The government has lost a key court of appeal battle over access to legal aid for prisoners in a ruling that campaigners have called a groundbreaking victory.
Campaigners said the ruling vindicated their concerns that the system had become “inherently unfair” after the government stopped certain categories of prisoners from receiving criminal legal aid in 2013.
The Ministry of Justice’s refusal to provide funding has been overturned in three out of five categories, reversing cuts originally introduced by the former justice secretary, Chris Grayling, four years ago.
Three judges – Lady Justice Gloster, Lord Justice Patten and Lord Justice Beatson – found that the way legal aid restrictions had been operating was unlawful in three separate areas of internal prison hearings: pre-tariff reviews by the Parole Board, category-A reviews, and decisions on placing inmates in close supervision centres.
Their unanimous judgment 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 [cuts] 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.”
Welcoming the decision, Frances Crook, chief executive of the Howard League for Penal Reform, said the decision would 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,” she said.
Deborah Russo, joint managing solicitor of the Prisoners’ Advice Service, said: “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.”
The legal challenge produced major concessions from the Ministry of Justice before the case came to court in January this year. They agreed that legal aid should be available in cases involving mother-and-baby units, resettlement issues, licence conditions and segregation through an exceptional funding scheme.
But this left five areas where the withdrawal of legal aid was causing problems: pre-tariff reviews by the Parole Board on whether the prisoner is suitable for a move to open conditions; categorisation reviews of category-A high-security prisoners; access to offending behaviour programmes and courses; disciplinary proceedings where no additional days of imprisonment or detention can be awarded; and placement in close supervision centres.
The 86-page ruling found that the withdrawal of legal aid was causing inherent or systemic unfairness in three of the these five areas, and that prisoners should have access to legal aid to pay for legal representation during pre-tariff reviews by the Parole Board, reviews of category-A high-security status, and decisions on placements within close supervision centres, which deal with the most disruptive and or dangerous prisoners.
Following the verdict, the Equality and Human Rights Commission’s chief executive, Rebecca Hilsenrath, said: “A hallmark of a democratic legal system is that it is fair and robust for all users. 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: “We note the court of appeal’s judgment on changes made to legal aid regulations – introduced in 2013 – and will consider whether to appeal.”
The department is looking at alternative ways of ensuring that the system is not unfair. Such changes may involve means other than restoring legal aid.