Court of Appeal allows charities to challenge legal aid cuts for prisoners

legalaidcutsTwo charities have today (Tuesday 28 July) won the right to challenge legal aid cuts for prisoners after the Court of Appeal ruled there was a risk that the system could be unfair and unlawful.

The Howard League for Penal Reform and the Prisoners’ Advice Service (PAS) have been inundated with requests for help from children and prisoners since the cuts were introduced in December 2013.

The cuts have coincided with an unprecedented deterioration of safety standards in English and Welsh prisons and a rise in suicides, compounded by staff shortages.

A challenge by the Howard League and PAS was blocked by the High Court in March 2014 – but that decision was today overturned by Court of Appeal judges Lord Justice Leveson, Lord Justice Tomlinson and Lady Justice Sharp.

The Court of Appeal’s decision means that the case can now proceed to a full trial. 

The charities argued in court that there were seven key areas of work cut from the ambit of legal aid that carry an unacceptable risk of unfairness. These included:

  • 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;
  • segregation;
  • access to offending behaviour work;
  • having a suitable home to go to on release from prison.

Unlike other cuts to legal aid, where a safety net was introduced to allow people to apply for legal aid in exceptional circumstances, the cuts for prisoners were absolute: there is no lifeline for even the most vulnerable or incapacitated prisoner to apply for legal aid for prison law matters.

In its detailed decision, the Court of Appeal recognises the risk of systemic unfairness as a result of the legal aid cuts to prison law. Lord Justice Leveson concludes: “The question of inherent unfairness concerns not simply the structure of the system which may be capable of operating fairly, but whether there are mechanisms in place to accommodate the arguably higher risk of unfair decisions for those with mental health, learning or other difficulties which effectively deprive them of the ability effectively to participate in, at least, some of the decisions to which [the applicants’ counsel] Ms Kaufmann refers.”

Lord Justice Leveson adds in the judgment that the Howard League and PAS are “pre-eminent in this field” and have “the very highest reputations”.

In the year following the cuts, calls to the Howard League’s advice line increased by 45 per cent. The legal team, which provides the only dedicated legal service for children and young people in prison in the country, is overwhelmed with requests from young people with nowhere else to turn.

Prisoners’ Advice Service (PAS) represents adults (over-21s) and receives thousands of letters and calls each year. The charity simply does not have the physical or financial resources to deal with the large amount of requests that it now receives for pro bono assistance and representation.

The first key point of the case argues that the removal of legal aid for a small number of important Parole Board cases is unlawful. These cases affect prisoners on life sentences and imprisonment for public protection (IPP) sentences who can only progress to open conditions if the Parole Board advises that it would be safe for them to do so. This is important because, once in open conditions, prisoners can apply to work and receive education in the community. This step is key for prisoners’ rehabilitation and public safety. Making prisoners go through this stage without legal advice and representation is counter-productive and increases the risk to the public.

The second argument concerns the removal of legal aid for prisoners facing particular difficulties such as mothers threatened with separation from their babies, children and disabled prisoners who need a support package so they can be released safely, and mentally ill prisoners held in isolation. Managing people through long prison sentences is a skilful business which needs to be handled with extreme care so that they can resettle safely into the community.

Frances Crook, Chief Executive of the Howard League for Penal Reform, said:
“We welcome today’s decision, which offers hope to children and young people in prison.

 

“The Howard League’s legal team has represented many hundreds of children in prison and we want them to thrive inside and on release. Legal aid gets them the best help to achieve that.”

Deborah Russo, Joint Managing Solicitor at the Prisoners’ Advice Service, said: “We are delighted with the outcome of today’s hearing. 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.

“We therefore welcome today’s judgment, which now allows for a full hearing of the case and are thrilled to be now given the opportunity to put forward our case for legal aid for the most deprived and disadvantaged of prisoners.”

Notes to editors

  1. The Court of Appeal heard oral argument on 7 July 2015.  The case was before Lord Justice Leveson, Lord Justice Tomlinson and Lady Justice Sharp.
  2. The seven key areas of cuts to legal aid under challenge are:

    (1) Cases before the Parole Board about a move towards open conditions, otherwise known as pre-tariff reviews and return to open condition cases;

    (2) Prisoner eligibility for one of the few available places in mother and baby units;

    (3) Prisoner segregation and placement in Close Supervision Centres;

    (4) Category A reviews;

    (5) Access to offending behaviour courses

    (6) Resettlement and licence conditions

    (7) Disciplinary proceedings (where no additional days may be awarded)

  3. The Justice Committee’s year-long inquiry into the impact of the Government’s programme of reforms and efficiency savings across the prison estate raised concerns about the deterioration in safety. The report was published in March 2015 and is available here: http://www.parliament.uk/business/committees/committees-a-z/commons-select/justice-committee/news/report-prisons-planning-and-policies/
  4. The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
  5. The Prisoners’ Advice Service is an independent registered charity which provides legal advice and information to prisoners in England and Wales regarding their rights, the application of the Prison Rules and conditions of imprisonment.
  6. The Howard League for Penal Reform and the Prisoners’ Advice Service are jointly represented in these cases by Simon Creighton of Bhatt Murphy Solicitors, Phillippa Kaufmann of Matrix Chambers, and Martha Spurrier and Alex Gask of Doughty Street Chambers.

