both charities which provide advice and advocacy for prisoners in the UK, sought judicial review of the changes.

The government’s response to the case

Before the hearing of this case, the government agreed that legal aid would remain available for certain classes of cases. These included those brought by prisoners in mother and baby units, and those involving resettlement, licence conditions and segregation, through an exceptional funding scheme.

The judgment

In order to succeed, the claimants had to demonstrate the “high threshold required for a finding of inherent or systemic unfairness.” In deciding the claim, the Court considered a number of factors, summarized as: the importance of the issues at stake; the complexity of the procedural, legal and evidential issues in the cases without legal aid; and the ability of the individual to represent himself without legal assistance, having regard to his age and mental capacity, and the other assistance that is available.

Having regard to the variety of cases which are decided in the five scenarios which were subject to the judicial review, the court focused on vulnerable prisoners, which as those with learning disabilities and mental illness.

In relation to pre-tariff reviews by the Parole Board, Category A reviews, and decisions as to placement in a close supervision centre, the claimants succeeded. The Court of Appeal held that the “high threshold required for a finding of inherent or systemic unfairness” had been satisfied.

The Court said that it recognised that there may be safeguards to protect prisoners’ interests other than legal aid. However, it said that:

“at 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 those three areas.”

The claimants did not make out their claim of inherent and systemic unfairness in relation to access to offender behavior programs, and disciplinary proceedings.

Reactions to the decision

Frances Crook, the Chief Executive of the Howard League, said that the judgment vindicated the organisation’s concern that the cuts “presented grave risk that prisoners would become stuck in a broken system.”

The judgment was also welcomed by Deborah Russo of the Prisoners’ Advice Service, who said it was “an unprecedented and groundbreaking legal victory in which the vulnerability of the prison population is fully recognized as a key factor in its limited ability to access justice.”

The New Law Journal has reported that Simon Creighton, partner at Bhatt Murphy Solicitors and solicitor for the charities, said “access to legal advice for prisoners makes prisons fairer, safer and better at rehabilitating prisoners.”

A spokesperson for the Ministry of Justice said “we note the court of appeal’s judgment on changes made to legal aid regulations – introduced in 2013 – and will consider whether to appeal.”

In the news

Legal Voice outlines a new report on the House of Commons’ Joint Committee on Human Rights. The report raises concerns about the effect of the increase in employment tribunal fees in 2013. Human Rights and Business 2017 cites statistics from the Ministry of Justice which have shown a 43% drop in race discrimination claims, and a fall of 64% in religion or belief discrimination claims. The report also notes the disproportionate effect on women, as four-fifths of claimants for sex discrimination and equal pay cases are women. The MoJ has argued that the fee changes and introduction of ACA’s early conciliation service has helped “many more people to resolve their workplace disputes while avoiding the stress and cost of the tribunal.”

The Guardian reports on a number of complaints of torture and unlawful imprisonment of gap men in Chechnya. The article, which includes graphic description of abuse, outlines the reports of a “shocking anti-gay campaign…in the Russian republic of Chachnya.” It is said to have affected up to several hundred men, some of whom are believed to have been killed. The Russian newspaper Novaya Gazeta first reported the story, and claim to have evidence that at least three gay men have been killed. The Foreign Secretary Boris Johnson has written on Twitter that the alleged “ill-treatment” of the men is “outrageous.”

Amnesty International have published the 2016 Global Review of the Death Penalty. It purports to show that Chinese authorities deliberately obscure the number of executions in the country. It also states that China does not report foreign nationals given death sentences, despite at least 11 executions being reported in international media. The report also focuses on “top five” executioners in the world: China, Iran, Saudi Arabia, Iraq and Pakistan.

In the courts

Great Ormond Street Hospital for Children v Gard: A press release giving a summary of reasons for this decision handed down on 11^th April 2017 has been published. The case involves a young child, Charlie Gard, who has a terminal illness. Charlie’s parents want to take him to the USA to undergo a medical procedure known as ‘nucleoside therapy.’ The Hospital applied for an order that it was lawful and in Charlie’s best interests for artificial ventilation to be withdrawn, for Charlie to receive only palliative care, and for Charlie not to undergo nucleoside therapy. Mr Justice Francis found that it was in Charlie’s best interests for the orders to be granted, despite the objection of Charlie’s parents to the Hospital’s application. The full judgment is awaited.

R (on the application of Conway) v The Secretary of State for Justice: The Court of Appeal has allowed a man who suffers from motor neurone disease to challenge section 1 of the Suicide Act. The applicant seeks a declaration that the ban on assisted dying in the UK is incompatible with the European Convention on Human Rights. Lawyers for Mr Conway argued that the case raises issues of general public importance, and had a reasonable prospect of success. Rosalind English has written an article on this blog on the judgment.

by Thomas Beamont