The Queen on the application of the Howard League for Penal Reform and Prisoners’ Advice Service -v- The Lord Chancellor.  Court of Appeal hears challenge to legal aid cuts for prisoners

Three years on from the cuts imposed by the then Lord Chancellor, Chris Grayling, the Court of Appeal, this week the Court of Appeal heard arguments from the two charities and the Lord Chancellor in a hearing that lasted the best part of a day and a half.

Phillippa Kaufmann QC, acting for the Howard league for Penal Reform and the Prisoners’ Advice Service, told the court that the cuts had resulted in a system that was inherently unfair.  She argued that the Criminal Legal Aid (General) (Amendment) Regulations 2013 were ultra vires on ground that they produce an inherently unfair system in respect of five areas that were previously funded by legal aid:

1. All Parole Board cases where the Board does not have the power to direct release
2. Category A reviews
3. Access to offending behaviour courses
4. Disciplinary proceedings (where no additional days may be awarded) and 
prison disciplinary hearings
5. Placement in Close Supervision Centres

The Court, which consisted of Lady Justice Gloster, Lord Justice Patten and Lord Justice Beatson, heard from Ms Kaufmann QC that the situation for prisoners was completely different from other challenges concerning the effectiveness of the exceptional case funding scheme. In those cases, the legal challenges focused on the difficulties that people faced in navigating the system of securing funding.

As a consequence of the series of cases about exceptional funding, the Lord Chancellor was able to introduce guidance in an attempt to change the system to remedy those defects. By contrast, the issues in this case were completely different. There simply is no scheme that can be improved to assist prisoners in the five areas of law under challenge.

Since the claim commenced, the Lord Chancellor has made a number of concessions bringing certain areas of law within the scope of the exceptional funding scheme. As a consequence, these areas were no longer contested in this case. The debate about how prisoners effectively access the scheme is an important issue, but not within the scope of this challenge.

Therefore much of the argument in court focused on whether or not what remained in place for prisoners was capable of achieving fairness across the run of cases.

Phillippa Kaufmann QC argued on behalf of the charities, who brought this case in the public interest, that fairness depended on a number of factors. These included the nature of decision to be made, its complexity and what is at  stake  for the prisoner, as well as the circumstances of the individual affected. She drew the court’s attention to the statement of Frances Crook, Chief Executive of the Howard League, which described the crisis in our prisons.

Hugh Southey QC, on behalf of the Equality and Human Rights Commission which intervened in the case, highlighted the impact of the cuts on prisoners as a group that tend to have an array of protected characteristics.

On behalf of the Lord Chancellor, James Eadie QC, argued that the system was sufficiently flexible to ensure fairness on the whole, noting that the case law recognises that no system is without risk. In particular, he relied on the inquisitorial nature of the Parole Board.  He also placed reliance on the availability of complaints processes and judicial review on the basis that they enable an unfair decision to be corrected. He argued that unfairness only arises when  an unfair decision goes uncorrected.

In reply Ms Kaufmann QC argued that the unfairness that the charities’ challenge was concerned with was unfairness at first instance. Reviewing bodies can only require the decision to be taken again, where the prisoner will continue to face the original unfairness.

To the surprise of the charities, James Eadie QC submitted that the system could operate with such flexibility that the Secretary of State could cure any identified unfairness, including making provision for unrepresented prisoners to have representation, although no examples were provided of this ever happening and no explanation was given as to how this would be funded.  He also argued that the provision of pro bono assistance by organisations such as the very charities bringing the claim was a further safeguard.

The parties have been invited to provide further note setting out the best evidence within the information before the Court in respect of the five areas of law under challenge within 14 days. Judgment was reserved.

The charities are grateful for the work of the legal team, Phillippa Kaufmann QC of Matrix, Alex Gask of Doughty Street Chambers and Simon Creighton of Bhatt Murphy Solicitors.