Evidence submitted by Howard League for
Penal Reform (LAR 165)
1. INTRODUCTION
1.1 These are the submissions of the Howard
League for Penal Reform to the Constitutional Affairs Committee
on the implementation of the Carter Review. The focus of these
submissions is the wider impact of the proposed changes on the
justice system from a penal reform perspective, and in particular,
the disproportionate effect that the changes are likely to have
on children in the justice system. The Howard League's unique
perspective on these issues is informed by its dual roles as a
non governmental organisation concerned with penal reform and
an organisation that provides legal advice and representation
to children in custody through its legal department.
2. ABOUT THE
HOWARD LEAGUE
FOR PENAL
REFORM
2.1 The Howard League for Penal Reform is
the oldest penal reform charity in the UK. It was established
in 1866. The Howard League is entirely independent of government
and is the only NGO in this field to have its own dedicated legal
department. As part of its agenda for penal reform, the Howard
League commissions reports, inquiries and research. It also engages
with relevant bodies at a policy level.
3. THE LEGAL
DEPARTMENT—DEDICATED
TO REPRESENTING
CHILDREN IN
CUSTODY
3.1 Prior to the launch of the legal team
within the Howard League in 2002, there was no dedicated legal
representation for children in custody.
Children in and leaving custody are one of the
most vulnerable groups in society. The picture as summarised by
Mr Justice Munby in a case brought by the Howard League for Penal
Reform in 2002, sadly remains an accurate reflection of our client
base today:
"[Children in custody] are, on any view,
vulnerable and needy children. Disproportionately they come from
chaotic backgrounds. Many have suffered abuse or neglect. Over
half of the children in YOIs have been in care. Significant percentages
report having suffered or experienced abuse of a violent, sexual
or emotional nature. ... Many reported problems relating to drug
or alcohol use. Many had a history of treatment for mental health
problems. Disturbingly high percentages had considered or even
attempted suicide."[103]
3.2 Children in custody are also amongst
the most vulnerable groups in society in terms of accessing justice:
they tend to have only come across criminal practitioners with
no or limited knowledge of prison law or community care law and
tend to remain unaware of their rights and potential legal remedies.
As a consequence, this group represents a serious challenge to
the Legal Services Commission's objective of ensuring that "everyone
in society has access to justice, in protecting fundamental rights
and in helping people to make improvements in their lives"
as set out in the CLS strategy paper.
3.3 The Howard League's legal department
was set up following the Children Act case and has a LSC criminal
contract with a specialism in Prison Law. The work of The Howard
League for Penal Reform's legal department has provided access
to justice for many children in custody. Not only does the team
deal with treatment and conditions inside prison but has increasingly
dealt with issues concerning the provision of support and accommodation
for children on release from custody, thereby addressing the social
welfare concerns highlighted in the CLS strategy and enabling
children to leave custody with improved lives that are far less
likely to accumulate a "cluster" of legal problems in
the future. A report of the resettlement work with children leaving
custody was published in September 2006[104]
and evidences the systematic failure of local authorities to comply
with their duties under the Children Act 1989 for this group.
Such failures are amenable to legal challenge and the work of
the department has led to many vulnerable children receiving support
to which they are entitled and which will enable them to make
a fresh start on leaving custody.
3.4 The resettlement work that the legal
team undertakes is not geographically based. Due to the limited
number of penal establishments for children and young people,
our clients are often incarcerated in areas far away from their
homes. There would therefore be no ideal geographical base from
which our work could be carried out. The fact that we deal with
establishments and local authorities all over the country provides
us with a very real sense of what the systematic problems are
both in social services departments and in penal establishments,
which in turn informs our ability to litigate effectively—and
avoid litigation where possible. It is hard to see how the resettlement
work carried out by the legal team could continue under the proposed
changes which envisage tight geographical areas of work and the
termination of civil social welfare work by independent contractors
where a CLAC has been set up in a local area.
3.5 In addition, the Howard League has brought
many cases in the higher courts that have significantly contributed
to the development of the law for children in and leaving custody.
Examples include the Caerphilly case which set guidance on the
nature of assessments for children leaving care and confirmed
that meaningless assessments are amenable to judicial challenge
and the recent case of R(K) v The Parole Board which has clarified
the need for children to have assistance in understanding the
parole process and their parole dossiers as well as placing a
duty of the parole board to ensure that the child is aware of
the possibility of a right to an oral hearing.
4. GENERAL OBSERVATIONS
CONCERNING LORD
CARTER'S
REVIEW
4.1 The Howard League's concerns about the
proposals are two-fold: First, we are concerned that the proposals
will have a severe impact on the work that the Legal Department
does. Second, as a charity concerned with penal reform we are
concerned about the broader implications of the proposals on the
justice system and the disproportionate effect they may have on
vulnerable people requiring good quality representation.
