Criminal legal aid is now only available for four narrow areas of prison law work:

• Parole Board reviews where the Parole Board has the power to direct release;
• sentence calculation cases;
• disciplinary hearings before an independent adjudicator; and
• disciplinary hearings in front of a prison governor if the governor has authorised legal representation pursuant to the Tarrant criteria.

This change to the legal aid scheme has been rushed through by statutory instrument ? before most of the other changes to criminal legal aid. There has been no vote in parliament and the Lord Chancellor has chosen not to wait for the joint committee on human rights (JCHR) to publish its report on the issue.

On Monday 2 December 2013, the standard criminal contract was amended to make major changes to the scope of funding available for prison law matters.

Prisoners no longer represented

Aside from the parole and disciplinary issues that remain within scope, prisoners have typically sought legal advice and assistance on how to progress through their sentence, to attend courses designed to make them less dangerous and to access resettlement in the community. These are all known to be factors that reduce reoffending rates substantially but they now all fall outside the scope of the criminal contract.

And a whole range of other problems are also outside the scope of the prison contract. Women who have babies in prison can no longer get legal aid to help them apply to enter a mother and baby unit and children in custody will get no help when they are placed in solitary confinement, despite the clear links between this treatment and self harm and suicide.

Category A prisoners cannot obtain legal aid to assist them in their annual reviews and so it will be impossible for prisoners to obtain independent expert reports to address concerns with prison service assessments. Such reports are often essential to identify errors or illegality in prison service decisions. There is also no exemption or safety net for prisoners with particular vulnerabilities as exceptional funding does not apply to criminal matters.

It is also important to be aware that any matter which is now outside the criminal contract will also be outside the scope of associated Community Legal Service (CLS) work through legal help. This class of associated CLS work was available to anyone holding  a prison law (or criminal) contract and permitted advice to be given in relation to judicial review proceedings. Now, for those matters that fall outside the prison law contract, legal help is only available for those firms that hold a public law contract. Public law contracts are subject to strict matter start allocations (usually around 15 per firm in London) meaning that only a small number of cases can be taken on.

Therefore, while civil legal aid is still technically available for judicial review of prison law decisions, in practice it will not provide any safety net.

Costs transferred

The proposals were originally said to be necessary to control the legal aid budget in this area and also to promote public confidence. The evidence that was submitted to the MoJ made a powerful case that they would actually increase costs by simply shifting them elsewhere. For example, without access to resettlement and sentencing planning advice, prisoners will spend longer in prison and in conditions of higher security.

Complaints will be shifted onto the Prisons Ombudsman.  The fixed fee for such work is £220 whereas the Ombudsman?s average case cost is closer to £1,000. When this evidence was put to the Lord Chancellor by Jeremy Corbyn at the JCHR, Mr Grayling?s response was that the change is actually ideological: "I do not believe that they [prisoners] should be able to take those complaints to court?.

Consequences

The former Court of Appeal judge, Sir Stephen Sedley, has written about the profound consequences for the rule of law that result from the denial of access to justice. Focusing on prisons, he said: "Prison law [is] an area of legal practice which since 1980 has let much needed daylight into a system which until then stood largely outside the law. Here, the paper, seemingly unaware of the way prisoners? claims are already handled, proposes to take away access to justice for prisoners.?

His comments identify a core concern that closed institutions have been proved to be incapable of self- regulation or maintaining the faith of those that are incarcerated. These dangers are not illusory. In December 2003, The Guardian first reported on the perpetration of abuse in Wormwood Scrubs prison, recording that "prison officers subjected inmates to sustained beatings, mock executions, death threats, choking and torrents of racist abuse?. More often, the concerns may arise from inadvertent rather than deliberate mistreatment, such as the woman that prison inspectors recently discovered had spent several years in solitary confinement because prison staff could not manage her mental health problems and self harming.

The removal of legitimacy is also raising concerns about the safe management of prisons. It is important to remember that the current system of checks and balances largely came about because of the concerns expressed in the Woolf Report following the riots at Strangeways in 1990. The report recognised the central role that the fair resolution of complaints has  in securing good order in prisons and also in the rehabilitation of prisoners by allowing them to engage with the system.

Dark ages

The fair treatment of prisoners is not a fringe concern. Figures as diverse as Winston Churchill and Nelson Mandela have famously written about the link  between the treatment of prisoners and the standards of civilisation and democracy. Indeed, the highest standards of fairness and the stringent gaze of the rule of law are necessary components of any serious attempt to address criminal behaviour.

Without the provision of legal aid, prisoners have  no opportunity to access the law. They have no income, limited opportunities to contact lawyers and no informal sources of advice through law centres or the CAB. Writing in the European Human Rights Law Review, two prominent human rights barristers, Tim Owen QC and Phillippa Kaufmann QC, have warned that, "once again, we will be entering the dark ages in which prisons exist as a separate universe, their officials free to apply their uniquely coercive measures unrestrained by the rule of law and the dictates of justice.?

Simon Creighton, Bhatt Murphy Solicitors
Association of Prison Lawyers