Further information

 

Rob Preece

Press Officer

The Howard League for Penal Reform

Tel: +44 (0)20 7241 7880

Mobile: +44 (0)7714 604955

Email: robert.preece@howardleague.org

ISDN line available on 020 7923 4196 – uses a G722 system

For enquiries outside normal office hours, please call +44 (0)7918 681094.

 

Deborah Russo

Joint Managing Solicitor

The Prisoners Advice Service

Tel: +44 (0)20 7253 3600

Tel: deborah.russo@prisonersadvice.org.uk

 

Judges warn lack of legal aid increasing burden on courts

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A rise in the number of people representing themselves in person at Court of Appeal hearings is posing an “increasing problem”, a leading judge has warned.

Lady Justice Black – who sits in the Court of Appeal – said the task facing judges was “infinitely more difficult” when people were not represented by lawyers.

She has raised concerns in the wake of warnings from lawyers that Government cuts in legal aid provision would lead to a rise in the numbers of litigants in person and pose problems.

A year ago Maura McGowan QC, then chairman of the Bar, said savings resulting from cuts might pale against an increase in court costs because cases featuring litigants in person would last longer.

And Lady Justice Black said she also had previously spoken about “the cost to individuals and to the legal system of the absence of legal assistance”.

Her latest comments have been made in a written ruling after a woman represented herself in a Court of Appeal hearing – analysed by Lady Justice Black and two other appeal judges – when challenging a county court judge’s decision to place her four children into care.

“This case is illustrative of an increasing problem faced by this court,” said Lady Justice Black.

“More and more litigants appear in front of us in person. Where, as here, the appellant is unrepresented, this requires all those involved in the appeal process to take on burdens that they would not normally have to bear.”

Lady Justice Black, who used to be a judge in the Family Division of the High Court, added: “Everyone involved in public and private law children cases is attempting to achieve the best possible result for the children whose welfare is at the heart of the proceedings and, without legal representatives for the parties, that task is infinitely more difficult.”

Appeal judges concluded that the county court judge had not evaluated all options to care or adoption and said the case should be re-heard in a county court.

The woman and her children were not identified but appeal judges said the local authority involved was Stockport Metropolitan Borough and the case had initially been heard in Manchester County Court.

Top Judges savage legal aid cuts

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Senior judges led by the lord chief justice and master of the rolls have weighed in to the fevered debate about Transforming Legal Aid by issuing their own sharply worded critique of the plans.

The 10-strong Judicial Executive Board’s 25-page response to the consultation raises fundamental concerns about access to justice, the likely adverse impact on the legal profession, and the potential for ‘false economies’ that will see costs merely shunted elsewhere in the system rather than actually saved.

The judges acknowledge the need for savings and greater efficiency. But they voice fears that the proposed model for price-competitive tendering (PCT) will compromise the performance of the courts and the administration of justice, by reducing the quality of case preparation and representation.

The judges note that ‘many lawyers’ have already ceased to act in legal aid cases and that those entering the profession seek to avoid publicly funded work ‘if their ability and promise permit them the choice’.

They add: ‘Able practitioners who remain active in publicly funded fields, particularly in crime, family and judicial review, are often in evident overstretch, because, unsurprisingly, the services they offer are in greater demand than those offered by their less competent colleagues.’ The judges say the reforms will exacerbate that situation.

The judges steer clear of addressing the principle of competition and client choice, saying it would not be appropriate for them to comment on government policy.

However, they warn of ‘significant practical problems’ of such a ‘fundamental change of approach’.

They highlight the importance of the relationship of ‘mutual trust’ between a client and their representative in ensuring that the justice system works efficiently, particularly for repeat offenders who have often used the same firm for years.

‘The relationship is likely to be more constructive when the parties have entered into it freely, rather than when it was imposed,’ they add. ‘Most defendants are not interested in the efficient operation of the criminal justice system…Their co-operation is usually achieved by their accepting the advice from a solicitor with whom they have an existing relationship.’

