R The Howard League for Penal Reform v Prisoners' Advice Service and Another
| Jurisdiction | England & Wales |
| Judge | Mr Justice Cranston |
| Judgment Date | 17 March 2014 |
| Neutral Citation | [2014] EWHC 709 (Admin) |
| Date | 17 March 2014 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case Nos: CO/16747/2013 AND CO/17196/2013 |
[2014] EWHC 709 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Rafferty
Mr Justice Cranston
Case Nos: CO/16747/2013 AND CO/17196/2013
and
Phillippa Kaufmann QC, Alex GaskandMartha Spurrier (instructed by Bhatt Murphy) for the Claimants
James Eadie QC and Richard O'Brien (instructed by Treasury Solicitor) for the Defendant
Hearing date: 6 March 2014
Introduction
This is the judgment of the court to which we have both contributed.
These are applications for permission to apply for judicial review of the changes to criminal legal aid for prison law introduced by the Criminal Legal Aid (General) (Amendment) Regulations 2013, SI 2013 No 2790. The two claims concern separate but related issues. In broad outline the challenges are first, that there was not sufficient consultation in relation to aspects of the changes and secondly, that the removal from the scope of criminal legal aid funding of certain areas creates unacceptable risks of unfair decision making where fundamental rights are at stake and of interference with the common law and article 6 ECHR right of access to justice. The removal from scope is also discriminatory, irrational in a public law sense and will undermine the rule of law.
The first claimant, the Howard League for Penal Reform, is a penal reform charity dating back to 1866, with consultation status with the Council of Europe and the United Nations. In addition to its policy and campaign work it has a specialist prison law contract, and a public law contract, with the Legal Aid Agency to deliver publicly funded legal services. The second claimant, the Prisoners' Advice Service, is a charity providing legal advice and representation to prisoners, and legal advice and education to solicitors and NGOs. It responds to 8000 letters from prisoners every year. Like the Howard League it also has contracts with the Legal Aid Agency to offer publicly funded legal services on prison law and public law.
The grounds for the claims covered some 100 pages and Ms Kaufmann's skeleton on the applications some 25 pages. We had been presented with 6 bundles, including a bundle of authorities. Fortunately we had been able to digest a great deal of the material beforehand. At the outset of the hearing we proposed to Ms Kaufmann that the matter be treated as a rolled up hearing. She resisted the suggestion on the basis that the claimants intended to lodge more evidence if permission were granted and because of the shortness of time available at the hearing. The hearing lasted for two and a half hours. With respect to her we thought her approach overlooked the pressures on the court and the need to deal with matters in accordance with the Overriding Objective of the CPR.
Background
Part of the Coalition's programme for Government in 2010 was an undertaking to carry out a fundamental review of legal aid to make it work, it was said, more efficiently. In November 2010 there was a consultation paper entitled "Proposals for the reform of legal aid in England and Wales". In June 2011 the Government published its response to the consultation and set out its proposals for change. These were implemented in the main in the Legal Aid, Sentencing and Punishment of Offenders Act 2012. Major changes brought about by the Act included the creation of the Legal Aid Agency and changes to the scope of and eligibility for civil legal aid.
(a) The April 2013 consultation
Further changes to legal aid were proposed in a consultation document dated April 2013, "Transforming legal aid: delivering a more credible and efficient system". The foreword by the Lord Chancellor stated that legal aid was the hallmark of a fair, open justice system but that it had lost much of its credibility with the public. In the current financial climate it was necessary to make further savings by embarking on the next phase of reform, mainly focused on criminal cases. Overall the proposals in the consultation document were estimated to deliver savings of £220 million a year by 2018–2019.
Chapter 3 of the consultation document reiterated the need to improve public confidence in the legal aid system, to remove anomalies and, in a time of financial austerity, to target public resources at cases which really required legal aid to ensure that the public could have confidence in the system. Limited public funds should not be spent if matters could be better resolved by other means. As had been made clear in the 2010 consultation, public funding should be reserved for serious issues which had sufficient priority to justify its use, subject to people's means and the merits of the case.
The first of five proposals in chapter 3 addressed the subject matter of these challenges, restricting the scope of criminal legal aid for prison law. (The document defined the term "prison law" as matters relating to treatment in prison, sentencing issues, disciplinary matters and Parole Board reviews.) Prison law legal aid should be available for cases involving "the determination of a criminal charge, or which affects the individual's ongoing detention and where liberty was at stake, or which meet the criteria set out in case law (see para 3.14)": para 3.4. There was then a review of current practice. Criminal legal aid was available to prisoners seeking advice and assistance, including advocacy assistance, for matters relating to treatment, sentencing, disciplinary matters and Parole Board reviews (with a reference to Annex B): para 3.6. Paragraph 3.7 dealt with the change made in the 2010 Standard Crime Contract for legal aid, that matters concerning the treatment of prisoners (e.g. regime conditions) were not covered, when they could be suitably resolved through the internal prisoner complaint system, unless the legal provider could demonstrate that it would be practically impossible for the applicant to use the system (for example, prisoners with learning difficulties or mental health issues). There was also discussion of both the internal prison complaint mechanism and the work of the Prisons and Probation Ombudsman. A table set out how legal aid spent on prison law had risen from £1 million in 2001/02 to £25 million in 2009/10 (£26 million in 2010/11, £23 million in 2011/12).
The consultation document then set out the Government's proposals as follows:
"3.14 We propose to restrict the scope of advice and assistance, including advocacy assistance, to criminal legal aid for prison law cases that:
• involve a determination of a criminal charge for the purposes of article 6 European Convention on Human Rights (ECHR – Right to a fair trial);
• engage article 5.4 ECHR (right to have ongoing detention reviewed); and
• require legal representation as a result of successful application of the "Tarrant" criteria."
The last bullet point was a reference to the criteria set out in R v Secretary of State for the Home Department ex p Tarrant [1985] QB 251 as to when a prisoner should be legally represented on a disciplinary offence. The following paragraph explained that the Government believed that the cases in paragraph 3.14 alone were of sufficient priority to justify the use of public money and that the internal prisoner complaint system, prisoner discipline procedures and the probation complaints procedures should be the first port of call for other issues. Criminal legal aid would remain available for prisoners, for example, where liberty was at stake: para 3.15.
The document turned to specific prison law issues. Treatment matters were likely to be removed from criminal legal aid: para 3.17. With sentencing matters it was anticipated that issues relating to sentence planning or minimum term review applications would continue to be funded, subject to means and merits, since they related to the review of ongoing detention. However, those relating to "categorisation, segregation, close supervision centre and dangerous severe personality disorder referrals and assessments, resettlement issues and planning and licence conditions would not be funded as they do not engage any of the proposed scope criteria": para 3.18. With disciplinary matters, criminal legal aid and advice would remain available where the charge was so serious that an award of additional days might be imposed or where for some other reason the case was referred to an independent adjudicator: para 3.19. Regarding Parole Board review matters, the document said:
"3.20 Criminal legal aid advice and assistance would remain available for Parole Board review matters as these cases concern decisions about ongoing detention."
At the end of this section the document posed this consultation question: Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria?
Annex B set out the then current position with criminal legal aid for prison law. For Parole Board cases it covered "advice and advocacy assistance for eligible persons subject to proceedings before the Parole Board or who require advice and assistance regarding representations in relation to a mandatory life sentence or other parole review".
The consultation produced nearly 16,000 responses and there were 14 stakeholder events around the country attended by some 2,500 people. In relation to the proposed changes in prison law there was a great deal of critical comment,...
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