Andrew Sperling and Victoria Abrahams, specialist prison lawyers at Olliers Solicitors, consider the riots at HMP Birmingham in the context of cuts to justice.
Twenty-six years ago in the spring of 1990, the biggest riot in UK prison history took place at HMP Manchester. The riot included a twenty-five day roof top protest that involved 142 prisoners. It resulted in the death of two inmates and injuries to 47 prisoners and 147 prison officers. The disturbance started after prisoners felt that their complaints about conditions and how they were treated were being ignored or ineffectively investigated by staff. A reporter from the Manchester Evening News was addressed by the prisoners who highlighted their concerns, which included a need for prison officers to control the use of drugs in prisons, an improvement in food and general conditions and a removal of the use of mental and physical brutality by prison officers.
Three days ago, a riot took place at HMP Birmingham. The circumstances of this riot have been described extensively elsewhere and will not be repeated here.
The Lord Chancellor’s Statement
The Secretary of State for Justice and Lord Chancellor, Liz Truss, provided a Statement and answered questions about the Birmingham riot in Parliament yesterday. She announced that an inquiry would be held and fell back upon a similar script to those which she has used in response to riots or serious disturbances at HMP Bedford and other prisons over the past few weeks.
All of the comments she made were entirely predictable – the references to rioters facing “the full force of the law”, the “action we are taking on psychoactive drugs, drones and phones”, the promise of 2500 more officers and the absence of reference to the deliberate and avoidable loss of three times that many officers during the past six years. There was no demonstration of any fresh insight and a completely inadequate response to a pertinent question asked about the action which had been taken in response to an IMB Report about HMP Birmingham which had been published over a year earlier.
Liz Truss heralded the fact that the recent White Paper would place an explicit duty upon the Secretary of State to act on IMB and Inspectorate recommendations. This is a bizarre response. Why should the Secretary of State have to wait for a legislative imperative to act upon the recommendations made by specialist bodies for which she already had responsibility?
IMB Reports are set out in a way which should be very easy for Ministers and senior managers to understand. There is a section headed “Issues Requiring a Response” and subheaded “for the Minister”, “for the CEO of NOMS” and “for the Governor” (or Director for private prisons). There is also a section headed ISSUES RAISED IN PREVIOUS YEAR’S REPORT AND NOT YET RESOLVED. This included:
‘4.2.ii Prisoner complaints
Again we do not feel this is resolved. Some of the responses we see are quite unacceptable and do not deal with the problem.’
The Chief Inspector’s report into HMP Birmingham in 2014 concluded:
“Complaints were poorly managed and prisoners had little faith in the process.”
The Woolf Report
One MP made an explicit reference to the Woolf Report into the Manchester riots and asked what lessons had been learned from that. The response from Liz Truss was that she had “talked to Lord Woolf”. She did not provide any details at all of her conclusions from that meeting or give any indication that she was familiar with the Woolf Report.
The Prison Reform Trust published an excellent report last year, Strangeways 25 Years On – Achieving Fairness and Justice In Our Prisons. Liz Truss and the Prisons Minister Sam Gyimah could learn quite a bit from reading that report. It refers to the Woolf Inquiry’s findings on complaints:
“The inquiry found that an abiding sense of injustice amongst prisoners contributed to the disturbances. A shared sense of unfairness helped the disturbances not only to start but grow and increase in seriousness. Lord Woolf concluded that, without sufficient outlets to voice their grievances, prisoners had turned to more drastic and direct action.
Lord Woolf said that it was important that there were systems and structures in prisons to ensure that “justice does not stop at the prison door”. Ensuring that there was access to redress and an effective complaints system was vital in order to challenge decisions or actions believed to be unfair.”
Prisoners’ Rights and Representation
One year after the Manchester riots, which sparked dissent and unrest by prisoners experiencing similar issues across the country, the Prisoners’ Advice Service (PAS), was founded and became the first charity with an aim to provide free legal advice to prisoners in England and Wales. Just two years after its conception, PAS was granted a contract by the then Legal Services Commission which formalised their legal work allowing them to take on their own litigation and to challenge decisions made by the Prison Service. Prison law was relatively new and provided a tool for prisoners to use the legal system in a positive way, to develop and enforce their rights and to access to rehabilitation.
