The implications for access to justice of the Government's proposals to reform legal aid

The implications for access to justice of the Government's proposals to reform legal aid - Human Rights Joint Committee Contents

3 Prison law

Background

148. Civil and criminal legal aid is currently available to prisoners subject to means and merits. No distinction is made for civil legal aid funding between prisoners and non-prisoners. Prisoners are currently able to apply for funding for legal advice and assistance, which is funded under the criminal legal aid scheme for:

a) Complaints regarding treatment;

b) Sentencing issues;

c) Disciplinary matters;

d) Parole Board reviews.

Advocacy Assistance funding is provided for some disciplinary matters and Parole Board reviews. In addition, in certain cases the matter may move into or commence within the scope of civil work - for example, applications for judicial review or habeas corpus - and this will be funded under the civil legal aid scheme.

149. Since July 2010 providers of criminal legal aid to prisoners have had to seek approval from the LAA before providing any advice or assistance in relation to claims regarding treatment in prisons. Part of the merits criteria for the approval of legal aid funding was to approve funding only if there would be a sufficient benefit to the client and a realistic prospect of a positive outcome. In addition, since 2010 funding has not been available for matters which could be resolved using the internal complaints procedures unless the providers demonstrate that their client would not be able to use the system. The LAA indicated to the Government that 11 treatment cases have received approval since July 2010,[123] of which most involve prisoners with mental health issues or learning disabilities.[124]

THE ORIGINAL PROPOSAL

150. In its first proposal, the Government proposed to restrict access to legal aid funding to cases that:[125]

a) "involve the determination of a criminal charge for the purposes of Article 6.1 ECHR (right to a fair trial);

b) engage Article 5.4 (right to have lawfulness of ongoing detention reviewed); and

c) require legal representation as a result of successful application of the "Tarrant" criteria".[126]

THE MODIFIED PROPOSAL

151. The Government received numerous responses to its first consultation question concerning the restriction of criminal legal aid for prison law matters. The key concerns were:

· the impact would be disproportionate on under-18s in custody, particularly around resettlement issues and the ability of young people to engage with the complaints system;

· the removal from scope of categorisation and licence conditions matters could have an impact on sentence length as well as increased costs as a result of keeping a prisoner in more secure conditions for longer than necessary;

· prisoners with mental health issues, disabilities or where English is not their first language would face difficulties using the complaints system;

· a complaints system that prisoners have confidence in is needed to ensure safety within prisons;[127]

· the Prisons and Probation Ombudsman ("PPO") would not be able to handle the increased workload;

· the PPO and Independent Monitoring Board ("IMB") can only make recommendations and not binding decisions;

· there would be no funding for serious treatment cases. Prisoners could be held in segregation or be making a serious complaint against a member of staff but would have no legal way of challenging these decisions;

· treatment issues involving allocation of places in mother and baby units would be excluded from funding, and the nature of such cases requires provision of legal advice and assistance; and

· that the proposal would not save money as the fixed fee for legal aid advice and assistance is £220 as opposed to the cost per complaint investigated by the PPO of £830.[128]

152. The Government responded to the concerns with the following counter-arguments:

· the internal systems within youth institutions are sufficient to enable young people to address issues relating to their detention;

· young people in Secure Training Centres can appeal to the statutory Monitor,[129]and advocacy services are found within the secure estate to assist young people with the system;

· from 1 July 2013 Barnardos have provided the advocacy services across all Secure Training Centres and Young Offender Institutions;

· since the end of September 2013 young people in Secure Training Centres have been able to take their case to the PPO and refer a complaint to their Local Authority. Young people in Youth Offender Institutions can also refer their complaint to the PPO or the IMB;

· cases where sentence calculation or direct release were being considered would be given legal aid funding although re-categorisation cases could be dealt with using the internal complaints system; and

· the processes and assistance available are sufficient to help prisoners with disability or mental health issues—prisons must inform prisoners about the complaints system and allow prisoners to make a complaint and receive the response in a format suitable to them.

153. After considering the consultation responses, the Government decided to proceed with their original proposal but decided that two further types of cases would be exempt from the restriction to prison law legal aid funding. These two types of cases are:

a) "all proceedings before the Parole Board, where the Parole Board is considering whether to direct release (as opposed to all cases that engage Article 5.4 ECHR); and,

b) advice and assistance in relation to sentence calculation where the date of release is disputed."[130]

154. In addition, as Simon Creighton told us,[131] the Government decided to exclude legal aid from matters related to sentence planning and minimum term review applications,[132] despite having stated its intention to retain these cases within the scope of legal aid in the first consultation paper;[133] this exclusion was therefore not subject to consultation.

