![]() |
[Home] [Databases] [World Law] [Multidatabase Search] [Help] [Feedback] [DONATE] | |||||||||
England and Wales High Court (Administrative Court) Decisions |
||||||||||
PLEASE SUPPORT BAILII & FREE ACCESS TO LAW
To maintain its current level of service, BAILII urgently needs the support of its users.
Since you use the site, please consider making a donation to celebrate BAILII's 25 years of providing free access to law. No contribution is too small. If every visitor this month gives just £5, it will have a significant impact on BAILII's ability to continue providing this vital service.
Thank you for your support! | ||||||||||
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> The Howard League for Penal Reform & Anor, R (On the Application Of) v The Lord Chancellor [2014] EWHC 709 (Admin) (17 March 2014) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2014/709.html Cite as: [2014] EWHC 709 (Admin) |
[New search] [View without highlighting] [Printable RTF version] [Help]
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Strand, London, WC2A 2LL |
||
B e f o r e :
MR JUSTICE CRANSTON
____________________
The Queen on the application of The Howard League for Penal Reform -and- Prisoners' Advice Service |
Claimants |
|
- and - |
||
The Lord Chancellor |
Defendant |
____________________
James Eadie QC and Richard O'Brien (instructed by Treasury Solicitor) for the Defendant
Hearing date: 6 March 2014
____________________
Crown Copyright ©
Mr Justice Cranston:
Introduction
Background
(a) The April 2013 consultation
"3.14 We propose to restrict the scope of advice and assistance, including advocacy assistance, to criminal legal aid for prison law cases that:
- involve a determination of a criminal charge for the purposes of article 6 European Convention on Human Rights (ECHR – Right to a fair trial);
- engage article 5.4 ECHR (right to have ongoing detention reviewed); and
- require legal representation as a result of successful application of the "Tarrant" criteria."
The last bullet point was a reference to the criteria set out in R v Secretary of State for the Home Department ex p Tarrant [1985] QB 251 as to when a prisoner should be legally represented on a disciplinary offence. The following paragraph explained that the Government believed that the cases in paragraph 3.14 alone were of sufficient priority to justify the use of public money and that the internal prisoner complaint system, prisoner discipline procedures and the probation complaints procedures should be the first port of call for other issues. Criminal legal aid would remain available for prisoners, for example, where liberty was at stake: para 3.15.
"3.20 Criminal legal aid advice and assistance would remain available for Parole Board review matters as these cases concern decisions about ongoing detention."
At the end of this section the document posed this consultation question: Do you agree with the proposal that criminal legal aid for prison law matters should be restricted to the proposed criteria?
"I suspect, Mr Corbyn, that this is an area where there is an ideological difference between us. I am absolutely of the view that somebody in prison should have the right to legal aid when it is a matter relating to their sentence and the length of time that they will spend in prison. When it is a matter relating to the conditions in the prison, or the choice of prison in which they are detained, we have a prison complaints system and a prisons ombudsman. To my mind, that is the route that we should follow. I do not believe that prisoners in jail should have the right to access legal aid to debate which prison they are put in."
Later he added that the taxpayer should not be funding legal aid for prisoners to litigate which prison they have been detained in or what the conditions were in their cell.
(b) "Next steps" and the Regulations
"2.5 The proposals on amending the scope of criminal legal aid for prison law are intended to focus public resources on cases that are of sufficient priority to justify the use of public money. Alternative means of redress such as the prisoner complaints system should be the first port of call for issues removed from the scope of legal aid. In line with these principles we intend to proceed with the original proposals, subject to a number of adjustments. We intend to retain funding for proceedings before the Parole Board where the Parole Board has the power to direct release, as opposed to all cases that engage Article 5.4 ECHR. We also intend retaining sentence calculation matters within scope where disputed, as both these matters have a direct and immediate impact on the date of release."
"21 Categorisation matters should be resolved where possible using the prisoner complaints system or representations by prisoners for those in category A. As noted above, civil legal aid and judicial review may also be available … Any disagreement with the licence conditions set should be discussed between the offender and their offender manager, with relevant probation complaint system being used if no resolution can be reached. We consider these processes are sufficient to ensure that offenders' grievances will be properly considered and their rehabilitation will not be compromised."
(c) The Joint Committee's report
"Amending the scope of criminal legal aid for prison law is not inherently incompatible with the right of access to court. Rather, the human rights question 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. Our report considers 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."
The Joint Committee welcomed in principle the Government's indication that civil legal aid would continue to be available to bring judicial review in relation to prison law matters. That would preserve the possibility of access to court, although the Committee was concerned about future funding for judicial review: para 168. It also welcomed the commitment from the Lord Chancellor to put the Prisoner and Probation Ombudsman on a statutory footing: para 177. It did not consider that there was a problem with the internal prisoner complaints system but improvements could be made: para 180. In some cases only the retention of legal aid would prevent infringement of prisoners' rights of access to the court: para 181.
