R (Howard League for Penal Reform and Another) v Lord Chancellor
| Jurisdiction | England & Wales |
| Judge | Lord Justice Beatson |
| Judgment Date | 10 April 2017 |
| Neutral Citation | [2017] EWCA Civ 244 |
| Docket Number | Case No: C1/2014/0953 & C1/2014/1262 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 April 2017 |
[2017] EWCA Civ 244
Lady Justice Gloster, VICE-PRESIDENT OF THE COURT OF APPEAL CIVIL DIVISION
Lord Justice Patten
and
Lord Justice Beatson
Case No: C1/2014/0953 & C1/2014/1262
IN THE COURT OF APPEAL (CIVIL DIVISION)
IN A MATTER OF AN APPLICATION FOR JUDICIAL REVIEW
LADY JUSTICE RAFFERTY & MR JUSTICE CRANSTON
Royal Courts of Justice
Strand, London, WC2A 2LL
Phillippa Kaufmann QC, Alex Gask (instructed by Bhatt Murphy Ltd) for the Claimants
James Eadie QC, Richard O'Brien (instructed by Government Legal Department) for the Defendant,
Intervener: Hugh SoutheyQC (instructed by Equality and Human Rights Commission)
Hearing dates: 31 January – 1 February 2017. Further submissions: 8 and 15 February 2017
Approved Judgment
This is the judgment of the court.
I. Overview:
In this judicial review, the first claimant is the Howard League for Penal Reform ("the Howard League") a penal reform charity, and the second claimant is the Prisoners' Advice Service, a legal advice charity providing representation to prisoners and education to solicitors and NGOs. Both claimants have specialist prison law and public law contracts with the Legal Aid Agency to deliver publicly funded legal services on prison law. They challenge changes to criminal legal aid for prison law introduced with effect from 2 December 2013 by the Criminal Legal Aid (General) (Amendment) Regulations 2013, SI 2013 No 2790 ("the 2013 Amendment Regulations"). The changes remove funding for pre-tariff Parole Board reviews and a number of other areas of decision-making concerning prisoners from the scope of the criminal legal aid scheme. The claimants submit that the removal of legal aid from these areas will result in inherent or systemic unfairness.
The defendant is the Lord Chancellor, an office which is held in conjunction with that of Secretary of State for Justice. The Lord Chancellor has a duty under section 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 ("LASPO") to secure that legal aid is made available in accordance with Part 1 of the Act. Section 1 of the Constitutional Reform Act 2005 preserves the Lord Chancellor's "existing constitutional role" in relation to the "existing constitutional principle of the rule of law". The seventh of Lord Bingham's eight principles of the rule of law is that adjudicative procedures provided by the state should be fair, and he gives Parole Board hearings as an example of "hybrid procedures" subject to this principle: Bingham, The Rule of Law, Penguin 2011 at 90. The Lord Chancellor is now effectively the other party to the claimants' contracts with the Legal Aid Agency. The Secretary of State for Justice's responsibilities include prisons, sentencing and parole policy, and the probation service, matters that before 2007 were the responsibility of the Home Secretary.
The challenges are before this court because, when allowing an appeal against the refusal by the Divisional Court to grant permission for a judicial review on 28 July 2015 and granting limited permission, this court (Sir Brian Leveson PQBD, and Tomlinson and Sharp LJJ) retained the hearing in this court rather than remitting it to the Divisional Court. 1 The Equality and Human Rights Commission was granted permission to intervene by way of oral and written submissions to assist the court in determining the impact and lawfulness of the reforms on prisoners' rights and on the ability of prisoners with particular protected characteristics to obtain access to justice.
There are two claims. The first, the "Parole Board claim", issued on 6 November 2013, challenged the removal from the scope of legal aid of all Parole Board cases where the Board does not have the power to direct release. The second, the "Prison Law claim", issued on 28 November 2013, challenged the removal from the scope of
legal aid of the provision of advice and assistance from other areas of decision-making in prison law. The question for decision is whether the Lord Chancellor's decision to remove from the scope of criminal legal aid the provision of advice and assistance in the areas identified results in a system that carries "an unacceptable risk of unfair, and therefore unlawful, decision-making". The government's response in September 2013 to the reactions to its April 2013 consultation paper makes it clear that it was relying on existing procedures to fill the gap left by the removal of legal aid, rather than introducing a new system or new safeguards: see Transforming Legal Aid: Next Steps, §§ 2.5 – 2.6. 2In the light of the authorities which we consider in section IV of this judgment, there is broadly common ground as to the test required to show systemic unfairness. The threshold is a high one, and requires showing unfairness which is inherent in the system itself and not just the possibility of aberrant decisions and unfairness in individual cases. The dispute between the parties is the application of that test in the circumstances of these claims. Its determination depends on considering the full run of cases that go through the system and whether the existing alternative processes and procedures on which the Lord Chancellor is relying to fill the gap left by the removal of legal aid provide safeguards that are in practice available to ensure fairness in the light of that removal.