155. The Government laid a negative instrument before both Houses of Parliament on 4 November 2013 to make the necessary amendments to secondary legislation to give effect to the proposal to limit the scope of criminal legal aid for prison law cases.[134] The praying time in respect of this instrument expires at the end of the Lords sitting on 18 December 2013. Lord Pannick QC has put down a regret motion in relation to the instrument.

The rights engaged

156. The issue of prisoners' access to justice has been a matter of interest to the UK's national courts and the ECtHR. Many of the key cases on Article 6 and common law rights of access to justice involve prisoners, including Golder v United Kingdom, where a prisoner who wished to bring defamation proceedings against a prison officer was refused permission to consult a solicitor. In this case the ECtHR held that Article 6 contained an implied right of access to the courts, which had been violated by this refusal.

157. It is also clear from the history of the development of prison law that the common law principle of legality is firmly engaged by these proposals: Parliament is to be presumed to intend its laws to be interpreted in accordance with the rights recognised by the common law to be fundamental, including the right of access to court, unless it makes clear by express language its intention to do otherwise. In the absence of such express statutory language, any interference with common law rights of access to justice must be the minimum necessary to achieve the proposed legitimate aim.[135] Indeed, some of our witnesses argued that the protections afforded prisoners by the common law go beyond those afforded by the ECHR:

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158. The right of access to court is not an absolute right but may be subject to limitations: this was recognised by the European Court of Human Rights itself in Golder v UK, in which it said that the right "by its very nature calls for regulation by the state, regulation which may vary in time and place according to the needs and resources of the community and of individuals." Such limitations on the right of access to court must pursue a legitimate aim and comply with the principle of proportionality. The State is also afforded a certain margin of appreciation by the European Court of Human Rights when deciding on such limitations, particularly when the limitation on effective access flows from decisions about the allocation of scarce public resources to legal aid funding. Even such limitations, however, must not be arbitrary or impair the very essence of the right.

Legitimate aim

159. The Government has been clear about the rationale behind its proposals on amending the scope of criminal legal aid for prison law: it is "to focus public resources on cases that are of sufficient priority to justify the use of public money,"[137] in the conviction that better targeted legal aid spending ensures that public can have confidence in the legal aid scheme. The explanatory memorandum to the statutory instrument that has been laid to introduce this proposal states that "the primary objective of the reform package is to bear down on the cost of legal aid."[138]

160. The Lord Chancellor elaborated on the rationale behind the proposals in his oral evidence to us:

I started from the point of principle: that I think it is important, at a time when we are taking some very difficult financial decisions, to have a legal aid system that people look at and say, "That is fair, and I can have confidence in it". I struggle personally to believe that it is sensible to have a system where we have prisoners able to access the courts, and access public funds, to argue that they should be detained in a different prison [...] I think it is necessary to have nonjudicial complaints procedures that have a final say, and that is what I believe should happen in our prison system [...] There are limitations to how much you can use the courts as a backstop, with all the costs that carries with it.

161. Several witnesses disputed the suggestion that prisoners were applying for legal aid because they did not like their prison. They told us that this type of issue had already been removed from the scope of funding, precisely because it could be dealt with by internal procedures, but that the remaining rights of access to legal funding had remained because they were considered to engage legal issues, and the witnesses provided clarification as to how some treatment matters had continued to receive funding after the changes.[139]

162. Indeed, providers of criminal legal aid, since July 2010, have had to seek approval from the Legal Aid Agency before providing any advice in relation to treatment in prisons. The Specification to the Standard Crime Contract specifies that:

"We will not ordinarily expect to fund a Treatment Case, which concerns a complaint by a Client about his or her living conditions in Prison ... unless the Client has severe mental health problems or severe learning difficulties such that, even with the help of other prisoners or staff, he or she is not able adequately to formulate his or her complaint effectively."

163. We have not seen any evidence to suggest that legal aid is being abused to enable prisoners to complain about what prison they are put in or about their living conditions: legal aid is already unavailable for such claims. Nevertheless, it clearly constitutes a legitimate aim for the Government to seek to focus public resources on cases that are of sufficient priority to justify the use of public money, and this is a matter on which the State is entitled to margin of appreciation in deciding how to allocate scarce public resources.

164. Amending the scope of criminal legal aid for prison law is therefore not inherently incompatible with the right of access to court. Rather, the human rights question we have considered is whether the Government's proposals for doing so give rise to a reasonable chance or a serious possibility of breaches of the right of effective access to justice in particular cases.[140] To answer that question, it is necessary to consider whether the proposals constitute a proportionate means of achieving the Government's legitimate aim, having regard to the scope of the exceptions which the Government proposes to carve out of the limitation, the adequacy of alternative avenues of redress for prisoners, and any other safeguards designed to ensure that the right of access to justice is not infringed.

