Scope cuts must not mean end of prisoners’ rights
Drastic cuts to prison law funding leave prisoners ever more marginalised. Simon Creighton and Deborah Russo highlight the few areas still open to legal aid but warn of the dangers of leaving prisoners without recourse to legal representation.
Legal aid may be down, but it’s not out completely – at least not yet. Legal Action’s ‘Use it or lose it’ series aims to highlight what remains of legal aid, and to show practitioners how they can make the most of it to help their clients obtain much-needed access to justice.
The availability of legal aid to advise and act for prisoners was severely curtailed by the Criminal Legal Aid (General) (Amendment) Regulations 2013 SI No 2790 on 2 December 2013. The justice secretary sought to explain the restrictions by saying that he was removing legal aid for prisoners to argue about what prison they are held in. In fact, it removed areas such as segregation, entry to mother and baby units and sentence planning from the scope of the criminal public funding contract.
The 2013 regulations amend Criminal Legal Aid (General) Regulations 2013 SI No 9, reg 12 (prescribed conditions) as follows:
(2) For paragraph (2)(d), substitute – ‘(d) require advice and assistance regarding –
(i) the application of the provisions in Chapter 6 of Part 12 of the Criminal Justice Act 2003 or in Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, which determine when a prisoner is either entitled to be released by the Secretary of State or eligible for consideration by the Parole Board for a direction to be released; or
(ii) the application of the provisions in Chapter 2 of Part 5 of the Powers of Criminal Courts (Sentencing) Act 2000, which determine when an offender is entitled to be released by the Secretary of State;’.
(3) For paragraph (2)(f) substitute –
‘(f) require advice and assistance regarding a disciplinary hearing in a prison or young offender institution where –
(i) the proceedings involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights; or
(ii) the governor has exercised the governor’s discretion to allow advice and assistance in relation to the hearing;’.
(4) In paragraph (2)(g) after ‘Parole Board’, insert ‘where the Parole Board has the power to direct that individual’s release’.
So, following those amendments what remains in scope? Sadly, not very much, but the following areas are still covered.
Parole reviews where the board has the power to direct release
This includes all end-of-tariff reviews, post-tariff reviews and recall hearings for indeterminate sentence prisoners (ISPs) as in each of these situations the Parole Board has the power to direct release. It does not include parole reviews that take place before the end of the tariff (pre-tariff reviews) as these cases are only referred to the Parole Board to advise on the prisoner’s suitability to move to open conditions. This omission is anomalous as it only covers a very small part of the Parole Board’s work. The move to open conditions is very often an essential precursor to release and, particularly for prisoners serving very long life sentences, it can be a far more difficult decision than the eventual release decision. In this context, it is also important to note that the decision made by the secretary of state as to whether a pre-tariff review should take place at all is also outside the scope of any funding.
At the present time, it also includes recall hearings for prisoners serving determinate sentences and initial release decisions for extended sentence prisoners (ESPs) and those determinate sentence prisoners (DSPs) still subject to the discretionary release arrangements in the Criminal Justice Act (CJA) 1991.
Representations made to the public protection casework section (PPCS) following the recall of a DSP to custody remain within the scope of funding. These initial written representations will be funded through advice and assistance as the PPCS can either exercise executive release or refer those written representations to the Parole Board. If the Parole Board refers the case on to an oral hearing, the oral hearing will be funded by way of advocacy assistance as a parole review matter.
It is worth noting that although all recalls are currently covered, the proposed amendments contained in the most recent Criminal Justice and Courts Act (CJCA) 2015 (which received royal assent on 12 February 2015) are that all determinate recalls should be removed from the jurisdiction of the Parole Board and given to newly appointed recall adjudicators (CJA 2003 s239A inserted by CJCA 2015 s8). At present, the full proposals for the new scheme have not been published but they will require an amendment to the regulations if they are to continue to be publicly-funded work.
Sentence calculation matters
This is a very narrow class of case which does not cover sentence planning and is limited solely to work related to the proper calculation of the sentence as imposed by the court. It covers, for example, cases where remand time has not been properly credited or where there is an error in the calculation of the correct statutory release dates.
Disciplinary hearings before an independent adjudicator or where the governor permits representations under the Tarrant criteria
Public funding through advocacy assistance remains available for these cases. It is important to note, however, that it is only available where the case has already been referred to an independent adjudicator or where the governor exceptionally permits legal representation. There is no provision for funding to make representations to the governor about the application of the Tarrant criteria or a referral to an independent adjudicator. It is also important not to confuse the grant of legal representation with an adjournment for legal advice which is a requirement in all adjudications.
