The UK Court of Appeal has partially granted the application for Judicial Review (JR) by the Howard League for Penal Reform and the Prisoners’ Advice Service which had challenged the removal by the Criminal Legal Aid (General) (Amendment) Regulations 2013 for certain categories of prison law from the scope of criminal legal aid.
In 2015, the Court of Appeals granted limited permission to bring judicial review proceedings as arguable that without potential for access to appropriate assistance, the system could carry unacceptable risk of unfair, and therefore unlawful decision-making which was retained by the Court of Appeals.
The Court had to address five key problems that had been identified following the 2013 cuts, in three of the five, the court found the cuts to be inherently unfair. The three judge court were unanimous in identifying restrictions were operating unlawfully in three separate areas of internal prison hearings; pre-tariff reviews by Parole Board (whether prisoner is suitable for move to open conditions), category-A reviews re high-security prisoners and decisions on placing inmates in close supervisions centres. In its judgement the court held that “[A]t 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.”
In considering whether there was inherent fairness in the system itself, the Court considered factors such as importance of issues at stake, complexity of procedural and legal issues and ability of individuals to represent themselves having regard to age and mental capacity, focusing on vulnerable prisoners including those with learning disabilities and mental illness.
In situation were the issue is factually or legally complex or entails potentially serious consequences for the individual, common law rules of fairness will generally entitle a person to have access to legal advice in the UK as part of the fundamental right to access justice and to the Courts. The Court recognised that there may be safeguards other than legal aid and advice that will prevent inherent or systemic unfairness by enabling prisoners to effectively participate in a category of decision-making.
The Government’s decision to remove legal aid from these 5 categories was taken as it considered that there were adequate alternative means. In reality almost no changes were subsequently introduced to replace the gap created by the cuts. The ruling is significant at a time when evidence about prison staffing levels, conditions and workload of Parole Board suggests the system itself is under considerable pressure with no capacity to fill the gaps.
Click here for a copy of the judgement.
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