Proportionality

165. The Lord Chancellor told us that he was satisfied that his proposals for restricting the scope of criminal legal aid and advice and assistance for prison law matters comply with Article 6. He provided the following reasons:[141]

Firstly, if the matter involves a determination of a criminal charge within the meaning of Article 6.1, it will remain within the scope of criminal legal aid advice and assistance under the revised scope criteria.

Secondly, the proposals in relation to criminal legal aid advice and assistance do not in themselves affect the availability of civil legal aid within the scheme under LASPO. Accordingly, if a prison law matter involves the determination of civil rights or obligations within the meaning of Article 6.1 ECHR (and is not within the scope of criminal legal aid advice and assistance) civil legal aid may be available, subject to merits and means, for example for judicial review of a decision in that prison law matter. [...].

AVAILABILITY OF JUDICIAL REVIEW

166. As the written evidence from the Lord Chancellor makes clear, the type of legal aid under consideration within these proposals is for advice and assistance with internal prison complaints and appeal mechanisms, including, where appropriate, advocacy assistance. The written evidence from the Government suggests that the prison law proposals do not affect access to civil legal aid or judicial review funding. However, both these streams of funding are subject to the proposed residence test, and the current judicial review consultation proposals may also, if proceeded with, have an effect on access to judicial review.

167. In addition, our witnesses drew our attention to the structure of legal aid funding for public law challenges in the field of prison law, which restricts the number of "matter starts"[142] that solicitors may commence, which they suggested would prevent access to the courts in practice. Firms may at present commence publicly funded public law cases arising from prison law cases under a prison law contract through an 'associated Community Legal Service' (ACLS) scheme where the number of cases is not limited or a public law contract where the number of matter starts for all forms of public law challenge is limited to around 15 per year per firm. Our witnesses told us that if the majority of prison law work is removed from scope, it will only be possible for firms with a public law contract to provide representation with a consequent restriction on the number of matter starts. We asked the Lord Chancellor whether he intended to increase the number of matter starts. He told us that he thought the current balance was sensible, commenting that:

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168. We welcome in principle the Government's indication that civil legal aid will continue to be available to bring judicial reviews in relation to prison law matters, because this will preserve the possibility of access to court in the sorts of cases where such access is required. However, we agree with our witnesses that the Government cannot rely upon prisoner's retaining access to funding for judicial review, if the number of matter starts per year per firm remains restricted at the current level. If a matter is outside the scope of criminal legally aided prison law funding, we can envisage cases where a prisoner is unable to receive legal advice and representation because firms do not have enough matter starts to take on the case. Since there is no obvious practical alternative means for prisoners to seek legal advice such as attending a Law Centre, there is a clear risk of breach of Article 6 and common law rights in such a case.

169. We have also considered the effect of the proposed residence test on prisoners' access to civil legal aid funding, for example to bring a judicial review challenge. We question whether the combination of the restriction in scope of prison law matters and the residence test will in practice allow access to legal advice by prisoners. When issues relating to the restrictions in the number of matter starts are added to this, it may become practically impossible for some prisoners to gain access to legal advice so as to be able to exercise their common law and article 6 rights effectively. We ask the Government to give specific consideration to the combined effect of its residence test and prison law proposals, particularly given our criticism of the exceptional funding criteria above, and also invite the Government, in its response to this Report, to provide a full explanation of how access to justice rights will be maintained where both policies are in operation.

INTERNAL PRISON COMPLAINT SYSTEMS

170. As stated above, the Government relies upon the internal prison complaints system as part of its argument that the modified proposal in relation to prison law is a proportionate means of achieving the legitimate aim of targeting scarce public resources. Throughout our inquiry many witnesses raised concerns about this reliance, suggesting that the system was inadequate, and required significant changes in order to meet the proposed enhanced role.

171. All prisons must have an internal prisoner complaints system. Complaints should be responded to within 5 days. A prisoner can appeal the outcome up to 7 days after receiving the response, and a more senior member of staff will respond. A prisoner can make a confidential complaint to the governor, the Deputy Director of Custody or the local Independent Monitoring Board (IMB) if the complaint is of a serious or sensitive nature. A prisoner can pursue the complaint with the IMB at any time. If an issue is not resolved through the internal system a prisoner is able to apply for civil legal aid funding, subject to means and merits, for judicial review of a decision on a treatment matter case. Alternatively prisoners can pursue their complaint with the Prisons and Probation Ombudsman (PPO). Prisoners are given the PPO's response in writing. The PPO is an independent body and can make recommendations on a case. However, it cannot make binding decisions.

