Legal Aid Reforms

A Change in The Legal Aid Rules: Consequences for Prisoners by J Bamber.

What is Legal Aid?

Legal aid is a payment from public funds, given to people who cannot afford to pay for legal advice themselves, and this has underpinned the UK’s criminal justice system for more than half a century. [1]

Article 6 of the European Court of Human Rights[2] entitles each person facing criminal charges the right to a fair trial. There must be equality of arms between state and the defence, which includes full disclosure of all relevant information[3] and proper legal representation for the defendant. If the accused cannot afford to pay for legal representation then the state should have a statutory obligation to provide the necessary funding for this assistance.[4]

Why do Prisoners need Legal Aid?

A convicted prisoner has a requirement for legal help which does not stop when they are living in prison. There could be any number of situations where the intervention of courts or judges may be required. For instance, the abuse of process within prison is kept to a minimum because prisoners have always been able to seek the protection of the law through legal representation funded by Legal Aid. This might be something fairly minor, such as a prison not providing those in their custody with food for 24 hours, but could range to something major, such as withholding someone’s mail indefinitely when contact with the outside, in particular relatives, is key to the rehabilitation[5] and wellbeing of prison communities. Other issues could be withholding medicines or obstructing access to general or specialized healthcare.

This could make prison environments more dangerous places than they currently are, particularly difficult or volatile prisoners on extremely long sentences with grievances in a pressurised environment, might act violently towards others and feel that there is no alternative but to hit out because they do not have other options with access to lawyers to make claims through the proper channels. The public at large may not care about the prison population generally, but the people working in prisons are at risk, this includes officers, teachers, psychologists and other members of administrative or contracted staff who are public servants and who are already facing the dangers of prison life whilst carrying out their duties. Society also relies on rehabilitation of prisoners for the long term benefits of society.

In 2000 the Legal Aid Board was replaced by the Legal Services Commission (L.S.C.), which was a non-departmental public body, or government Quango. Under the L.S.C access to legal representation has gradually been stripped away from convicted prisoners, by the reduction of access to Legal Aid in order to obtain professional advice about situations which occur within the prison. Prisoners need access to Legal Aid in order to obtain the necessary protection against the state getting it wrong or becoming oppressive, as well as straight forward matters such as parole and security re-categorisation.

By 2010 this blanket protection of prisoner’s rights afforded by the L.S.C was removed further, so that Legal Assistance would only be available to determinant[6] sentenced prisoners if the legal issue would impact upon the time they would spend in prison. For indeterminate sentenced prisoners (“lifers”) Legal Aid would only be made available if the issue requiring Legal Aid would affect their parole outcome. For example someone on a whole life sentence such as myself is excluded from receiving Legal Aid for security categorisation as this does not relate to the length of my sentence.

An unintended consequence of this action by the former L.S.C's decision was that prisoners no longer have a legally funded way of ensuring that Prisons in England and Wales abide by either Prison Service Orders (P.S.O’s),[7] or Prison Service Instructions (P.S.I’s).[8] These are the statutory rights afforded to each prisoner whilst imprisoned by the state, and the withdrawal of Legal Aid made PSI’s and PSO’s no longer legally enforceable for prisoners who have no access to private funds. Prisoner’s statutory rights are governed by human rights but are only enforceable if legal expertise is available. In the absence of Legal Aid being available to prisoners, the only alternative is private funding for things unrelated to parole hearings or the length of an individual's imprisonment.

Legal Aid and Whole Life Orders.

There are a group of lifers who have been given whole life terms of imprisonment and these forty or so prisoners, of which I am one, will never be eligible for parole hearings. Therefore these prisoners are now excluded from ever obtaining Legal Aid funding, because they will never be eligible for parole and nothing could impact upon the length of their sentences, consequentially these prisoners are excluded from ever obtaining Legal Aid funding for any issue. This problem relating to those with Whole Life Sentences, appears to have been completely overlooked by the former L.S.C. Whereas all other prisoners can petition Home office ministers for a prerogative of pardon, and receive publicly funded legal help to do so, whole life term prisoners are expressly forbidden from undertaking such a petition.[9]

Whole Life Sentence prisoners are already excluded from Legal Aid for appeals against their sentence, and are very much at the mercy of charitable organizations, hand-outs from friends or relatives; and the altruistic work of pro-bono lawyers and barristers which is becoming more difficult to obtain particularly in the current economic climate.

Political Opposition to Legal Aid and Access to Media for Prisoners.

MP for Witham Priti Patel, promotes making access to justice more difficult for anyone. Comments made recently attack judgments made by the European Court which, “undermine the sovereignty of our parliament,” and further,“this should also include preventing prisoners from using Legal Aid to fund their cases.” [10] Ms Patel is intent on speaking publicly about me having access to media and legal representation, but she has overlooked the fact that lawyers working on a pro-bono basis brought my case in the ECHR Grand Chamber. I was not and currently cannot be Legally Aided in any way. The Ministry of Justice has also further blocked my application for a filmed prison interview, as there is no Legal Aid available to me to fight this decision, and without private funding for this, I cannot appeal further than the ministerial desk of Chris Grayling, Minister for Justice. Again, politics defines the rights of those maintaining their innocence, and not the judiciary.

Indulgent television programmes on people who have admitted murder, have been aired in the past 18 months where prisoners have been filmed in their cells discussing the appalling crimes they have committed. This must be stopped. In my view only prisoners who maintain innocence who require public exposure to raise awareness of their cause, should have access to media. In all the discussions about consideration for victims, why are they not considered when murderers are broadcast for the most gratuitous and unethical purposes?

