Without legal aid prisoners will not be treated fairly
Prison officers cannot give adequate legal support in a dispute with the prison service, Kate Maynard writes
Penal reformers won a landmark judicial review of the legality of the government’s cuts to legal aid for prisoners last month.
Now Liz Truss – or whoever might replace her as lord chancellor after the general election – must find a mechanism to implement the judgment and grant prisoners legal aid in the three areas the court identified. Failing to do so risks a massive tranche of judicial reviews and civil claims by prisoners who go on to suffer.
The court decided that the high bar for systemic unfairness had been met in relation to three of five decision making areas: pre-tariff Parole Board reviews, category A reviews – where prisoners seek a lower risk rating to move out of one of the handful of often remote and austere high security prisons – and placement in close supervision centres.
Lawyers for the Home Office argued that legal aid was only one of several ways to ensure fairness in all the areas under scrutiny by the court and that there were adequate alternative means of keeping vulnerable prisoners effectively engaged in decision-making, such as support from prison officers. The Court of Appeal agreed, but went onto say that the state of prisons “at present” was so bad that the gap left by the cuts to legal aid was not being met.
The government still has a chance to appeal, but the chief fear of prisoners hoping to benefit from this ruling is that when parliament resumes in June new legislation may explicitly override the common law to deprive prisoners of legal representation. That approach would sink prisons into an even deeper crisis, so it is hoped that MPs understand that legal representation is required for adequate standards of justice, a point Lord Woolf identified as essential following widespread disorder in prisons in the early 1990s. Prison officers can no more deliver adequate legal support in a dispute with the prison service than employers can in an industrial dispute or banks on a misselling claim.
In response to the ruling, the Ministry of Justice might be tempted to extend the exceptional case funding regime that was established to avoid contravention of the European Convention on Human Rights in situations where legal aid is necessary. However, that has proved to be expensive to administer and has controversially helped only a tiny proportion of those who have needed assistance, resulting in further legal aid-related litigation.
Ultimately, no remedy can put right the unfairness sustained over the last three and a half years, during which prisoners have not had access to legal advice. Affected prisoners will expect past decisions to be reviewed and to receive the support that the Court of Appeal recognises that they need in respect of future decisions. It is hoped that the ministry gives the same level of attention to achieving procedural fairness that it has done recently to implementing budget cuts.
Kate Maynard is a partner at the London law firm Hickman and Rose