172. The Government considered that the current internal prison complaints systems were "sufficiently robust" for areas removed from the scope of criminal legal aid for prison law to be dealt with appropriately and adequately.[144] It cited, for example, the Prison Service Instruction 02/2012[145] which sets out the procedures that are designed to ensure that complaints from all prisoners are dealt with properly. The Government said that the instruction ensures that all prisoners are able to understand how to make a complaint, through information provided in formats that are suitable for the prisoner. As discussed below, other witnesses disagreed with this analysis and questioned the Government's reliance on the current system.

173. In Next Steps, the Government also explained the role of the National Offender Management Service (NOMS) with regards to the internal prison complaints systems. NOMS audits the complaints procedure and reports on whether systems are compliant with the instructions. The Government argued that the NOMS report found that overall the system is operating as set out with the instructions. The report made recommendations regarding provision of information in other languages and appeals. The Government said that these recommendations have been accepted.

174. In contrast, Her Majesty's Chief Inspector of Prisons, Nick Hardwick CBE, told us that the Government's response to concerns with the internal prison complaints system was "disappointing". For example, he argued that individuals with disabilities, particularly mental health problems, struggle to use the complaints system. He also told us that prisoner confidence in a complaints system was crucial to the overall safety of a prison.[146] He said that the "fundamental issue is that two-thirds of people who have had a complaint dealt with through the existing system do not think it has been dealt with fairly, and about one in 10 say they have been prevented in some way from accessing the complaints system".[147] This echoed Lord Woolf's conclusions on the importance of standards of justice to the overall safety of a prison in his 1991 report into the riots at the Strangeways prison.[148]

175. We also heard from the Prisons and Probation Ombudsman (PPO), Nigel Newcomen CBE, who told us about his concerns with the Government's proposal, particularly in relation to his lack of statutory independence and his office's ability to deal with any increased workload. He described his representations to the Government on the proposed changes as "fairly basic and blunt", suggesting that the Government needed to recognise the potential pressures that would be put on his organisation if there was a "very significantly increased demand and significantly reduced resource."[149]

176. Mr Newcomen discussed the difficulties that arise because his organisation does not have a "statutory footing that allows [him] to impose any formal decision of the kind [...] that a court process would allow", though he acknowledged that his recommendations are almost always accepted.[150] He also questioned whether "acceptance means action", and raised concerns that "there will remain a question as to how far a body that can only make a recommendation can guarantee that action will subsequently follow".[151] The Lord Chancellor told us that he did "intend to put the Prisoner and Probation Ombudsman on to a statutory footing when legislative time permits [...] It is something that is very much on our agenda and we will do it as soon as we can."[152]

177. We welcome the commitment from the Lord Chancellor to put the Prisoner and Probation Ombudsman on to a statutory footing and, given that the statutory instrument to bring the prison law changes into effect has already been laid, we urge the Government to bring forward legislation as a matter of urgency.

178. Witnesses also questioned the role of the Independent Monitoring Board, with the Prisoners' Advice Service arguing that 90-95% of the IMB's caseload is to do with property complaints (these are not funded through legal aid currently). Her Majesty's Chief Inspector of Prisons told us that 34% of prisoners said they did not know who the IMB were.

179. As to the legality of restricting legal aid so that only the internal or Ombudsman type procedures remain, the Bingham Centre for the Rule of Law drew the following conclusions:

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180. We accept that not all disputes concerning prisoners require the intervention of, or provision of advice by, lawyers and we do not consider that there is a general problem with the internal prisoner complaints systems. However, the evidence from our witnesses highlights areas where those systems are not working effectively. In the light of the Government's reliance on these systems, when seeking to justify the proposed restriction on legal aid as a proportionate means of achieving its legitimate aim, improvements are necessary.

181. As we set out below, however, we consider that in some cases only the retention of public funding will be sufficient to prevent infringements of prisoners' right of access to court arising in practice.

DISABILITY, MENTAL ILLNESS OR LACK OF CAPABILITY

182. The Government argued, in Next Steps, that the PSI 02/2012 provides procedures for complaints, including complaints made by prisoners with mental health issues and/or learning disabilities.[156] It further stated that prisoners must have access to information in a format that they can understand—for example, if they have a disability or because their first language is not English.[157] The Government, though, acknowledge that the NOMS audit of the complaints system tested only its overall adequacy, effectiveness, reliability, not whether the system catered adequately for different prisoners but its overall adequacy, effectiveness and reliability.