Since the grant of permission, the scope of the challenge has narrowed. In October 2015, the Lord Chancellor accepted that legal aid, in the form of exceptional case funding ("ECF") under section 10 of LASPO is in principle available to prisoners in applications for places on mother and baby units and in respect of licence conditions. In October 2015 and December 2016, the Lord Chancellor also accepted that ECF would also in principle be available for decisions concerning segregation and resettlement cases concerning a prisoner's accommodation or care following release which engage Article 8 of the European Convention on Human Rights ("the ECHR"). The challenge is now confined to the removal of legal aid from five areas. These are: pre-tariff reviews by the Parole Board where the Board does not have the power to direct release but advises the Secretary of State for Justice whether the prisoner is suitable for a move to open conditions; categorisation reviews of Category A prisoners, defined as those whose escape would be highly dangerous; access to offending behaviour programmes and courses ("OBPs"); disciplinary proceedings where no additional days of imprisonment or detention can be awarded; and placement in close supervision centres ("CSCs"). We give a fuller summary of the procedures concerning these five areas at [57]–[59], [93]–[94], [110]–[112], [127]–[128] and [138]–[139] below.
Those within the prison population are there for the purposes of punishment, the protection of the public, and rehabilitation. The claimants' case proceeds on the basis that the prison population is overcrowded and contains very vulnerable individuals. It includes the mentally unwell, those with learning or other disabilities, the illiterate, those who do not or hardly speak English, and young people. The claimants submit that, in different ways, the decision-making process in the five areas from which legal aid has been removed is complex and can have such profound consequences for
prisoners as to call for the highest procedural safeguards to ensure fairness. The complexity may, for instance, arise because of the need to assess the risk of future dangerousness and to consider assessments by the prison authorities, and the psychiatrists and psychologists who advise them, for which independent expert evidence may be required, or because of technical legal issues such as the disclosure of reports. There are some prisoners who, because of their vulnerabilities, are unable to participate in decision-making effectively, and most cannot pay for assistance.Ms Kaufmann QC, on behalf of the claimants, submitted that there is no evidence that assistance by staff and other prisoners in practice provides safeguards that render the system capable of delivering fair decision-making for those vulnerable prisoners. She maintained that prison staffing levels at present mean that there is insufficient capacity to provide the support that is needed and in any event, support by prison officers who, for example, may be providing evidence which a prisoner wishes to contest is not appropriate. She also submitted that the Lord Chancellor's reliance on post-decision appellate or supervisory mechanisms is misplaced as these mechanisms are incapable of remedying a decision where the flaw lies in its inability to deliver fairness. In respect of categorisation and placement in CSCs, she submitted that decisions in these areas may interfere with Article 8 of the ECHR, and that exceptional funding ought to be available under section 10 of LASPO, something which the Lord Chancellor does not accept.
The Lord Chancellor's case is that the flexibility in the system means that the high test for "inherent" or "systemic" unfairness is not met, particularly in the light of the margin of discretion allowed to the government in respect of the allocation of scarce legal aid resources. It was submitted that the areas of decision-making that are the subject of this challenge are essentially administrative, procedurally straightforward, and that decision-making is typically by an inquisitorial process.
Mr Eadie QC, on behalf of the Lord Chancellor, submitted that vulnerable prisoners are adequately supported within prisons by alternative processes and procedures not involving legal advice or representation, and by family and friends, and...
To continue reading
Request your trial
-
Palestine Solidarity Campaign Ltd and Another v Secretary of State for Communities and Local Government
...of challenge involves a high threshold. It is a principle to which the Court of Appeal recently returned in R (on the application of Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244; [2017] 4 WLR 92. That principle has no application in this 37 The third case the claim......
-
R SPM v Secretary of State for the Home Department
...to obtain legal advice and assistance to challenge removal directions, and in R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 244; [2017] 4 WLR 92, in relation to the lawfulness of removal of legal aid from certain categories of legal claims affecting prisoners. In bo......
- R (on the application of A) v Secretary of State for the Home Department
-
Oleh Humnyntskyi v Secretary of State for the Home Department
...EWCA Civ 47 [2014] 1 WLR 3103 per Beatson LJ at [67]. 254 In R (Howard League for Penal Reform) v Lord Chancellor [2017] EWCA Civ 224 [2017] 4 WLR 92 Beatson LJ set out a non-exhaustive list of factors that are relevant to the content of the fairness requirement: “The factors include the ......
-
Reconceptualizing multisectoral prison regulation: Voluntary organizations and bereaved families as regulators
...amounts to a ‘new cold war’. 5. R (Howard League and The Prisoners’ Claimants Advice Service) COURT OF APPEAL (CIVIL DIVISION), [2017] EWCA Civ 244. 6. The Howard League’s landmark 2002 judicial review of children’s human rights in Young Offender Institutions found that Prison Service Order......
-
Book Review: Martine Herzog-Evans, Droit de l’exécution des peines
...has resulted in an inherently unfair system: R (Howard League for Penal Reform and The Prisoners’ Advice Service) v Lord Chancellor [2017] EWCA Civ 244.The next chapter in this Part on preliminary questions explores the période de sûreté (which is easiest to translate as a ‘minimum term’ – ......