Still waiting for guidance from MoJ and Parole Board
The fourth Lord Chancellor in four years, David Lidington, has withdrawn an appeal to the Supreme Court against the Court of Appeal’s ruling that several cuts to legal aid for prisoners were unlawful. It has taken over six months for this decision to be made.
A Statutory Instrument is now being drafted to reinstate legal aid for:
1. Pre-tariff expiry reviews before the Parole Board;
2. Category A reviews;
3. Close Supervision Centre reviews.
It is likely to take up to three months before the legal aid cuts will be reversed. This means that prisoners who need legal help with these cases from February 2018 should be entitled to legal aid if they qualify financially.
The situation is a lot less clear for people who need help before legal aid is restored. There are reviews which will be happening within the next three months.
At the time of writing, neither the Ministry of Justice nor the Parole Board have issued any guidance or advice.
The Court of Appeal decided that the failure to provide legal aid created systemic unfairness.
If a system is unfair in February 2018, it is unfair in December 2017 and January 2018.
Both the MoJ and the Parole Board have a responsibility to be pro-active and provide answers.
The MoJ has let this unfair situation drift for far too long. They have spent a significant amount of money in legal costs defending the indefensible.
The Parole Board provided evidence in the case brought by the Howard League and Prisoners Advice Service. They explained the importance of pre-tariff reviews for prisoners serving indeterminate sentences. They acknowledged the problems that can arise in these cases if prisoners are unrepresented.
The scale of this problem has been masked by the willingness of some agencies to provide free representation. Some prisoners will have borrowed money or called on family members to pay for legal representation.
Representation by good lawyers helps both prisoners and the Parole Board – even if it might make their job a little harder sometimes. It means the Parole Board can be more satisfied that they are providing fair hearings. They can rely on good lawyers to provide advice to their clients which Parole Board members might otherwise have to provide. They can rely on the communication chains which are not available to prisoners.
Similar considerations apply to Category A and CSC reviews.
They are important and often complex reviews. They bear a lot of similarities to parole reviews. They rely on dossiers of evidence, some of which will involve disputed psychological evidence or contested facts.
Opinion evidence can and should be challenged in appropriate cases. Prisoners might want to gather their own evidence. Unrepresented prisoners are disadvantaged in many ways. Some of these prisoners will have learning difficulties, suffer from mental illness or be vulnerable in some other way.
The Court of Appeal judgment does not deal with the new separation centres because they were created after those proceedings. They will involve similar decision-making as category A and CSC reviews. It is hard to see why they should not be subject to the same kind of safeguards.
What should people do if they need help with one of these cases now?
It is possible that more information will be provided in the coming weeks, particularly if the MoJ, the Legal Aid Agency and the Parole Board accept that they have a responsibility to provide it.
They could engage with prisoners who are affected as well as their lawyers. Prisoners can seek legal advice in the interim period even if legal aid is not yet available for their cases.
Prisoners should be able to make informed choices about what to do with their cases. They may wish to carry on with their reviews. They may decide they want to postpone them.
Prisoners who have had reviews in recent months without legal advice or representation might argue that they have been unfairly disadvantaged.
Providing reliable information and guidance is an essential part of a fair system. It will be a great shame if officials decide that doing nothing and hoping the problem will resolve itself is the best response.
Andrew Sperling