183. Her Majesty's Chief Inspector of Prisons argued that prisons did not make provision for prisoners with mental health issues and that staff were not properly trained to assist these prisoners. He argued that his inspections had found that prisons do not make reasonable adjustments for groups that have mental health or learning disabilities. He said that prisoners with identified communication problems, mental health problems and learning difficulties should be able to obtain legal advice for making complaints. He said that his view accorded with the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems.[158]

184. The Prison Reform Trust claim that 72% of male and 70% of female sentenced prisoners suffer from two or more mental health disorders. 20% of prisoners have four of the five major mental health disorders. 10% of men and 30% of women have had a previous psychiatric admission before they come into prison. Neurotic and personality disorders are particularly prevalent - 40% of male and 63% of female sentenced prisoners have a neurotic disorder, over three times the level in the general population. 62% of male and 57% of female sentenced prisoners have a personality disorder.[159] As we noted above the LAA indicated to the Government that 11 treatment cases have received approval for funding since July 2010,[160] of which most involve prisoners with mental health issues or learning disabilities.[161]

185. He was supported in his comments by the Mission and Public Affairs Division, Archbishop's Council, Church of England, which disagreed with the Government's reliance on PSI 02/2012. It acknowledged that the instruction makes certain appropriate provisions, such as allowing foreign national prisoners to write a complaint in their own language. But, it outlined these concerns:

· that written complaints should not be seen by any member of staff who may be directly involved with the prisoner (the suggestion that those who cannot write their complaint should speak to a member of staff contradicts this principle);

· that prisoners unable to write their own complaint should seek help from peers (in some cases this may be apt, but this group of prisoners is more likely than others to be vulnerable to influence or intimidation from other prisoners, so that reliance on those peers to write down their complaints is not appropriate); and

· that the PSI lays down a special process for 'confidential access' complaints (likely to concern the most sensitive matters) while there is no provision for those with specific needs in this case—the whole system presupposes ability to write on one's own behalf.[162]

Nick Hardwick CBE, Her Majesty's Chief Inspector of Prisons, gave us the following case study—
When we inspected Bronzefield women's prison, we identified a woman in the segregation unit there—a restricted status woman—who had been there for five years. In our report of that inspection, I described her treatment as "cruel and degrading", and I used those words advisedly. She was undoubtedly a woman who did not have the capacity to make a complaint about her treatment herself. The HM Prison Service would say that they were concerned about her treatment and perhaps did not necessarily agree with our concerns. It seems to me the problem is that if a woman in that very unusual but extreme situation is unable to get legal aid, what is her remedy? She absolutely could not deal with that situation herself; she would need someone to support her.[163]

186. Witnesses argued that the lack of legal aid for prisoners with specific communication vulnerabilities in the complaints system meant that certain prisoners would slip through gaps. Witnesses also highlighted the fact that whilst Governors are able to use the Tarrant Test,[164] in reality very few do.[165]One of the criteria under the Tarrant test, which allows Governors to accept a request for legal representation, is 'the prisoner being unable to present their own case'.

187. The Lord Chancellor acknowledged concerns about prisoners who are unable to articulate their problems as a "valid point", but went on to argue that he did not feel that this necessarily meant that legal advice was necessary, as these prisoners had access to the internal complaints procedure, PPO and the IMB. He told us that he wanted his department to pursue the area of mental health in the criminal justice system, particularly within prisons, where there is "an as yet significantly unaddressed challenge".[166]

188. We welcome the Lord Chancellor's proposal for further work into the issue of mental health and the criminal justice system. We note that the majority of the treatment cases funded since 2010 have been for prisoners who face mental health or other severe difficulties in effectively using the prison complaints systems. We are not satisfied that these prisoners will be able to use effectively the internal prison complaints system. We do not think that, given what appear to be very low numbers of funded cases, the extension of the restriction can be justified if it is to include prisoners with mental health problems or learning difficulties so severe that, even with the help of other prisoners or staff, they are not able adequately to formulate their complaint effectively. We recommend that the LAA retains the ability to grant funding for these cases where the implications for access to justice are clear.

189. We further recommend that the Government formulates and issues specific guidance to Governors as to the application of the Tarrant Test in light of the proposed changes to prison law funding.

MOTHER AND BABY UNITS

190. Mother and Baby Units (MBUs) allow women who give birth in prison to keep their baby with them for the first 18 months, or allow women prisoners with a child under 18 months old to apply to bring their baby to prison. Children over 18 months old are usually cared for externally, and social services may make these arrangements. However, there are generally fewer places available in the MBUs than the number of women with babies, and prisoners must apply for a place.[167] An admissions board decides whether or not to allocate a space, and its principal consideration is what is in the best interests of the child. The decision as to whether to award a place in an MBU can be taken in consultation with a local authority's social services department. If the admissions board awards a place but there are no spaces available at the prisoner's current prison then she may be offered a place at a unit elsewhere. There is an appeal process for mothers who are not awarded a place in a unit.[168] The statutory instrument laid on 4 November 2013 would remove legal aid funding for women seeking legal advice and assistance to appeal a refusal to grant a MBU space. Subject to means and merits (and the residence test), a judicial review case for the decision taken by the admission board could still be funded.

