The Court of Appeal has allowed two charities to challenge the legality of the government’s legal aid cuts for prisoners on the grounds that the system could be unfair and unlawful.
In March, the High Court dismissed applications for judicial review of the legality of changes introduced by the Criminal Legal Aid (General) (Amendment) Regulations 2013, which removed certain issues likely to arise between prisoners and the authorities from the scope of legal aid funding.
The Howard League for Penal Reform and the Prisoners’ Advice Service appealed the High Court’s decision.
In The Howard League for Penal Reform and Prisoners’ Advice Service v The Lord Chancellor, the charities argued seven key areas of work were cut from the scope of legal aid that carried an unacceptable risk of unfairness.
The areas include: cases where prisoners appear before the Parole Board about their suitability for a move to open prison (but not release); cases about pregnant prisoners being allocated to mother and baby units; prisoner segregation and placement in Close Supervision Centres; access to offending behaviour work; and having a suitable home to go to on release from prison.
The charities argued that removing the seven categories of cases from the scope of criminal legal aid rendered the system ‘inherently unfair’ because in some circumstances, the prisoners affected by these types of decisions would only be able to effectively participate in the decision-making if they were legally represented.
Handing down judgment, Sir Brian Leveson (pictured) said he was prepared to accept, based on the material before him, ‘that there could be a significant number of individuals subject to these types of decisions for whom it may be very difficult to participate effectively without support from someone.
‘It is arguable, therefore, that without the potential for access to appropriate assistance, the system could carry an unacceptable risk of unfair, and therefore unlawful, decision making’.
However, he dismissed the charities’ challenge that the lord chancellor failed adequately to consult upon the nature and extent of changes he proposed in relation to Parole Board hearings.
Today’s judgment was welcomed by both charities.
PAS joint managing solicitor Deborah Russo said: ‘The legal aid cuts to prison law have resulted in prisoners’ access to justice being severely curtailed with the consequence of further isolating an already very marginalised sector of our society.’
A spokesperson for the Ministry of Justice said it welcomed the fact the court ‘narrowed what was a wide-ranging claim to just one issue’.
He added: ‘Legal aid is taxpayers’ money and should be used where really necessary, not for issues from prisoners that can be fairly dealt with by other means. We will continue to argue this point in court’.
Leveson granted the charities leave to apply for judicial review. He said the most convenient and cost-effective course was to retain the hearing of the application and determine it in the Court of Appeal.