SPM (R on the application of) v SECRETARY OF STATE FOR THE HOME DEPARTMENT

The common law protects effective access to justice, including access to legal advice. An executive hindrance requires clear statutory authority, and unlawfulness may arise where there is a real risk of preventing access to justice in real-world conditions.

There is no general entitlement to receive legal advice in person. Telephone or video advice may be adequate, depending on the circumstances, the quality of the facilities and the duration of the arrangement. A temporary remote arrangement for detainees was lawful where legal aid remained available and the evidence did not establish a real denial of access to justice.

A lack of legal aid may, in an appropriate detention case, obstruct the fundamental right of access to justice. The public sector equality duty requires due regard, not a particular outcome.

These linked judicial review claims challenged the arrangements for legal advice at Derwentside Immigration Removal Centre, the principal female-only immigration removal centre. SPM, a detained South African national, and Women for Refugee Women alleged that the absence of routine in-person Detained Duty Advice Scheme surgeries made detention unlawful, discriminated against women, breached the public sector equality duty and, in SPM’s case, breached the ECHR and constituted false imprisonment.

Derwentside opened after Yarl’s Wood was re-roled as a male centre. A tender for in-person legal advice failed, so remote interim arrangements operated from January to June 2022. New contracts requiring in-person advice commenced on 1 July 2022. The central issues were whether the arrangements denied effective access to justice, constituted sex discrimination, breached the public sector equality duty or rendered SPM’s detention unlawful.

1. Ground 1. The common law right of access to justice includes effective access to legal advice and confidential communication with a legal adviser. Executive hindrance requires clear statutory authority. The relevant detention legislation and the Detention Centre Rules did not authorise hindering access to legal advice. However, the court applied the approach in R (Unison) v Lord Chancellor and asked whether the arrangements created a real risk that detainees would be prevented from accessing justice in real-world conditions.
2. There is no absolute right to in-person legal advice. Legal aid legislation permits services to be provided by telephone or electronic means. During the six-month interim period, detainees could obtain privately funded or publicly funded advice, use telephone or video-conferencing facilities, and obtain further controlled or licensed work where appropriate. The video facilities were of good quality, and the evidence did not establish a general denial of effective access to justice. The arrangement was therefore lawful.
3. The court accepted that lack of legal aid can, in appropriate circumstances, obstruct the fundamental common law right of access to justice, including where a person is detained. The permanent contracts required in-person DDAS services. Concerns about provider capacity were speculative, but the Legal Aid Agency was required to monitor performance and commission emergency provision if services broke down.
4. Grounds 2 and 3. Female detainees were not treated less favourably in the provision of legal advice. The remote arrangements reflected the position in male centres during the COVID-19 period. Alternatively, any difference was justified under paragraph 26 of Schedule 3 to the Equality Act 2010. The Defendant had also complied with the public sector equality duty. The detailed equality impact assessment considered the relevant disadvantages and mitigation. The duty required due regard, not a particular result, and no further assessment was required when the interim arrangements were introduced.
5. Ground 4. Permission was granted, but the substantive claim under article 14 of the ECHR failed. The circumstances fell within the ambit of Convention rights, but SPM had obtained effective assistance, challenged removal, was referred to the National Referral Mechanism and was released on bail. There was no material sex-based difference of treatment; alternatively, any difference was objectively justified.
6. Ground 5. The challenge based on lack of in-person advice failed. The remaining allegations concerning unnecessary prolongation of detention and failure to identify and refer SPM as a trafficking victim were adjourned.

SPM’s claim was dismissed on Grounds 1, 2, 3, 4 and 5(i). Women for Refugee Women’s claim was dismissed on Grounds 1 to 3.

This was a first-instance judicial review. Permission had previously been granted on Grounds 1 to 3 and Ground 5, while permission on Ground 4 was granted by Lang J at the substantive hearing.