191. In Next Steps the Government acknowledged the concerns raised regarding the exclusion of mother and baby units from legal aid funding,[169] but provided a general, rather than a specific, response to these concerns, namely that the complaints system was robust and decisions could be appealed to the Ombudsman, or, subject to means and merits, be subject to judicial review.[170]

192. The Prisoners Advice Service raised concerns regarding this issue, particularly concerning the urgency of these cases and the inability of the internal complaints system to deal with them:

This is one of the most serious concerns that has been raised. The problems that are engaged cannot properly be resolved by the prison complaints system, because they will often involve decisions by outside agencies such as the social services. They often require very immediate emergency action. For that reason, even if they are able to make some form of internal complaint and it does not resolve it in the way they wish it to, alternative sources of redress such as the Prisons and Probation Ombudsman simply do not have the speed to deal with something where you are talking about a separation taking place overnight.

We are also dealing with people who are in an incredibly vulnerable position. It is often somebody who is about to give birth or has just given birth in a custodial setting and may be told that they are not allowed to remain with their baby because of their behaviour, which may be linked to the whole range of vulnerabilities they have in custody. The concept that these people are in any way capable of presenting their own case is an absolute fiction.

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The Association of Prison Lawyers gave the following example—

B, a foreign national with no previous convictions was sentenced to a year in prison when her son was 9 months old. B was his sole carer, had never left him and was still breastfeeding. On admission to prison, she was immediately separated from him. B could not speak or write English very well, was isolated and had no experience of how the prison system works. B was traumatised by being separated from her baby and on her first few nights in custody she screamed for him. B was placed on report for threatening behaviour and placed in segregation for the night. B was not aware that she could make an application to be transferred to a mother and baby unit (she was unaware of mother and baby units), so that she could be reunited with her baby. Her son was being looked after by an elderly aunt who was finding it difficult to cope with such a young child.

B's lawyers advised that she was entitled to apply for transfer to a mother and baby unit and assisted her with the application, liaising with the prison, the local Council and expert social workers. Despite unequivocal medical evidence warning of the detrimental impact on their well-being that continued separation would have on both her and her baby, her application for a mother and baby unit was rejected on the basis of her record of "poor behaviour in custody". B's lawyers successfully appealed and she was transferred to a mother and baby unit, where she was reunited with her baby. B was reported as being a calming and positive presence within the unit.

193. The Prisoners' Advice Service and other witnesses argued that the current arrangement (of legal advice being available to prisoners in this situation) saved money, as the cost of legal representation is a fixed fee amounting to a few hundred pounds, whereas the cost of keeping a baby in care is significantly higher.

194. The Lord Chancellor told us that very careful consideration had been given to this issue:

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When pressed as to whether, given the potential urgency in these cases, these processes were sufficient, he responded that he was "not really convinced that this should be a legal matter."[173]

195. We note that there are very few cases involving Mother and Baby Units. We also welcome the assurance given to us by the Lord Chancellor that the best interests of the child are taken into account, especially given the importance of such decisions being consistent with the law relating to children. However, we also note that there may be cases before the internal prison complaints system where legal representation would be desirable—such as those which are urgent or which involve third party evidence. In the light of the paramountcy test and the limited number of children involved, we therefore believe that the Lord Chancellor should urgently consider exempting the cases from his proposals.

YOUNG OFFENDERS

196. In Next Steps, the Government states that it did not consider its proposal to be in breach of the UK's obligations under UNCRC.[174] The Government gave specific details of the complaints system in place for each of the three different types of establishment: Secure Children's Homes (SCHs); Secure Training Centres (STCs); and Young Offender Institutions (YOIs).

197. All three establishments must have an internal complaints system. Civil legal aid will remain for judicial review, subject to means and merits. SCHs have individualised complaints systems. Advocacy services are available to children in SCHs (although this is separate from the contract that provides advocacy services to YOIs and STCs). Children in SCHs can appeal to the local authority using their complaints process.

198. STCs' complaints services follow the procedures set out in the Secure Training Centre Rules 1998. Children in STCs can also complain to Monitor (a statutory independent appointee). From the end of September 2013, young people in STCs have been able to take their complaint to the PPO. From 1 July 2013 Barnardos has provided the advocacy services for STCs and YOIs after winning the new contract for these services.