Organisations like PAS and the Howard League campaigned for prisoners to have access to the same rights as people who were not in custody including the right to legal representation and due process. The previous decade had seen significant miscarriages of justice including the Birmingham Six and the Guildford Four being exposed to the outside world. The riots, and the enquiries which followed, revealed a world which had largely been hidden from the public. The law provided a means for prisoners to pursue legitimate grievances and to establish fairer regimes. Access to legal aid for the majority of prisoners who were unable to support themselves financially, meant that they could find lawyers to represent them. It made access to justice meaningful.
It provided an important safeguard during a period in which the prison population expanded faster than ever before.
The Booming Prison Population
In July of this year, a government report examined the reasons why the prison population in England Wales is currently the largest in its history and one of the largest in Europe. The report confirmed that in 1993 the prison population was roughly 40,000. It has more than doubled since. In November 2016 the population was creeping towards 87,000. In June 2012, the number of prisoners serving a sentence of imprisonment for public protection (IPP) was 14,000. There had been a 600% increase in indeterminate sentenced prisoners in little over twenty years.
The period between 2010 and 2012 heralded the largest influx in prisoners that the system had ever seen.
The IPP sentence was an unmitigated disaster for the prison system and was abolished in 2012. However, abolition of the sentence itself was not accompanied by a quashing or conversion of IPP sentences for the 14000 prisoners who remained in the system.
The same year, the Justice Secretary Chris Grayling began his dismantling of the legal aid system alongside austerity policies of cutting prison budgets and laying off prison officers. This would be undertaken at the same time as an experimental part-privatisation of the Probation Service. Grayling used the aspirational term ‘transforming’ to describe his policies. ‘Transforming Probation’, described the process by which the Probation Service which would be split up and large swathes of it sold off to new Community Rehabilitation Companies. They would be awarded lengthy contracts to provide supervision in the community of prisoners on licence and others serving community-based sentences.
In March 2013 Grayling announced that he would be ‘Transforming Legal Aid’. This would include huge cuts to pay-rates for legal aid work (already very low and without any increase in 20 years) and the removal of the right to legal aid for several areas of prison law. He gave evidence to the Justice Select Committee in which he declared that he was “ideologically opposed” to prisoners having legal aid. Legal aid was ‘transformed’ without any parliamentary debate or vote.
The Association of Prison Lawyers prepared some campaign literature which described the kinds of legal work which would disappear under the legal aid cuts. The Ministry of Justice received over 20,000 responses to their Transforming Legal Aid consultation paper. Most of the responses which examined the impact of the cuts to legal aid for prisoners explained that prison lawyers did not only act for prisoners at the landmark parts of their sentences (such as a parole hearing at which they could seek their release) but wherever, however and whenever the system failed to protect their rights including their access to rehabilitation. This was particularly valuable in an under-resourced system which was very likely to produce more grievances.
The Impact of Legal Aid Cuts
The effects of the cuts to legal aid have been far-reaching. As well as denials of justice which in many cases will remain invisible to the outside world, there has been an adverse impact on the day to day work of prison officers, probation officers, the Parole Board and Ministry of Justice who have had to deal with large numbers of unrepresented and aggrieved prisoners.
Earlier this month, a group of independent legal experts known as the Bach Commission, commissioned by the Labour Party to review the legal aid system, produced an interim summary report. Placing emphasis on the basic principles of equality before the law, they identified that people who previously relied on legal aid “are now being denied access to justice”. They made specific reference to the very desperate position many prisoners now found themselves in.
The majority of problems that prisoners face which have a significant impact on their capacity to progress and effectively rehabilitate, no longer attract legal aid. The complaints system does not provide anything like an adequate replacement particularly while the prison system and probation service are drowning in a resource-starved environment. Prison officers are incapable of maintaining a regime which provides prisoners with the means to rehabilitate. Prisoners’ rights are routinely being overlooked and their hopes, their motivation, their sense of worth are being destroyed. This is resulting in the most violent and drug-ridden prison estate we have ever seen.
Prisoners riot when they are being ignored and when pro-social methods of airing grievances are closed down. To quote the current holder of the Nobel Prize In Literature:
“When you ain’t got nothing, you got nothing to lose”
Challenging the Cuts to Legal Aid
Legal aid does not resolve the deep-seated problems of the prison estate but it does helps to provide access to justice. The Prisoners’ Advice Service and the Howard League for Penal Reform are pursuing a test case to challenge the cuts made to legal aid for prisoners. It will be heard by the Court of Appeal early in the New Year. It is a difficult case which has been running for over three years. The costs of the litigation are putting the important front-line services provided by both charities at risk. You can help to make legal history and restore some access to justice for prisoners by making a donation, however small, to the Crowdfunding initiative which is supporting this litigation.