Howard League for Penal Reform & Anor, R (On the Application of) v The Lord Chancellor

A system for administrative decision-making is unlawful where, viewed across the full run of cases, it carries an unacceptable risk of unfairness inherent in the system itself. The threshold is high. The court must assess the importance of the interests at stake, the complexity of the issues, the individual’s ability to participate effectively and the practical availability of alternative safeguards.

Removing legal aid from prison processes involving complex risk assessments may cause systemic unfairness where vulnerable prisoners cannot participate effectively and existing assistance lacks capacity or independence. Post-decision complaints or judicial review will not necessarily cure an unfair original process. Legal aid is not invariably required: sufficiently accessible support and a decision-maker capable of correcting errors may preserve fairness.

Two charities holding prison-law and public-law contracts challenged amendments made by the Criminal Legal Aid (General) (Amendment) Regulations 2013. The amendments removed criminal legal aid from several categories of decision-making affecting prisoners. The Divisional Court refused permission for judicial review in [2014] EWHC 709 (Admin).

Following a permission decision reported at [2016] EWCA Civ 819, the Court of Appeal retained and heard the judicial review. The remaining challenge concerned pre-tariff Parole Board reviews, Category A reviews, close supervision centres, offending behaviour programmes and disciplinary proceedings in which additional detention could not be imposed.

The central question was whether, after considering the practical alternatives to publicly funded legal assistance, the amended scheme carried an unacceptable risk of unfair and therefore unlawful decision-making.

1. The application for judicial review was granted in part. The removal of legal aid produced inherent or systemic unfairness in pre-tariff Parole Board reviews, Category A reviews and decisions concerning placement in or discharge from close supervision centres. The threshold was not met for offending behaviour programmes or the relevant disciplinary proceedings.

2. A systemic challenge requires consideration of the full run of cases. It must establish more than aberrant decisions or a series of operational failures. The threshold is high, but whether the system respects the irreducible minimum of fairness is a question of law for the court. Only a modest margin was due to the Lord Chancellor on that question.

3. The governing assessment was contextual. Relevant matters included the importance of the interests at stake, the complexity of the procedural, legal and evidential issues, the prisoner’s ability to participate effectively having regard to age and mental capacity, and the practical availability of other assistance. Legal aid was not invariably indispensable because other safeguards could make a process fair.

4. Pre-tariff and Category A decisions materially affected prospects of release and involved potentially complex assessments of future risk, psychological evidence, missing material and sensitive information. Vulnerable prisoners could not reliably identify or answer such matters unaided. Assistance from prison staff, other prisoners and post-decision mechanisms lacked the capacity, independence or practical availability required across the run of cases.

5. Close supervision centre decisions placed important interests at stake under highly restrictive conditions. Risk assessment was central, yet assistance came from those responsible for the prisoner’s care and there was no adequate independent scrutiny or readily accessible formal appeal. The position was finely balanced, but vulnerable and mentally ill prisoners could not participate effectively across the relevant class of cases.

6. Offending behaviour programme decisions were less directly connected to release and were generally less complex. Offender managers and supervisors were required to engage prisoners in sentence planning and could provide an effective safeguard. In disciplinary proceedings, the lesser penalties, specific safeguards for vulnerable prisoners and the governor’s power to reconsider legal representation under the Tarrant criteria meant that complaints or judicial review could correct an erroneous refusal.

1. Court of Appeal (Civil Division): The court retained and determined the judicial review, granting relief in relation to pre-tariff Parole Board reviews, Category A reviews and close supervision centre decisions, but rejecting the challenge concerning offending behaviour programmes and disciplinary proceedings: [2017] EWCA Civ 244 .
2. Court of Appeal (permission stage): The court allowed the appeal against the refusal of permission, granted permission limited to inherent or systemic unfairness and retained the substantive hearing: [2016] EWCA Civ 819.
3. Divisional Court of the High Court: Rafferty LJ and Cranston J refused permission for judicial review on all grounds because the high threshold was not met on the evidence then available and the challenge was premature: [2014] EWHC 709 (Admin) .