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Campaigners defeat government over legal aid cuts for prisoners

Removal of funding in three out of five categories declared unlawful

10 April 2017

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Government cuts to legal aid for prisoners have been declared unlawful by the Court of Appeal in a ruling that has been described as an ‘unprecedented and groundbreaking legal victory’ by campaigners.

Giving judgment, the three judges held that the decision taken by the former justice secretary Chris Grayling in 2013 to remove legal aid from three out of five categories passed the threshold of inherent or systemic unfairness.

These categories included: pre-tariff reviews of indeterminate sentence prisoners by the Parole Board, categorisation reviews of Category A prisoners, and decisions as to placement of prisoners in close supervision centres (CSCs).

However, the court was not persuaded that legal aid provision for access to offending behaviour programmes and courses (OPBs) and prison disciplinary proceedings where no additional days of imprisonment or detention can be awarded were unlawful.

In the 86-page judgment, Lady Justice Gloster, Lord Justice Patten, and Lord Justice Beaston said: ‘The government’s decision to remove legal aid from the five categories of decision-making that are the subject of these proceedings by the 2013 Amendment Regulations was made because it considers that there were adequate alternative means in place to ensure prisoners can participate effectively in areas in which support has hitherto been provided by legal advice and legal representation.

‘The consequence is that almost no changes have been introduced to replace the gap left by the removal of legal aid. We have concluded 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 legal challenge was brought by the Howard League and Prisoners’ Advice Service while the Equality and Human Rights Commission intervened. All three welcomed the decision.

Frances Cook, chief executive of the Howard League, said the decision will make the public safer. ‘It vindicates our concerns that cuts imposed by the former Lord Chancellor, Chris Grayling, in 2013 presented a grave risk that prisoners would become stuck in a broken system.

‘This sends a clear message that important decisions about prisoners cannot be made efficiently or fairly in the face of these cuts. We look forward to hearing from the Lord Chancellor with her plans to give effect to the judgment.’

Deborah Russo, joint managing solicitor of the Prisoners’ Advice Service, added: ‘This is an unprecedented and groundbreaking legal victory in which the vulnerability of the prison population is fully recognised as a key factor in its limited ability to access justice. Common law came to the rescue of a marginalised and often forgotten sector of our society.’

Rebecca Hilsenrath, chief executive of the Equality and Human Rights Commission, said: ‘Without access to legal aid, prisoners with learning difficulties and mental illness would not be able to participate effectively in important decisions about their future, placing them at a significant disadvantage. We welcome today’s judgment that will ensure our legal system continues to provide legal help during these hearings.’

An MoJ spokesperson said it noted the ruling and was considering whether to appeal.

Matthew Rogers is a legal reporter at Solicitors Journal

matthew.rogers@solicitorsjournal.co.uk | @lex_progress

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Police & Prisons Legal Aid