Ryder, R (on the application of) v The Lord Chancellor

Secondary legislation restricting criminal legal aid is lawful where it falls within the statutory purpose and the decision-maker has had particular regard to the interests of justice. For Article 14 purposes, the relevant comparison is between persons in genuinely analogous situations. Prisoners awaiting expiry of a minimum term are not in an analogous position to prisoners whose cases permit the Parole Board to direct immediate release. A distinction based on that difference may lawfully be drawn by a bright-line rule, provided it has objective and reasonable justification and is proportionate. Rational disagreement with the policy does not establish ultra vires, irrationality or unfairness. The court should be slow to substitute its assessment for that of the executive when scarce public resources and legal-aid priorities are being allocated.

The claimant was serving a mandatory life sentence with a minimum term expiring in 2017. He obtained an oral pre-tariff review before the Parole Board, intended to consider possible transfer to open conditions, but was refused legal-aid advocacy assistance under amendments to the criminal legal-aid regulations.

He challenged the relevant amendment on three grounds: that it was ultra vires the Legal Aid, Sentencing and Punishment of Offenders Act 2012; that it unlawfully discriminated against him contrary to Articles 5 and 14 of the Convention; and that it breached common-law principles of consistency.

1. Ultra vires. The proposed amendment was permitted. Section 15 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 authorised regulations concerning criminal legal aid, subject to particular regard being had to the interests of justice. The Lord Chancellor had complied with that requirement. The restriction targeted legal aid according to an assessment of need and priorities within the statutory purpose. R (Public Law Project) v Lord Chancellor [2014] EWHC 2365 (Admin); [2015] 1 WLR 251 was distinguishable because it concerned civil legal aid and a materially different statutory scheme.
2. Article 14. The court applied the five-stage framework identified in R (S) v Chief Constable for South Yorkshire [2004] UKHL 39; [2004] 1 WLR 2196. The claimant’s position was not within the relevant ambit of Article 5, although the court did not rest its decision solely on that conclusion. More decisively, binding authority in R (Clift) v Secretary of State for the Home Department [2006] UKHL 54; [2007] 1 AC 484 established that a prisoner’s status under his sentence was not an Article 14 status. The court was required to follow that decision.
3. The proposed comparators were not in a genuinely analogous situation. In the claimant’s case the Parole Board could recommend transfer to open conditions but could not direct release before expiry of the minimum term. In the comparator cases the Board could direct release. That was a relevant difference. The distinction was rational, objectively justified and proportionate, having regard to legal-aid priorities, public resources and public confidence. A bright-line rule and no overriding exceptional-case discretion were legally permissible.
4. Common law. The consistency argument was no more than a variant of the discrimination argument. The amended regulations were neither arbitrary nor irrational.
5. The claim for judicial review was dismissed. Mr Justice Stewart agreed.

This was a first-instance judicial review in the Administrative Court. The judgment records that an appeal was pending in R (The Howard League for Penal Reform) v The Lord Chancellor [2014] EWHC 709 (Admin), but that earlier proceedings concerned different issues.