Cuts made in December 2013 to legal aid for prisoners have been ruled unlawful on the basis of “inherent or systemic unfairness”, in a blow for the Ministry of Justice.
Widespread cuts to criminal legal aid for prisoners were introduced by the Criminal Legal Aid (General) (Amendment) Regulations 2013 (SI 2013/2790). The Howard League for Penal Reform and the Prisoners’ Advice Service (PAS), both charities, brought a judicial review.
In R (Howard League and the Prisoners’ Advice Service) v The Lord Chancellor [2017] EWCA Civ 244, the court considered whether legal aid cuts should be reversed in five areas: certain pre-tariff reviews by the Parole Board; categorisation reviews of Category A prisoners; access to offending behaviour programmes (OBPs) and courses; certain disciplinary proceedings; and placement in close supervision centres (CSCs).
It held that the high threshold required for a finding of inherent or systemic unfairness had been satisfied in the case of pre-tariff reviews by the Parole Board, Category A reviews, and decisions as to placement in a CSC. This was particularly so “in the case of vulnerable prisoners, such as those with learning disabilities and mental illness,” Lord Justice Beatson said.
However, the court ruled the lack of legal aid lawful in the areas of OBPs and disciplinary proceedings.
Prior to the hearing, the government agreed to make legal aid available for cases concerning: mother and baby units; resettlement; licence conditions; and segregation through an exceptional funding scheme.
Simon Creighton, Bhatt Murphy partner, solicitor for the charities and representative for the Association of Prison Lawyers, said: “Access to legal advice for prisoners makes prisons fairer, safer and better at rehabilitating prisoners.
“This was first recognised in the Woolf report a quarter of a century ago and this judgment underlines that it is still true today.”
Frances Crook, the Howard League’s chief executive, said the decision would “make the public safer”, and sent a “clear message that important decisions about prisoners cannot be made efficiently or fairly in the face of these cuts”.
A Ministry of Justice spokesperson 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.”