"A Parole Board hearing is invariably inquisitorial and the Government does not accept that it requires a legal representative to ensure fairness for the prisoner. It is the Parole Board that leads the process, and its highly skilled members, with expertise in risk assessment, are adept at eliciting and assessing the information relevant to the matter under consideration."
The Government was confident that the Parole Board would continue to ensure that its procedures were fair and would be able to deal with sensitive information where a prisoner did not have legal representation. While the Government acknowledged that categorisation might be an important element of a prisoner's risk assessment by the Parole Board, it did not consider that it was necessarily or directly determinative of release, even for category A prisoners. There were alternative means of redress such as the prisoner complaints system.
(d) The House of Lords debate
Statutory framework and policy
"12.— Prescribed conditions
(1) The conditions set out in paragraph (2) are prescribed for the purposes of section 15(1) of the Act.
(2) The conditions are that an individual must—
..
(d) require advice and assistance regarding a sentence;
…
(f) require advice and assistance regarding the individual's treatment or discipline in a prison, young offender institution or secure training centre (other than in respect of actual or contemplated proceedings regarding personal injury, death or damage to property);
(g) be the subject of proceedings before the Parole Board;
(h) require advice and assistance regarding representation in relation to a mandatory life sentence or other parole review…"
"12.— Prescribed conditions
(1) The conditions set out in paragraph (2) are prescribed for the purposes of section 15(1) of the Act.
(2) The conditions are that an individual must—
…
(d) require advice and assistance regarding—
(i) the application of the provisions in Chapter 6 of Part 12 of the Criminal Justice Act 2003 or in Chapter 2 of Part 2 of the Crime (Sentences) Act 1997, which determine when a prisoner is either entitled to be released by the Secretary of State or eligible for consideration by the Parole Board 2 for a direction to be released; or
(ii) the application of the provisions in Chapter 2 of Part 5 of the Powers of Criminal Courts (Sentencing) Act 2000, which determine when an offender is entitled to be released by the Secretary of State…
(f) require advice and assistance regarding a disciplinary hearing in a prison or young offender institution where—
(i) the proceedings involve the determination of a criminal charge for the purposes of Article 6(1) of the European Convention on Human Rights; or
(ii) the governor has exercised the governor's discretion to allow advice and assistance in relation to the hearing;
(g) be the subject of proceedings before the Parole Board where the Parole Board has the power to direct that individual's release…"
Paragraph 12(2)(h) was omitted and a definition of "governor" added in paragraph 12(3). Regulation 7 provides that the amendments made by regulation 4 do not apply to cases in which an application for advice and assistance was made prior to 2nd December 2013.
Failure to consult
Substantive grounds
(a) Risk of unfairness
"[7]…The other, of which this case is put forward as an example, is appropriate relief, following judicial intervention to obviate in advance a proven risk of injustice which goes beyond aberrant interviews or decisions and inheres in the system itself. In other words it will not necessarily be an answer, where a system is inherently unfair, that judicial review can be sought to correct its effects.
[8] The choice of an acceptable system is in the first instance a matter for the executive, and in making its choice it is entitled to take into account the perceived political and other imperatives for a speedy turn-round of asylum applications. But it is not entitled to sacrifice fairness on the altar of speed and convenience, much less of expediency; and whether it has done so is a question of law for the courts. Without reproducing the valuable discussion of the development of this branch of the law in Craig, Administrative Law, 5th ed (2003), ch 13, we adopt Professor Craig's summary of the three factors which the court will weigh: the individual interest at issue, the benefits to be derived from added procedural safeguards, and the costs to the administration of compliance. But it is necessary to recognise that these are not factors of equal weight. As Bingham LJ said in Secretary of State for the Home Department v Thirukumar [1989] Imm AR 402 , 414, asylum decisions are of such moment that only the highest standards of fairness will suffice; and as Lord Woolf CJ stressed in R v Secretary of State for the Home Department, Ex p Fayed [1998] 1 WLR 763 , 777, administrative convenience cannot justify unfairness. In other words, there has to be in asylum procedures, as in many other procedures, an irreducible minimum of due process."
(Chapter 13 of Professor Craig's book to which Sedley LJ referred in paragraph 8 was entitled "Natural Justice: Hearings"). Sedley LJ went on to hold that the fast track system did ensure an applicant fairness provided it operated so that there was a recognition of the circumstances where an enlargement of the prescribed period would be needed.
(b) Access to justice
(c) Discrimination
(d) Irrationality
(e) Ultra vires
Conclusion