Our London meeting on Wednesday 13 September 2017 at Hodge Jones & Allen focussed on the recent Court of Appeal judgment on legal aid for prisoners and the work of the Howard League for Penal Reform, with Simon Creighton of Bhatt Murphy and Marie Franklin of the Howard League joining us as guest speakers.
Simon Creighton spoke about the recent Court of Appeal judgment in the case of R (on the application of the Howard League) v. Lord Chancellor  EWCA Civ 244. The judgment is available here.
In 2013, the Lord Chancellor passed a statutory instrument in order to change the availability of legal aid for prisoners, removing it in almost all circumstances. Under this statutory instrument, the only circumstances where legal aid was available were as follows: parole board hearings where there is the potential for immediate release, external adjudications where additional days of imprisonment can be added to the individual’s sentence; and sentence calculations where internal procedures for settling disputes have been exhausted.
The Howard League and Prisoners' Advice Service together brought a judicial review to challenge the cuts to prison law legal aid on behalf of prisoners. The charities were accepted as having standing to do so for a number of reasons, for example, they were in the best position to promote the rights of prisoners, due to the fact that the most vulnerable prisoners are also, generally, the least likely to access assistance.
The challenge to the Lord Chancellor’s statutory instrument concerned legal aid availability for pre-tariff parole reviews, issues surrounding mother and baby units, category A reviews, sentencing planning work, governor adjudications and reviews of licence conditions.
Initially, the application for permission to bring judicial review was refused by the High Court. The Howard League appealed this decision and it was considered by the Court of Appeal. Once the Court of Appeal decided to grant permission, they reserved the case to themselves, meaning that, unusually, the Court of Appeal heard the full case at first instance.
When the application for judicial review was first submitted, the grounds were very wide. They covered the failure of the Lord Chancellor to consult on the process of the changes, the common law duty of the Lord Chancellor to ensure fairness; and grounds based upon the European Convention on Human Rights.
Only one ground succeeded on the application for permission at the Court of Appeal – the common law ground. This is a very high bar to meet, and required that the Howard League prove that the system, as a whole, is not capable of ensuring fairness. This means that they needed to prove that there had been no substitute for the legal aid which had been removed from these areas – i.e. needing to show that other aspects of the prison service, for example, the prison ombudsman, were incapable of ‘plugging the gaps’ in legal aid.
During the course of the proceedings, the Lord Chancellor accepted that Convention rights were engaged in some of the circumstances for which legal aid had been removed. Importantly, the acknowledgement that Convention rights were engaged meant that, necessarily, exceptional case funding could be accessed in these circumstances. Exceptional case funding is a form of legal aid which can be accessed for cases which would generally be out of scope under the legal aid regulations, but where refusal to provide legal aid will cause a breach of Convention rights.
Another issue which arose was the lack of people accessing the prison ombudsman, particularly those in vulnerable groups, such as children and female prisoners.
The claimants were able to establish that the system – taken in its entirety – was unfair; and thus the Lord Chancellor had breached the common law duty of fairness. This then switched the burden of proof onto the Lord Chancellor, who had to disprove this unfairness – and thus attempted to demonstrate that the system had sufficient safeguards to ensure fairness, even with no legal aid available.
The Lord Chancellor was unable to demonstrate this to the satisfaction of the court.
Following a full hearing, the Court of Appeal held that the current system was unreasonable for some of the issues on which the legal aid availability challenge was brought, for example, pre-tariff parole reviews.
However, the court determined that it was not unfair that legal aid is not available for governor adjudications, where the individual cannot be given additional days on their sentence, but can suffer segregation and loss of privileges.
The Court of Appeal’s determination stated that the Lord Chancellor’s decision to take away legal aid and not replace it with other measures was unlawful. However, they could not – and therefore did not – rule that the Lord Chancellor must re-introduce legal aid for these areas.
The Lord Chancellor has lodged a petition for permission to appeal this judgment to the Supreme Court. Whether or not this application will be granted is currently unknown. It is unlikely that the Lord Chancellor will take steps to reintroduce legal aid in the specified areas until a determination is received from the Supreme Court. Until then, prisoners will continue to suffer under a system that has been found to be woefully inadequate in protecting their rights.
Marie Franklin then spoke about the work of the Howard League for Penal Reform. The Howard League is an independent charity and the leading non-governmental organisation concerned with penal issues and policy. They campaign for change in the criminal justice system, conducting research and running campaigns, in addition to providing legal services for children in custody.
Marie is a caseworker who specialises in children in custody. She spoke about a number of issues which children who are in custody are facing every day, as well as the casework and campaigning that the Howard League does.
The case of R (on the application of the Howard League) v. the Secretary of State for the Home Department  EWHC 2497 (Admin) established that local authorities have duties towards children in prison, in a similar manner to the duties they have to children who have not been detained. The judgment in this case was given by the then Mr Justice Munby, now president of the family division of the High Court.
A more recent case of the Howard League was the case of R (on the application of AB) v. Secretary of State for Justice  EWHC 1694 (Admin), regarding the treatment of a child, referred to as AB, at YOI Feltham. AB was held in solitary confinement for months on end and denied adequate access to education. It was determined by the High Court that this was a breach of Article 8 of the European Convention of Human Rights – the right to a private and family life. However, the court decided against the Howard League regarding their submissions that this was also a breach of Article 3 ECHR – inhuman and degrading treatment.
AB’s detention was declared to be unlawful by the High Court, as they determined that it was in breach of the Young Offender Institution Rules. For example, the rules require that children in prison get at least 15 hours of education per week – in this case, AB had no education whatsoever for the first 55 days in YOI Feltham and was only provided with a total of 15 hours within the two month period prior to the hearing. The court heard evidence stating that the lack of educational provision was due to the risks posed by children to others and staff shortages.
Another key case in which the Howard League have been involved is the case of R (on the application of HC) v. Secretary of State for the Home Department and Commissioner of Police for the Metropolis  EWHC 982 (Admin), in which the Howard League were interveners to the proceedings. This case has reinforced the presumption that children should be entitled to an oral parole hearing where release is not agreed on the papers.
The Howard League will be hosting a seminar entitled ‘Preventing the criminalisation of children in care’ from 6.30pm on Tuesday 17 October at Garden Court Chambers. You can register on their website here.
YLAL would like to thank both Simon Creighton of Bhatt Murphy and Marie Franklin of the Howard League for joining us, as well as Katie McFadden for preparing this detailed summary of the event.