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

Two charities have won the right to challenge the Lord Chancellor over legal aid cuts for prisoners after the Court of Appeal ruled there was a risk the system could be unlawful.

A challenge by the Howard League for Penal Reform and the Prisoners' Advice Service (PAS) was blocked by the High Court in March 2014 but that decision has since been overturned by Lord Justice Leveson, Lord Justice Tomlinson, and Lady Justice Sharp.

In The Howard League for Penal Reform and Prisoners' Advice Service v The Lord Chancellor, the charities argued there were seven areas of work cut from 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; pregnant prisoners being allocated to mother and baby units; segregation; access to offending behaviour work; and having a suitable home upon 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, cuts for prisoners were absolute. In a detailed decision, the Court of Appeal recognised the risk of systemic unfairness as a result of the legal aid cuts.

Lord Justice Leveson commented: '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] refers.'

The charities say they have been inundated with requests for help from children and prisoners since cuts were introduced in December 2013, which coincided with a deterioration of safety standards in English and Welsh prisons and a rise in suicides. In the year following the cuts, calls to the Howard League's advice line increased by 45 per cent.

Frances Crook, chief executive of the Howard League welcomed the court's decision: '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 PAS, said: '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.'