Written 24th March 2014 by Olliers Solicitors

The High Court has rejected a challenge by two prison law charities against the cuts to legal aid available for prisoners. The Howard League for Penal Reform and the Prisoners’ Advice Service sought a judicial review against the changes , arguing vulnerable inmates would suffer.

Prison Law

However, Lady Justice Rafferty and Mr Justice Cranston, sitting in London rejecting the argument said:

“We can well understand the concerns ventilated through these claims. A range of impressive commentators have argued that the changes to criminal legal aid for prison law … will have serious adverse effects for prisoners.

“But we simply cannot see, at least at this point in time, how these concerns can arguably constitute unlawful action by the lord chancellor. For the time being the forum for advancing these concerns remains the political.”

The changes were introduced in 2013 and minsters said at the time that the changes would stop taxpayers’ money being used for “unnecessary legal cases” which could be dealt with by the prison service. Justice Secretary Chris Grayling, who introduced the changes amongst a huge package of cuts to legal aid as a whole, alluded to savings of £4m a year at the time of implementation. He said:

“I have been appalled that taxpayers pay millions of pounds every year supplying lawyers for prisoners to bring unnecessary legal cases.

“The vast majority of these types of complaint can and should be dealt with by the prison service’s complaints system.

“After years spiraling out of control, the amount spent on legal aid for prisoners is being tackled.”

Prisoners’ Rights

The charities say the cuts imposed in England and Wales are on inmates who will be “too vulnerable to complain” for “ideological reasons entirely contrary to the rule of law”. Those representing them said the changes were “unfair, irrational and inflexible”. They added prisoners’ rights and their chances of rehabilitation had been undermined and suggested that the changes would cost the taxpayer millions of pounds more in “hidden costs”.

Phillippa Kaufmann QC, appearing for the charities, said the cuts stopped legal assistance for women prisoners facing reviews over eligibility for mother-and-baby units and affected inmates facing segregation and placement in close supervision units.

However, James Eadie QC, appearing for the justice secretary, had insisted that the arguments about ministers’ “victimising and targeting of prisoners” had already been considered by parliament when legislating the measures. The new regulations were approved, notwithstanding the concerns, as a result of the need for “financial stringency in the legal aid system because of scarce resources”.

Deborah Russo, joint managing solicitor at the Prisoners’ Advice Service, said:

“We are deeply disappointed with this judgment, which fails to respond to the increased unfairness prisoners now face as a result of the latest round of legal aid cuts.

“The court is right to say that this is a political issue; however that does not mean that it is one in which the law cannot intervene if prisoners’ fundamental rights of access to legal remedies are being breached. We intend to appeal the judgment and will continue to press for these cuts to be reversed and for prisoners to be provided with adequate advice and representation to defend their legal rights.”

Court of Appeal

Frances Crook, chief executive of the Howard League, who were also extremely disappointed with the ruling commented:

“Our legal team represents children and young people in prison. These cuts will not result in savings for the taxpayer. On the contrary, they will result in increased costs as children remain in prison for longer than is necessary for want of a safe home to go to.

“We will take this to the court of appeal as the high court made fundamental errors in its understanding of some of the key points. The court completely failed to address how unfairness would not arise in particular situations where prisoners are unrepresented. These include parole board hearings where secret evidence is used against the prisoner or other cases which turn on expert evidence that cannot be commissioned without legal representation and funding.”

Toby Wilbraham

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