With the removal of client choice, one of the current ‘safeguards’ against poor quality, they stress the need for a ‘robust quality review and assurance process’ which will guarantee high-quality provision.

Without this, there is ‘real risk that the firms obtaining contracts will employ those who will take the lowest salary in order to maximise the firm’s profits’. They cite the example of immigration law, where ‘in order to maximise profits, solicitors are employing trainees or unqualified staff to conduct work that should be done by qualified lawyers’.

The market chaos wrought by cutting the number of providers from 1,600 to 400 will mean ‘significant transition’ as smaller firms either restructure or close, which ‘may have an adverse impact on the performance of the criminal courts’, they add.

In the longer term, there is a ‘danger that the anticipated reduction in the number of solicitors’ firm may make legal services a difficult market for new bidders to enter’ in subsequent tendering rounds.

Fee levels are a matter for the government, the judges say, but they draw attention to their impact on the quality of advocacy and equality of arms.

They add: ‘Many young and talented lawyers are no longer choosing to practise in crime. However, if the more talented lawyers do not work in crime, the impact will be not only on the quality of defence, but also on the quality of the prosecution, many of whom are drawn from the same pool, whether currently employed by the CPS or working as self-employed practitioners.

‘In the long term, there will be a negative impact on the quality of the judiciary.’

They also express concern that the removal of an uplift for immigration and asylum upper tribunal cases, will make the that area of law ‘uneconomic’ and lead to the ‘collapse’ of firms working in that field.

They note: ‘The level of fees must be commensurate with the level of responsibility and sufficient to attract able people into publicly funded work and to retain them.’

Some of the proposed changes, they warn, are likely to ‘transfer’ rather than save costs. They highlight the fact that good advocacy reduces costs, as cases take less time and the risk of miscarriages of justice is reduced.

Their response points out that defendants in criminal cases, whose means exceed the financial eligibility threshold, may be left to represent themselves, adding to the length and cost of cases.

They express ‘principled reservations’ about limiting the ability of defendants who are not entitled to legal aid to reclaim costs where they are acquitted, stating that in general acquitted defendants should be entitled to reclaim the ‘reasonable cost’ of their defence.

On other aspects of the PCT model, the judges question whether the large contract areas will ensure sufficient coverage, and express the need for any contractual arrangements to make provision for Welsh-speaking representatives, currently absent from the consultation.

They also warn of the ‘inherent risk’ in allowing entities to bid for contracts without being subject to regulation and the relevant quality standards, and question what will happen if a successful bidder fails to meet the standards.

On other aspects of the consultation, the judges ‘generally accept’ the proposals to restrict legal aid for prison law. The judges suggest that permission hearings for judicial review should be funded, except in cases that are ‘totally without merit’.

In relation to ‘borderline’ cases, the judges suggest the re-creation of local communities of lawyers to advise the Legal Aid Agency on whether it should fund cases.

The judges welcome the government’s ‘commendable objectives’ to maintain an independent bar, protect the earnings of young barristers and ditch the introduction of ‘one-case, one-fee’.

The senior judges’ response is couched in judicial language, but following excoriating attacks on the proposals by the Council of Circuit Judges and criticism from the Magistrates’ Association, it amounts to another embarrassment for the government.

The consultation, which has been condemned not just by lawyers, but by charities, human rights groups and the former lord chancellor Lord Mackay, has received an unprecedented response.

Lord McNally told BBC Radio 4’s Law in Action, that 15,000-20,000 responses had been received, although he indicated that some had been submitted as part of an orchestrated campaign rather than by individuals.

The Judicial Executive Board comprises:

  • Lord chief justice (Lord Judge) (pictured)
  • Master of the rolls (Lord Dyson)
  • President of the Queen’s Bench and Deputy Head of Criminal Justice (Sir John Thomas)
  • President of the Family Division (Sir James Munby)
  • Chancellor of the High Court (Sir Terence Etherton)
  • Vice President of the Queen’s Bench (Lady Justice Hallett DBE)
  • Chairman of the Judicial College (Lady Justice Hallett DBE)
  • Senior president of tribunals (Sir Jeremy Sullivan)
  • Senior presiding judge (Lord Justice Gross)
  • Chief executive Judicial Office (Jillian Kay)

Legal Aid Cuts Threaten ‘World Renown’ British Justice System – and riots in our jails

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Government plans to overhaul legal aid threaten to destroy the “world-renowned” British justice system, barristers have told ministers – and prison experts have said the measures threaten such a level of national unrest inside our jails that they could eventually cost far more than any potential savings would ever hope to save.

