On 4 April, a matter of days after the cuts to civil legal aid were brought into effect, Chris Grayling has announced the Government’s intention to cut legal aid for prisoners seeking to bring proceedings for judicial review of decisions relating to their treatment or the conditions of their confinement.  He complains that £4 million pounds in legal aid is spent annually on such complaints and says that they can be perfectly adequately dealt with by the internal prison complaints system. His justification for the cuts makes neither financial nor constitutional sense and begs the question, what are his true motives?

• This article is written by the prisoners’ rights team at Doughty Street: Phillippa Kaufmann QC, Edward Fitzgerald QC, Ruth Brander, Caoilfhionn Gallagher, Alison Gerry and Quincy Whittaker
• The painting is from the 2010 Koestler Trust exhibition (The Yard 2030 – Maghaberry Prison, Northern Ireland, Commended for Oil/Acrylic Painting 2007) -see HERE
• You can alread Matt Evans of the Prisoners Advice Service on the proposals HERE

The cases Mr Grayling identifies as ‘unnecessary’ frequently concern decisions which impact directly on prisoners’ mental health and ability to progress through the system – both features are relevant to prospects of rehabilitation – thus having knock-on effects for society as well as the individual prisoner.

Too much room for error
The adequacy of the internal prison complaints system  – which Mr Grayling advances as a sufficient safeguard – has to be seen in the context of a prison population where 20-30% of all offenders have learning disabilities or difficulties that interfere with their ability to cope with the criminal justice system (No one knows: Offenders with learning difficulties and learning disabilities, Loucks N (2007)).

Many are simply unable to pursue a complaint without assistance. Prison governors who consider complaints are not lawyers let alone judges. They are not independent of the institutions within which they work. There is far too much room for error. The Prison and Probation ombudsman, who has oversight of the complaints system, does have independence but he is not a lawyer. It is not his job to ensure that the operation of prisons and the regulation of prisoners within them are conducted in accordance with the rule of law. That is the role of the courts.

Mr Grayling’s proposals are based on a misunderstanding, or misrepresentation, of the current position. Prisoners cannot currently simply choose to litigate rather than pursue an internal complaint.

Judicial review has always been a remedy of last resort and prisoners must already demonstrate that they have exhausted alternative remedies such as the internal complaints procedure and complaint to the ombudsman, where these are meaningful alternatives, before they seek the intervention of the court.

The very fact that legal challenges continue to succeed demonstrates the inadequacy of these mechanisms. Mr Grayling’s proposals do not advance a viable alternative, but rather remove the essential safeguard of access to the courts where the internal complaints system is inadequate.

The world of the prison is understandably mainly hidden from public view so a degree of insight into how the system works and the nature of the complaints processes that exist is necessary before the impact of the proposed cuts can be understood.  Fundamental to the successful operation of any prison is that security, order and discipline are maintained.  This imperative dictates every aspect of the prison regime and governs the way in which prisoners live their lives in prison.

The life of the prisoner is completely regulated. Prisoners are assessed according to the level of security that is considered necessary to detain them safely and prevent their escape. They are then sent to a prison suitable for prisoners of that security category. The regimes vary according to the level of security required, becoming progressively less intrusive the lower the security levels. Within the prison, discipline and good order are kept in a variety of ways.  There is a formal disciplinary system whereby prisoners are tried and punished for the commission of prison disciplinary offences. And there is the informal system whereby governors can decide to remove prisoners from association with other prisoners into segregation units. When detained in such units prisoners lead an impoverished life, locked in their cells at least 23 hours a day, deprived of the company of other inmates with no meaningful activity to engage them. There is no time limit on how long they can be held there.

Categorization
Decisions taken about security categorisation or segregation have profound effects on prisoners. Categorisation decisions are particularly significant for indeterminate sentence prisoners, that is those who are detained indefinitely such as life sentence prisoners or those detained for public protection. Over the last two decades the number of such prisoners has increased enormously. These prisoners are not released when they have served their due punishment. Once that period has passed they will remain in prison until they have satisfied the Parole Board that the risk of committing a serious offence in the future is minimal.  Predicting future behaviour is no easy task and the Parole Board takes a cautious approach.  As long as such a prisoner remains in secure conditions the Board will be very unlikely to release.

So an unfavourable decision about categorisation can add years to the period a prisoner will be detained even though the punitive part of the sentence – that attributable to proportionate punishment – has expired.

Segregation
Segregation decisions have an even more immediate impact. The conditions in the segregation regime are extremely challenging and can have profoundly deleterious psychological effects. Such decisions are often based on information provided by other prisoners which may be entirely fabricated, or otherwise inaccurate. Ensuring that these difficult decisions are taken fairly is clearly of the utmost importance. In both these areas our courts have, as a result of cases brought with the support of legal aid, required very considerable improvements to be made in the decision making procedures to ensure fairness to the prisoners affected. First the courts stated that reasons needed to be given in both types of decision and an opportunity to make representations. In relation to categorisation decisions the courts have gone further and held that in some cases the prisoner must be afforded an oral hearing before a decision is taken.