199. YOIs complaints systems are in accordance with the YOI Rules. Young people in YOIs can refer their complaint to the PPO and the IMB. Barnardos provides the advocacy service for these young people.

200. Next steps also said that improving outcomes for young people leaving custody was a key priority under the current Government, and made reference to the Government's consultation, Transforming Youth Custody: Putting education at the heart of detention consultation.[175] This consultation closed in April 2013. At the time of reporting, a consultation response had not been published.

201. Witnesses expressed their anxiety about the Government's decision not to make exceptions to the scope of prison law for offenders under the age of 18. Witnesses were concerned about young people's ability to interact with the system and their fear of repercussions from making a complaint. One of the main concerns of our witnesses was resettlement for young offenders.[176] Resettlement refers to the accommodation and support provided to young offenders leading up to, during and after their release from an establishment.

202. Laura Janes, on behalf of the Howard League for Penal Reform, argued that legal advice and assistance is necessary in this area as it helps to ensure that young people understand what legal rights they have and that they receive the support and services to which they are entitled. She argued that, whilst advocacy services provide a valuable role within the prison system, they provide an entirely different service to that of legal aid lawyers, particularly with regard to resettlement. For example, advocates cannot provide advice as to the legality of local authority decisions, nor provide representation and bring proceedings against local authorities to force them to act in accordance with their obligations.[177] She was supported in her arguments by Her Majesty's Chief Inspector of Prisons.[178] Furthermore, Ms Janes warned of reliance only upon advocacy services:

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203. As outlined for MBUs, the internal prison complaints systems has no remit to investigate the decisions of external agencies nor can they address recommendations to them.

Kevin was 18 and had been a child in care. In prison, he turned his life around and started to engage in education for the first time. But when it came to his release, no plans were in place for his accommodation or support. The local housing authority could not assist as he could not return to his home area due to his offence. In these circumstances the law was clear that he was entitled to help from social services. His prison lawyers wrote to the local authority reminding them of their duties and they agreed to provide a suitable placement so he could be released to a package of accommodation and support

204. The Lord Chancellor responded to these concerns by stating that the Government does not think that resettlement issues need to be a legal matter. He noted that "we have got, and are looking to step up and improve, the quality of support provided to people after detention". He also argued that local authorities and young offending teams work hard to ensure young people have accommodation when they leave an establishment.

205. We recognise the Government's argument that there are numerous options available to young offenders with regards to assistance for resettlement issues, including advocacy services, appeal procedures and the Ombudsman. However, we have heard examples where local authorities have not met their legal obligations in providing the correct accommodation and support during resettlement. We welcome the Lord Chancellor's concern about the need to improve the quality of support provided to people after detention. However, we are disappointed that the Government has pursued the removal of matters relating to young offenders and in particular resettlement cases from the scope of prison law funding. We are surprised it has chosen to do so before it has published the response to its own consultation—Transforming Youth Custody: Putting education at the heart of detention consultation.

206. We do not agree that advocacy services and internal prison complaints systems will be able to deal with these cases effectively. This could leave young people vulnerable and deny them their rights. The issues concerning young people may involve matters of housing law, social care law and public law of such complexity that they require access to legal advice and assistance in order to investigate and formulate their case. The availability of such funding in appropriate cases would be in accordance with the UNCRC.

207. We do not think that the Government can rely upon a right to judicial review where the claimant is a young offender, noting that the young offender would require a litigation friend to pursue such an action, and would need to satisfy judicial review time limits. We recommend that the Government retain young offender cases, and specifically resettlement cases involving young offenders, within the scope of prison law funding.

PAROLE BOARD HEARINGS

208. The Government set out, in Next Steps, the proposal that proceedings before the Parole Board, where the Parole Board is considering whether to direct release, will remain eligible for criminal legal aid funding.

209. The Parole Board outlined the concerns that it had in response to the Government's consultation, namely that it might substantially impact upon the efficiency of hearings and its costs:

If every Cat A lifer was to ask for release at every hearing the cost to the system generally and the Parole Board in particular would rise rather than fall. A skilled and experience lawyer would be able to advise prisoners and take a realistic approach and seek alternative ways to enable the prisoner to progress through their sentence at less cost to the system.

180

210. Other concerns raised with us by our witnesses related to the effect of the proposals on the procedures and practices of the Parole Board. For example, Rule 8 of the Parole Board Rules 2011 allows for a legal representative of a prisoner to have access to sensitive material that cannot be disclosed to the prisoner.[181] If prisoners will not have access to a legal representative, it is not practical for Rule 8 to apply.

