The Howard League for Penal Reform and Prisoners' Advice Service, R (on the application of) v The Lord Chancellor

A consultation on prison-law legal aid must be read as a whole. A statement that funding would remain for Parole Board reviews concerning ongoing detention did not promise funding for every Parole Board hearing.

However, a policy may be unlawful if it creates an unacceptable risk of unfair decision-making inherent in the system, rather than merely the possibility of individual aberrant decisions. The assessment considers the system in the round, including affected persons' ability to participate effectively and the safeguards available in practice. Legal representation is not necessarily the only safeguard. Leave was granted for substantive investigation of that issue.

The Howard League for Penal Reform and the Prisoners' Advice Service challenged changes made by the Criminal Legal Aid (General) (Amendment) Regulations 2013, which removed specified prison-law matters from criminal legal aid.

The Divisional Court dismissed the judicial review applications. On appeal, the appellants alleged inadequate consultation and systemic unfairness, including an unacceptable risk that vulnerable prisoners could not participate effectively in decisions affecting them. The central issues were whether the exclusions had been sufficiently signalled and whether the scheme required further examination because it might inherently produce unfair decision-making.

Disposition. The appeal was allowed in part. The consultation ground was dismissed as unarguable. Leave to apply for judicial review was granted on the systemic-unfairness ground, limited to the question whether the scheme created an unacceptable risk of unfair and unlawful decision-making. The substantive application was retained in the Court of Appeal.

1. Consultation. The consultation proposals were directed to funding cases involving ongoing detention, engagement of Article 5.4, or the criteria identified in Tarrant. Read in that context, the statement that Parole Board review matters would remain funded did not extend to every Parole Board hearing. Pre-tariff reviews did not engage Article 5.4 because the prisoners remained lawfully detained before expiry of the tariff. The exclusion of pre-tariff reviews and return-to-open-condition cases was therefore sufficiently signalled. In any event, the Lord Chancellor had considered representations about categorisation and licence conditions which raised materially similar concerns, making it highly unlikely that a clearer consultation would have changed the outcome.
2. Systemic unfairness. The authorities recognised that a policy could be unlawful where an unacceptable risk of unfair decision-making inhered in the system itself and went beyond isolated aberrant decisions. The assessment was evaluative and concerned the system in the round. It required consideration of the vulnerability of prisoners, their ability to participate effectively, and whether practical support and review mechanisms, including the prisoner complaints system and the Prisons and Probation Ombudsman, could adequately address the risk.
3. Permission and further evidence. On the material before the court, a significant number of prisoners might find effective participation difficult without support. The adequacy of the available mechanisms required fuller examination and evidence. The necessary support might not always be legal representation or legal aid. The ground was therefore arguable and warranted leave. The court invoked CPR Part 52.15(4) to retain the hearing as the most convenient and cost-effective course.

1. Court of Appeal (Civil Division): Allowed the appeal in part, dismissed the consultation ground, granted leave on the systemic-unfairness ground, and retained the substantive judicial review hearing.
2. Divisional Court: On 17 March 2014, Rafferty LJ and Cranston J dismissed the applications for judicial review challenging the legality of the prison-law legal-aid changes.