Prisoners serving sentences of detention at Her Majesty’s Pleasure (HMP detainees) are entitled to have their tariffs reviewed at the halfway point, a process that involves consideration of the tariff by a High Court judge. Also, there is a very small group of adult mandatory lifers who still have not had their tariffs set judicially and are entitled to have the tariff reset by the High Court. These cases remain within the scope of the criminal contract. There has been some confusion as to whether they are now funded through the prison law contract or through the appeals and reviews contract. However, the Legal Aid Agency (LAA) notified the Association of Prison Lawyers (APL) that it is possible for prison law contract holders to continue with tariff reviews, even though the Criminal Bills Assessment Manual has yet to be formally amended.
All other prison law matters are outside the scope of the standard criminal contract (SCC). Anecdotal information received by the Prisoners’ Advice Service (PAS) from prisoners is that some prison officers and governors seem to be interpreting the lack of free legal advice as the removal of the right to legal advice itself. These cuts are clearly leading to a crisis of accountability that needs to be countered by prison law practitioners. Although the loss of legal aid is of course a massive blow, the existence of the actual legal rights which prisoners and their supporters have fought to establish over the past 45 years are not dependent on the existence of funding, and have not been removed by its loss.
Other avenues of public funding
Although the scope cuts to the criminal contract have been draconian, there are some other limited ways to counter these losses. Firms with contracts in public law and actions against the police (AAP) will still be able to assist prisoners in different ways. If a prisoner has a genuine public law problem, legal help may be available under the civil contract to advise on the matter and to draft a letter before claim. Investigative help may also be available to further explore the merits of a case. Examples of cases that PAS has been able to take on as public law cases include:
•Prisoners concerned about their licence conditions – for example a prisoner being told he cannot marry his girlfriend as she was the victim of his index offence.
•Prisoners being refused childcare resettlement licence (CRL) – for example a male prisoner being refused CRL although his wife passed away during his sentence because he was not the sole carer of the child prior to imprisonment.
•Prisoners being refused access to Open University degrees or other forms of education.
The AAP contract can also cover some areas no longer covered by the SCC. Treatment cases, for example, are now completely removed from prison law contracts but can continue to be funded through the AAP contract. The category definitions for AAP in the (Draft) Standard Civil Contract 2015 provide that legal help can be provided where there is abuse of position or power by a public authority (LASPO, Sch 1, para 21) or where there is a significant breach of a convention right (LASPO, Sch 1, para 22), to the extent that the proposed defendant is a public authority with the power to prosecute, detain, or imprison, or the case is a claim for personal injury based on allegations of deliberate abuse of a person while in the care of a public authority or other institution.
One key difference between the civil contract and the criminal contract is that for civil matters, each firm will be allocated a fixed number of matter starts. This contrasts with the criminal contract where there is no such limit. The number of matter starts is quite low and so this does mean that it can only step into the breach in a small number of cases.1Although on a slightly more positive note, the LAA has issued new guidance to its contract managers which may make it easier for practitioners to get more civil new matter starts (NMS) if they run out (see Requests for Supplementary Matter Starts: Guidance to Contract Managers, LAA, 22 January 2015 at: www.gov.uk/government/uploads/system/uploads/attachment_data/file/397501/supplementary-matter-starts-guidance.pdf).
More cuts in the future?
As set out above, the government has now passed legislation authorising the recall of DSPs outside of supervision by the Parole Board. The APL have been informed by the Ministry of Justice that current plans are for the new system to be implemented by the summer of 2015. No details were given as to the identity of the adjudicators but the APL was assured that legal aid will continue to be available for this category of case. As this will require an amendment to the current regulations, this is obviously a matter that will need to be followed closely.
The legal aid cuts have been drastic and have further marginalised one of the most vulnerable groups in our society. However, it is important to make full use of the limited legal aid that is still available to ensure that prisoners are not further marginalised. Some solicitors’ firms will continue to provide existing clients with a limited amount of advice and assistance for free, while others are bringing in fee-paying schemes at the same level of the legal aid fixed fees. It would be a catastrophe if lawyers were to turn away from the work altogether leaving those held in closed institutions without the basic right of access to the courts. PAS and the Howard League for Penal Reform have challenged the legal aid cuts to prison law by way of judicial review. The permission application was refused on 17 March 2014 (R (Howard League for Penal Reform and Prisoners’ Advice Service) v Lord Chancellor  EWHC 709 (Admin)) but permission to appeal to the Court of Appeal has been granted and we are currently waiting for a hearing date.
PAS continues to provide telephone and written information and advice on all aspects of prison law.