Authors:Oliver Carter and Rachel Francis
Last updated:2023-09-18
“In a victory for access to justice, the Court of Appeal ruled that the decision to cut legal aid for prison law was unlawful.”
Thanks to admirable perseverance in the pursuit of justice by the Howard League for Penal Reform and the Prisoners’ Advice Service (PAS), another nail has been hammered into the coffin of Chris Grayling’s unlamented tenure as lord chancellor. In a victory for access to justice, the Court of Appeal ruled on 10 April that his decision to cut legal aid for prison law was inherently unfair and therefore unlawful ([2017] EWCA Civ 244).
The Criminal Legal Aid (General) (Amendment) Regulations 2013 SI No 2790 were introduced by Grayling with effect from 2 December 2013, after his predecessor, Ken Clarke, had shepherded the Legal Aid, Sentencing and Punishment of Offenders Act 2012 through parliament the previous year. The regulations removed funding for pre-tariff parole reviews and several other areas of decision-making relating to prisoners from the scope of legal aid.
Initially, following the Transforming legal aid consultation in 2013, the government planned to prevent prisoners accessing legal aid for any cases that did not affect the length of their sentence: funding would only be available for parole reviews where the Parole Board had the power to direct release. The Ministry of Justice (MoJ) argued that alternative means of redress such as the prisoner complaints system should be used to resolve any other issues.
It was in evidence to the Justice Select Committee in July 2013, during questioning by then-backbencher Jeremy Corbyn, that Grayling described his decision to withdraw legal aid from all prison law cases not concerning the length of imprisonment as ‘ideological’. Since the cuts came into force, violence and self-injury in prison have risen to record levels, and almost 300 people have lost their lives through suicide (see ‘Court of Appeal: cuts to legal aid for prisoners are unlawful’, Howard League, 10 April 2017).
Importantly, before the case was heard by the Court of Appeal, the claimant charities had already secured significant concessions from the MoJ, enabling prisoners to access legal aid for challenges concerning decisions about mother and baby units, segregation, licence conditions and obtaining suitable release plans. Dr Laura Janes, legal director of the Howard League, estimates that 85 per cent of the areas in which they and PAS challenged the removal of legal aid have now either been restored or ruled unlawful (‘Draconian cuts to legal aid for prisoners found to be unlawful by Court of Appeal’, openDemocracy, 26 April 2017).
By the time this appeal was heard, the challenge focused on five specific areas from which public funding was withdrawn: pre-tariff reviews by the Parole Board where it does not have the power to direct release; categorisation reviews for Category A prisoners; access to offending behaviour programmes and courses; disciplinary proceedings where no additional days of detention can be awarded; and decisions as to placement in close supervision centres within prisons.
The Court of Appeal held that it had been unlawful to remove legal aid from three of these areas: pre-tariff reviews by the Parole Board; Category A reviews; and placement in close supervision centres. In its analysis of whether the withdrawal of funding for advice and representation in these areas met the high threshold for inherent or systemic unfairness, the court paid particular regard to the position of vulnerable prisoners, including those with learning or communication difficulties and mental health problems.
Noting the evidence about prison staffing levels, the current state of prisons and the workload of the Parole Board, the court recognised that the system is ‘under considerable pressure’ (para 146). While the government argued that ‘there were adequate alternative means in place to ensure prisoners can participate effectively’ without funding for legal advice and representation, ‘almost no changes [were] introduced to replace the gap left by the removal of legal aid’ (para 146). The court therefore held that the removal of legal aid in the three areas referred to above did result in inherent or systemic unfairness.
The Howard League welcomed the judgment as ‘an important step forward in making sure that people in prison move through the system more safely and more efficiently. This will make the public safer and ease pressure on a prison system at breaking point’. PAS hailed the ‘unprecedented and groundbreaking legal victory’ in which the common law ‘came to the rescue of a marginalised and often forgotten sector of our society’. At the time of writing, the government has not confirmed whether it will seek permission to appeal or how it intends to implement the judgment.
Following the announcement of the general election, rumours began to circulate that the prime minister would use the enhanced mandate she anticipates as an opportunity to remove deadwood from her cabinet, with Liz Truss thought to be at risk as a result of her strained relationship with the judiciary. If a new lord chancellor and justice secretary is appointed after the election, s/he will be the fifth in as many years.
Whether or not his successor’s race is run, now that another rotten plank of Grayling’s wretched legacy as lord chancellor has been dismantled by the courts, perhaps the epitaph for his time at 102 Petty France should be: he fought the law and the law won.