4.2 Impact on the Legal Department of
the Howard League
The volume and nature of the work the legal
department undertakes highlights a real need for the provision
of advice, assistance and representation for children in custody.
However, we could not do much of the work that we do outside the
legal aid system. Neither Lord Carter's review nor the LSC explicitly
deal with how organisations such as the Howard League that undertake
specialist casework will fit into the new regime. However, it
is widely understood that fixed fees will be implemented across
the board and that larger and more generalist providers will be
favoured. The legal department's employed solicitors will not
bow to the pressure of fixed fees: the clients that the Howard
League deal with are simply too vulnerable to deal with in any
way other than as their needs dictate. This is likely to lead
to the unhappy situation of the charity effectively subsidising
the legal aid system. Moreover, as other practitioners succumb
to the pressure of fixed fees, we fear that we will be inundated
with clients or will simply not be able to refer vulnerable clients
with complex needs on to other providers.
4.3 Further, it is unclear whether under the
new proposals a supplier such as the Howard League legal department
will be able to continue to do legal aid work at all. The Legal
team is a small outfit providing specialist services to a disenfranchised
client base that simply does not fit in with Lord Carter's high
volume and capacity ideals that emphasise "value for money"
being achieved through "economies of scale". The uncertainty
of whether we will be able to survive from year to year is unsettling
for our clients and disruptive to the development of the department.
4.4 It is submitted that if we were unable to
continue to do our legal work, this would cause severe detriment
to one of the most vulnerable and disenfranchised client bases.
We fear that the professionals working in the criminal justice
and penal system with whom we have built up relationships over
the years who are able to refer children to us would have difficulty
in building up similar relationships with a range of providers
all over the country and that, as a consequence, the effect will
be to reduce access to justice for this vulnerable group.
4.5 Moreover, the Howard League's legal team,
working in conjunction with the Howard League as a whole, fits
squarely with the professed objectives of the Legal Services Commission
as set out in the CLS strategy by:
— increasing access to justice for
and representing vulnerable people;
— providing information and education
to potential clients about their legal rights and training other
professionals about these rights so as to prevent these problems
occurring (at no expense to the Commission); and
— pursuing an agenda for change either
through legal work of though the organisation itself so that the
need for legal remedy is reduced.
4.6 Broader implications
The Howard League is generally concerned about
the impact that Lord Carter's reforms will have on vulnerable
people in the justice system. Taking children as an example, it
is clear that fixed fees are likely to have a severe impact on
child defence work as working with children is inevitably more
complex and time consuming and under the new system will therefore
become one of the least well remunerated areas of work. If other
practitioners cease to represent child defendants because of this,
the result is likely to be that these children will be denied
the quality of representation that they are entitled to.
4.7 Although the potential effects on child
defendants serve as a stark example, there are similar concerns
for all clients passing through the criminal justice system. The
prison population is at an all time high and there is concern
that a rigid fixed fee system for crime will result in swift justice
that does not necessarily accommodate a detailed exploration of
viable alternatives to custody. Detailed and persuasive mitigation
takes time to prepare. The Lord Chief Justice has repeatedly confirmed
the need for a greater use of community sentences and the Howard
League has been campaigning for this vigorously. However, there
is a real fear (and compelling evidence in the Law Society commissioned
research) that many firms will simply turn away from legal aid
under the new regime as it will simply not be financially sustainable.
Further, the cost of incarceration is considerably more than the
legal aid spend and any further increase in the prison population
as a result of poor representation might well represent an increased
burden on the tax payer.
5. CONCLUSION
AND RECOMMENDATIONS
5.1 Access to justice and good quality representation
is essential for an effective and fair justice system. Further
vulnerable clients, such as children are likely to be penalised
because of their vulnerabilities which give rise to extra demands
on time and complexities. This is intuitively unfair and the Carter
review does not appear to address this issue sufficiently or provide
for enough flexibility for it to be dealt with.
5.2 The proposals as they stand could have a
disproportionate effect on vulnerable clients and their providers,
especially small outfits that provide and efficient and good quality
service.
5.3 It is therefore respectfully submitted that
the Committee should consider:
(i) recommending that the Government institute
an urgent and substantial rethink of the proposed changes.
(ii) recommending that the Government place
a moratorium on the changes pending the reconsideration of the
reforms
(iii) recommending that the Government introduce
safeguards for vulnerable clients such as child clients by ensuring
that the new system is sufficiently flexible to enable the good
quality representation for vulnerable clients.
5.4 It is hoped that the Committee will
take on board these comments and consider raising these concerns
in its recommendations.
October 2006
103 The Queen (on the Application of the Howard League)
v Secretary of State for the Home Department and the Department
of Health [2003] 1 FLR 484, paragraphs 10 and 11. Back
104
Chaos, Neglect and Abuse, The Howard League, September 2006. Back
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