R (Howard League for Penal Reform) v Lord Chancellor

The Court of Appeal applied established common law and Human Rights principles on procedural fairness to review the removal of criminal legal aid from specified categories of prison law by the Criminal Legal Aid (General) (Amendment) Regulations 2013 (implemented under the Legal Aid, Sentencing and Punishment of Offenders Act 2012). The court adopted the high threshold for a claim of "inherent" or "systemic" unfairness: the unfairness must inhere in the system itself across the full run of cases and not arise only from isolated or aberrant decisions. The court applied the factors identified in the authorities (importance of the issues at stake; complexity of the procedural, legal and evidential issues; and the ability of the individual to participate effectively without legal assistance) and considered available alternative safeguards (internal prison support, disclosure procedures, Parole Board case management, complaints, Prisons and Probation Ombudsman and judicial review/exceptional case funding under section 10 LASPO).

Applying those principles, the court concluded that removal of legal aid produced an inherently unfair system in three categories — pre-tariff Parole Board reviews where the Board cannot direct release, Category A categorisation reviews, and decisions about placement in Close Supervision Centres — because, in practice, the available alternatives did not secure effective participation for vulnerable prisoners across the run of cases. By contrast, the court held that removal of legal aid in relation to access to offending behaviour programmes and ordinary disciplinary proceedings did not meet the high threshold for systemic unfairness given the nature of those processes and the practical safeguards available.

Background and nature of the claim: The Howard League for Penal Reform and the Prisoners’ Advice Service sought judicial review of changes made by the Criminal Legal Aid (General) (Amendment) Regulations 2013 which removed criminal legal aid from a range of prison law matters with effect from 2 December 2013. The claim was brought against the Lord Chancellor under the Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO). The claim advanced multiple grounds but this Court granted permission limited to the contention that the removal of legal aid created an "inherent" or "systemic" risk of unfair decision‑making in the categories affected.

Procedural posture and path to this court: The Divisional Court (Rafferty LJ and Cranston J) refused permission at first instance ([2014] EWHC 709 (Admin)). The Court of Appeal granted limited permission to challenge on systemic unfairness grounds and retained the substantive hearing ([2016] EWCA Civ 819). The Equality and Human Rights Commission intervened.

Issues framed: (i) Whether removal of legal aid in the categories identified creates an unacceptable risk of unfair decision‑making across the full run of cases (the systemic unfairness test); (ii) whether alternative measures and safeguards in practice are sufficient to permit effective participation by prisoners, particularly vulnerable prisoners (those with mental illness, learning difficulties or other communication disabilities); and (iii) whether exceptional case funding (ECF) under section 10 LASPO or ECHR Article 8 considerations change the position in any category.

Evidence and legal principles: The court conducted a contextual evaluation, applying the established tests in authorities such as Doody, Osborn and Booth v Parole Board, Gudanaviciene, Detention Action, Director of Legal Aid Casework v IS and related decisions. The court examined extensive factual evidence about prison processes, Parole Board practice (including guides, Member Case Management, disclosure arrangements), the operation of Category A reviews, Close Supervision Centre procedures, the offender behaviour programme regime, disciplinary processes and alternative safeguards (prison staff assistance, prisoner mentors, internal complaints, IMBs, PPO, and judicial review/ECF).

Reasoning and outcome: The court applied the three-part evaluative test (importance; complexity; prisoner capacity and alternative assistance) to each of the five categories now in issue. It found that pre-tariff Parole Board reviews, Category A reviews and CSC decisions involve important, often complex risk assessments (sometimes requiring independent expert evidence and dealing with sensitive undisclosed material) and that, on the evidence, the alternatives do not reliably enable vulnerable prisoners to participate effectively across the full run of cases. For offending behaviour programmes and internal disciplinary hearings the court concluded the test was not met: the matters are less likely to require legal expertise or independent evidence to the same extent and offender managers, procedural safeguards and the Tarrant criteria (with judicial review available) provided adequate protection in the run of cases. The court therefore granted judicial review in part, quashing the challenged regulatory effect insofar as it removed legal aid for the three categories found to be inherently unfair, while upholding the removals in relation to OBPs and disciplinary hearings.

Appeal allowed in part. The court held that the removal of criminal legal aid by the 2013 Amendment Regulations resulted in an inherently or systemically unfair system in relation to (i) pre-tariff Parole Board reviews where the Board cannot direct release, (ii) Category A categorisation reviews, and (iii) placement in Close Supervision Centres, because available alternative safeguards did not secure effective participation by vulnerable prisoners across the run of cases. The court held that the threshold for systemic unfairness was not met in relation to access to offending behaviour programmes and ordinary disciplinary proceedings, for which the available procedures and safeguards were sufficient in practice.

Divisional Court refused permission: R (Howard League and Prisoners' Advice Service) v Lord Chancellor [2014] EWHC 709 (Admin). Permission to appeal on systemic unfairness grounds granted; Court of Appeal retained and heard the substantive claim (permission and procedural steps referenced at [2016] EWCA Civ 819). This judgment is the Court of Appeal determination: [2017] EWCA Civ 244.