While many people may not even consider prisoners’ rights and the need to protect them (through legal representation), those who do may not consider them a priority: they are there to be punished. However, the loss of liberty is in fact their punishment and not to suffer inhumane treatment outside the rule of law. Human rights, the rule of law and the ability to defend them should not stop at the prison gates.
But that will be the net effect should the government’s proposals to limit legal aid to matters that affect the length of a sentence such as serious disciplinary and parole review hearings. Prisoners will no longer be entitled to free representation over their treatment or conditions.
Prisoners are reliant on the state for their most basic needs making them extremely vulnerable and, if these proposals go through, will be at the mercy of prison staff and the internal complaints system. There will be no opportunity to challenge or expose abuse or mistreatment in the courts unless they can afford a solicitor themselves.
Simon Creighton, who specialises in prison law at solicitors Bhatt Murphy, said: “Prisons are closed institutions and every aspect of a prisoner’s life is regulated by the state and the problem with closed institutions, if they are not opened up to outside scrutiny, is there’s no check or balance to abuses of power that might occur.”
Prisoners without the means will no longer be able to challenge: the length of time they are held in solitary confinement, the category of prison they are in, access to rehabilitation programmes, removal of a baby from its mother or other disciplinary matters. Nor will they have representation to challenge bullying or abuse by staff, discrimination or loss of visiting rights.
These proposals also apply to people with learning difficulties and mental health issues. Before leaving office Andy Burnham, Labour’s former health minister, commissioned a report that established around 70% of prisoners have mental health or emotional problems.
Instead prisoners will be forced to rely on the prison’s internal complaints system. In effect that means taking up the complaint with the authority they have issue with who will then adjudicate on the matter. If prisoners are not happy with the mechanisms available the government’s consultation paper states they can apply for legal aid to apply for a judicial review, however, unless they can fund it privately the proposals will make that course of action largely unavailable too.
Creighton said it was through judicial reviews that it was established prisoners with a life sentence must be told how long they would serve. He said: “One case I dealt with was a man who was given a whole life tariff which he would never be released from and through this process [of judicial reviews] we uncovered documents hidden from him and in those documents there was legal advice given by Home Office lawyers to the then home secretary which said ‘this sentence is unlawful but don’t worry because no one will ever find out’.”
In another case the state decided to remove the disabled baby of a woman caught trafficking drugs into the country because there was ‘no guarantee that when she was finally sent home to Spain they would be able to remain together’, he said. “It took a minimum amount of work by my colleague to establish that the Spanish authorities would have her home and would allow her to remain with her baby. Proceedings had been issued, but by the time they had the authorities agreed to back down and she was allowed to keep her baby. My colleague’s dedication had saved not only a human tragedy from unfolding but also saved the state an enormous amount of money.”
The government proposes mother and baby cases such as this do not merit legal aid on two counts. One, it was a treatment case that does not affect the length of her sentence and two, she had not lived in the UK for 12 continuous months.
Remarkably cuts to the prison legal aid bill is to save the Ministry of Justice 0.1 per cent (£2m) of total legal aid spending (£2bn). Total spending on prison law in 2011/12 was £23m.