211. In relation to victims and witnesses, the Parole Board also explained that prisoners usually withdraw from the hearing, and their legal representative remains, when victims appear to deliver an impact assessment. The Howard League and the Parole Board both suggested that prisoners would themselves be cross examining witnesses. They argued that this was not appropriate for the witness or the prisoner as it may result in prisoners personally questioning professional witnesses as to their assessment of their own risk.

212. The Lord Chancellor explained to us that he believed the number of cases that would be affected would be small. However, for cases that were not to do with direct release, he did not think it should be a legal matter.[182] In relation to practical issues arising under Rule 8, or the attendance of victims, the Lord Chancellor told us:

183

213. We have considered the Lord Chancellor's response to our request for clarification over the practicality of Parole Board hearings without legal representation, in particular where previously lawyers would have remained present instead of the prisoner to hear a victim's impact statement or to be given access to sensitive material pursuant to Rule 8 of the Parole Board Rules. We are not satisfied with the response we have received, which fails to engage with the underlying problems of applying the prison law legal aid restrictions to the existing procedures and practices of the Parole Board. These are concerns raised with us by the Parole Board, and as such, the response that such hearings will continue to be fair, or that a different representative - unidentified in the Ministry's response - could be presented with sensitive material, misses the point. We urge the Government to reconsider the practicality of the prison law changes for these cases, even if they are only small in number.

CATEGORISATION

214. In Next Steps the Government stated that categorisation cases could be dealt with by the internal prison complaints system, with civil legal aid, subject to means and merits, remaining for judicial review. For prisoners in category A, representations by prisoners may be submitted to the Parole Board.

215. Many witnesses expressed concern that categorisation cases were being removed from the scope of prison law funding, and in particular argued that categorisation could have an impact on release date.[184] Witnesses argued that categorisation and sentence calculation are related. Simon Creighton, on behalf of PAS, argued that whilst this aspect of the proposal might not engage Article 5 of the Convention, it did engage common law liberty. For example, whilst a prisoner remains a category A prisoner, they cannot be released on parole licence and this therefore affects the liberty of the prisoner. He further argued that the internal complaints system would not be able to deal with such complaints adequately as it would not be able to challenge independent witnesses.[185]

The Prisoners Advice Service recently represented someone who had made numerous attempts to seek his removal from High Risk Category A status, arguing that prison service information was either wrong or was not based on evidence. He had tried in vain to deal with the errors through the complaints procedure but had simply got the same response which was that they either had no knowledge of the errors or that the prison computer system was accurate. Representations were made by us around factual errors involved with his index offence, security intelligence, consistency in public policy decision making, and the policy guidance contained in the National Security Framework, a document which is neither in prison libraries or available on the intranet and so is out of reach for prisoners. The end result was that the prisoner was downgraded to Category B. This had wider implications than simply for the particular prisoner, given that his disabled mother was able to visit more regularly, he was able to engage with external educational courses and was able to start to address the rest of his sentence plan.

216. Witnesses also suggested that removal of categorisation cases could increase overall costs. PAS said that keeping a prisoner in a more secure establishment than necessary had a huge cost, particularly in extra staffing levels. PAS stated that the annual the cost for a category A prisoner is around £61k, for a Category B prisoner it is around £34k, and for a category C prisoner is around £31k. Dr Nick Armstrong told us:

186

217. The Lord Chancellor said categorisation is one issue that could be dealt with through the internal complaints system and the Ombudsman. He conceded that in some cases flexibility should remain with staff on a case to case basis.[187]

218. Categorisation engages common law rights to liberty, as it can affect the likelihood of a prisoner being released. There are also clear cost implications of a prisoner remaining in too high a category, which may mean that the Lord Chancellor's cost-saving rationale may not be satisfied. We recommend that the Government look again at these proposals, and give full consideration to the potential for increased costs, which may affect the justification for its policy.

123 Legal aid: delivering a more credible and efficient system, paragraph 5.1.1 Back

124 Ibid Back

125 Legal Aid: delivering a more credible and efficient system, paragraph 3.14 Back

126 When a prisoner attends a disciplinary hearing before a governor the prisoner is asked whether they want to obtain legal advice or representation. If the prisoner does not want any legal assistance the hearing proceeds. However, if the prisoner requests legal advice, the adjudicating governor will consider each of the following criteria (resulting from the case of R v Home Secretary ex parte Tarrant) and record their reasons for either refusing or allowing representation of a friend:

· The seriousness of the charge/potential penalty;

· A substantive point of law being in question;

· The prisoner being unable to present their own case;

· Potential procedural difficulties;

· Urgency being required; or

· Reasons of fairness to prisoners and staff.

If the adjudicating governor allows the request they will adjourn the hearing for a reasonable time to allow the prisoner to telephone or write to a solicitor. Back

127 The Woolf Report 1991 into the Strangeways prison riots Back