These are just two examples of how treatment decisions can have the most profound effects on the lives of prisoners and how the courts have stepped in to ensure that the decision making processes respect the rule of law.

There are many, many others.

Wrongly convicted life sentence prisoners have had to fight in court for the right to see a journalist who wanted to help them gather evidence to overturn their convictions. It is only through a successful challenge in the courts that prison officers have been stopped from looking through legally privileged correspondence without the prisoner to whom it belonged being present. In the women’s prison estate the courts have stepped in to ensure that decisions taken as to whether a pregnant mother may keep her baby with her when it is born are taken with proper regard to the best interests of the baby.

Our courts have long held that prisoners do not lose their civil rights by reason of their imprisonment unless this is expressly provided for in legislation or is a necessary consequence of their confinement. The competing impetus to ensure security, good order and discipline can unintentionally lead to unlawful infringements of those rights.

On top of this the closed world of the prison is a dangerous place not just because it may house dangerous offenders, but also because the secret nature of the establishment creates great opportunities for abuse. 

For all of these reasons, we, as prison law experts, believe that the complaints system cannot do the job alone and that the possibility of scrutiny by the courts is an essential safeguard.  The question then is can prisoners properly bring cases to court without the assistance of lawyers? This is quite simply impossible given the problems that face many prisoners; low levels of education and literacy or other difficulties such as high levels of mental illness. The average prisoner cannot begin to get to grips with the myriad laws, rules and policies which regulate their every move in order to assess whether their rights are being unlawfully infringed or the actions taken in relation to them are unlawful for some other reason.   Without legal aid and the assistance of expert lawyers many will simply give up at the first hurdle. Others may pursue their cases, but take up a far greater portion of the court’s resources because of the additional time and assistance that litigants in person require.

When proposing cuts to legal aid which were given effect on 1 April in the Legal Aid Sentencing and Punishment of Offenders Act 2012 the Government did not include judicial review precisely because it recognised the overriding public interest in ensuring that public authorities act lawfully in their decision making. Why should prisoners be any less entitled to ensure that those who take decisions in relation to them should act lawfully? Of course prisoners can and do make wholly unmeritorious complaints, no doubt more so than the rest of the population.

Perhaps this is an inevitable consequence of the highly regulated nature of prisoners’ lives coupled with the unusual makeup of its population; it has a higher proportion of people suffering from personality disorder than the normal population.

Whatever the reason, at the moment lawyers provide an important filter, quickly stopping such claims in their tracks before they get to court. Without such a sifting process, some prisoners will take cases forward on their own thereby requiring more judges to sift the cases and further adding to the backlog which is already leading to wholly unacceptable delays in the Administrative Court. And this would not be the only additional cost. In all those cases which go to a hearing prisoners will have a right to put their case to the court at an oral hearing.

Small price to pay
So costs will be incurred in escorting them to and from court and in ensuring they do not escape at the hearing. Currently no such costs are incurred as prisoners do not attend their hearings, their interests being sufficiently represented by their lawyers. Finally there will be a significant cost to the court as hearings will be drawn out because of the lack of expertise of the prisoner.

The legal status of prisoners in this country is a mark of its civilisation and humanity. There has unquestionably been a proliferation of cases brought on behalf of prisoners in the last two decades but they have done much to improve decision-making within the prison estate and to safeguard those rights of prisoners which have not been taken away by reason of their imprisonment. 

An annual cost of £4 million to ensure that the coercive powers of the state are exercised lawfully in our penal institutions is not an excessive cost to safeguard this touchstone of a civilised society. £4 million is a minuscule proportion of the overall legal aid budget which is £1.7bn. This must be offset against the knock on costs if prisoners act as litigants in person both to the courts and the MOJ in escort costs.

The benefits of the current system are constitutional, ensuring that every arm of the state, but especially its coercive machinery, remains accountable to the law. A further benefit lies in what it says about us as a society, one which continues to act honourably even to those who have transgressed its norms recognising that apart from the punishment they have been ordered to undergo by the courts they remain citizens with the right to be treated in accordance with the law and to hold the state to account just like anyone else.

 So what are we to make of Mr Grayling’s proposal? It is yet a further demonstration that he and his government have no respect for the rule of law, that they are happy to trade such a fundamental democratic principle for what is nothing more than a small amount of political capital.

It is no doubt to detract attention from the Government’s devastating cuts to legal aid which have left many of the most vulnerable in society without access to justice that Chris Grayling has focused his attention on this unpopular group. He has bargained that such a populist move, because its true implications will not be well understood by most of the public, will garner some support for his increasingly beleaguered government.

There will be a consultation period, as meaningless as all that have gone before, at the end of which the cuts will no doubt be implemented. When they are there will be no better example of this Government’s utter disregard for access to justice and the rule of law.