The Bar Council, which represents barristers in England and Wales, has published its response to the Ministry of Justice consultation on legal aid reform, which includes paving the way for lawyers to compete for contracts.

The 150-page response said price competitive tendering (PCT) promotes the “lowest possible quality of service” and will result in further changes to civil legal aid, hitting society’s most vulnerable people.

Other changes will see criminal defendants living in households with a disposable income of £37,500 or more stopped from automatically accessing legal aid, while prisoners’ rights to the support will also would be curbed.

Maura McGowan QC, chairman of the Bar Council, said: “There is no avoiding the simple fact that these proposals would move us from having a justice system which is admired all over the world, to a system where price trumps all.

“PCT may look as though it achieves short-term savings, but it is a blunt instrument that will leave deep scars on our justice system for far longer. Further cuts to the scope of civil legal aid will limit access to justice for some of the most vulnerable. That is a legacy of which no Government should be proud.”

She added: “The proposals simply do not have a sufficient evidence base on which to attract support. We believe that if these proposals are implemented as they stand, the system will go very badly wrong. Once implemented, these measures cannot be easily reversed.”

Ms McGowan QC said Justice Secretary Chris Grayling should achieve any required reforms “without destroying a world-renowned institution”.

The Bar Council response said that the proposals would destroy the livelihoods of many smaller solicitors’ firms and the criminal defence Bar.

Criminal legal aid costs taxpayers more than £1 billion every year and the proposals should cut the bill by £220 million.

In April, reforms to the Legal Aid, Sentencing and Punishment of Offenders Act (Laspo) came into effect, removing large areas of law from the scope of civil legal aid.

Some law firms estimated the reforms will reduce the number of people who qualify for legal aid by 75%, meaning around 200,000 fewer cases, while barristers warned the cuts are the biggest to civil legal aid since the system was introduced in 1949.

In its response to the consultation, the Bar Standards Board (BSB), the body responsible for regulating barristers, said plans to pay legal aid lawyers the same amount for a “guilty” or “not guilty” plea could lead to defendants being pressurised into pleading guilty.

It said cases where the defendant enters an initial guilty plea are typically shorter and so cheaper than trials to assess guilt.

Setting the same fee for cases where a defendant pleads guilty and for longer trials may create an incentive for lawyers to encourage clients to plead guilty.

Bar Standards Board chair Baroness Ruth Deech said: “These reforms may endanger the ability of our legal system to guarantee everyone a fair trial.

“While we accept that the current austerity measures are a consequence of the financial climate, protecting the public, and ensuring criminal cases are dealt with fairly and justly, remain of the utmost importance.”

Mr Grayling said: “We have one of the best legal professions in the world.

“But at a time of major financial challenges, the legal sector cannot be excluded from the Government’s commitment to getting better value for taxpayers’ money. We believe costs paid to lawyers through legal aid should reflect this.

“Professional, qualified lawyers will be available, just as they are now, and contracts will only be awarded to lawyers who meet quality standards set by the profession.

“Wealthy defendants who can afford to pay for their own legal bills should do so. Our proposal is to introduce a threshold on Crown Court legal aid so that people earning around £100,000 a year are no longer automatically granted legal aid.

“We have one of the most expensive legal aid systems in the world, with about £1 billion a year spent just on criminal legal aid.

“These changes are about getting the best value for the taxpayer and will not in any way affect someone’s right to a fair trial.”

The disposable income cap of £37,500 per household would impact defendants with six-figure salaries, an MoJ spokesman added.

But Mark Leech, editor of Converse the national newspaper for prisoners in England and Wales said those figures were disputed by many prison law experts, and the threatened cuts in legal aid could end up ‘costing far more than the measures would ever save’.

Mr Leech said: “Look, its not rocket science, but history shows there comes a policy tipping point where one cut too much results in a backlash inside our overcrowded powder-keg prisons, which are things that we desperately need to avoid – these things can rapidly spread nationally, caused by cuts that while understandable politically are nontheless, in practice, just one cut too many.”

Mr Leech explaned: “In 1990 the riot at Strangeways prison in Manchester spread within days to 13 other prisons, it cost the taxpayer over ninety million pounds, people died, no one wants to be seen talking these things up, and certaintly not me – but we can’t ignore history nor the facts or the consequences that we know from history are seriously likely to occur.

“The lesson now, before its too late is this: Stop, don’t pick on vulnerable prisoners any more, they’re a soft political target but history also shows that pushed too far they are a formidable resistable force which when unleashed  has an incredible national impetus – try focusing  on the bankers (or ‘Banksters’ as they’ve become known) instead – or at least as a minimum let’s have a rational national debate about its policy.

“It’s not too late – but we really do need to be now all on the same side.”