In my previous article on Whole Life Tariff Orders,[11] I discussed the abolition of the Death Penalty in the 1960’s, and this was partly because innocent people were hanged. This progressive move was reversed with the Home Secretary, Douglass Hurd, upgrading sentences to Whole Life Orders retrospectively and in secret without advising the prisoner that they would die in prison.[12] Whole life Orders are set to grow aggressively over the coming years with the knee jerk reactions of politicians eager for votes, after facing unpopularity on an unprecedented scale from the recent scandal of MP’s expenses, the inadequacy of the Police, and their watchdog the IPCC.[13]

With needless media fury over what is seen as abuse of the Legal Aid system by high profile prisoners and immigrants claiming political asylum, the governmental lens has focused on alterations to the system to prevent abuse and to tighten the state purse strings, inadvertently but beneficially to any corrupt behaviour of public servants, the state has removed all safeguards from any innocent prisoners who face the 21st century British ‘Death Sentence.’ Furthermore on 1st April 2013 the L.S.C was abolished and replaced by the ‘Legal Aid Agency’, an executive agency that has considerably tighter ministerial control over Legal Aid funds.

Given these circumstances, Whole Life Tariff prisoners could legitimately have applied for a Judicial Review of the L.S.C’s decision to exclude these individuals from ever receiving Legal Aid. Unfortunately to undertake such legal action requires assistance from a Legally Aided lawyer, or private funding, and applications for Legal Aid would be refused on the grounds that such action could have no impact upon the applicant's parole hearings, as Whole Life Tariff prisoners are never entitled to apply for parole. Moreover, media articles claiming that I have been legally aided for parole hearings are simply lies.

The unintended consequence of the changes in the Legal Aid rules has given all penal institutions carte blanche to ignore all regulatory safeguards if they should wish to do so, without fear of legal recourse from prisoners in their charge, who cannot fund a lawyer privately, and realistically not many long term prisoners have access to private funds as many are without family or earning potential. The government has 6 months to implement reviews into Whole Life Orders. This does not mean that people like me will be released under this system. I would be due for a review of my sentence as I have served over the tariff set by my trial judge and the Lord Chief Justice in 1986. For the purposes of this paper, the review might just entitle me to access to Legal Aid, giving me equality with other prisoners who can make claim for issues which affect the length of their sentence.

References.

[1] Legal Aid Advice Act 1949, Legal Aid Board founded.

[2] Article 6 of the European Human Rights Act http://www.legislation.gov.uk/ukpga/1998/42/section/6 [Accessed: 20.06.13]

[3] Disclosure of relevant information in criminal cases http://www.insidetime.org/articleview.asp?a=97 [Accessed: 20.06.13]

[4] http://www.legislation.gov.uk/ukpga/2012/10/part/1/crossheading/criminal-legal-aid/enacted The New Crime and sentencing bill 2013 maintained Legal cases, but severely restricted in in many other areas.http://www.guardian.co.uk/society/2013/apr/23/legal-aid-prisoners-cut. Brandenberg, E. ‘The Lawyers’ Lobby and the Welfare State: The Political Economy of Legal Aid.’ In The Transformation of Legal Aid: Comparative and Historical Studies. (1999). (Regan, F trans). Oxford, OUP. Pp. 114-115.

[5] According to Home office research in 2003 http://www.guardian.co.uk/society/joepublic/2009/feb/23/email-text-in-prison [Accessed 16.09.13]

[6] A ‘determinant sentence’ is one with a fixed term of imprisonment in years or moths as opposed to a ‘life sentence’ with no fixed time.

[7] Ministry of Justice. Prison Service Orders, England and Wales. Accessed 20.05.13 http://www.justice.gov.uk/offenders/psos

[8] Ministry of Justice Prison Service Instructions. England and Wales. Accessed 20.05.2013http://www.justice.gov.uk/offenders/psis

[9]Prerogative of Pardon at Application no. 66069/09, 130/10 and 3896/10 (21.09.12) Vinter (deceased), Bamber and Moore v UK. Observations on Behalf of the Government of the United Kingdom. At para. 99. ‘Where it is correct that the prerogative is available in extremely limited circumstances, as a constitutional backstop to prevent injustice, it could not be properly used to re- invent a statutory discretion recently abolished by Parliament as here. Even if there was a theoretical possibility of its use in such cases it plainly has not been used or contemplated and does not exist de facto. Furthermore it is a prerogative of mercy rather than justice, and so exists beyond the law.’ For Miscarriages of Justice and the possibility of Prerogative of Pardon see: Mansfield M, foreword xxii and pg. 226. Naughton, M. The Criminal Cases Review Commission: Hope for the Innocent, 2012 edition, Palgrave, Basingstoke.

[10] Conservative Home Blogs http://conservativehome.blogs.com/thecolumnists/2013/07/priti-patel-mp-ministers-should-reject-echr-judgements-that-undermine-the-sovereignty-of-our-parliam.html [Accessed 16.09.13]

[11] Bamber, J. ‘Whole Life Tariff Reviews: Hope for the Future However Tenuous That Hope May Be.’ 20.10.12.http://www.jeremy-bamber.co.uk/whole-life-tariff-reviews-by-jeremy or for further detail on the wider context, see Jeremy Bamber Campaign, http://www.jeremy-bamber.co.uk/jeremy-s-sentence

[12] R (Doody) v Secretary of State for the Home departmenthttp://en.wikipedia.org/wiki/R_v_Secretary_of_State_for_the_Home_Department_Ex_p_Doody

[13] In May 2013, Home Secretary, Theresa May announced plans to introduce further ‘Death Sentencing’ for unlawful killing of police officers at the annual Police Federation Conference.http://www.guardian.co.uk/uk/2013/may/15/theresa-may-police-whole-life-sentence