The Government made significant changes to the areas of Prison Law covered by Legal Aid back in 2013. The Legal Aid, Sentencing and Punishment of Offenders (LASPO) Act 2012 reduced the scope of Legal Aid with a view to making savings.
What changed as a result of LASPO
LASPO removed the ability for firms which held a legal aid contract to provide assistance with the following areas, ranging from issues surrounding categorisation, sentence planning, licence conditions and many more. Following the introduction of LASPO legal aid was only available for the following issues:
● Parole – Where the Parole Board has the power to direct release
● Adjudications before the Independent Adjudicator
● Sentence Calculation – Where the internal complaints procedure has been exhausted
The reduction in the scope of legal aid has no doubt had a significant impact on those serving custodial sentences. With staff shortages and unrest within the prison system, the ability to engage a lawyer to challenge various issues during the course of a sentence seems even more important than it ever has.
Those prisoners serving indeterminate sentences were no longer able to get assistance with sentencing planning, which would include accessing offending behavior courses aimed at reducing their level of risk. In addition, those indeterminate sentence prisoners who are pre-tariff would not be able to instruct a solicitor under legal aid, in their application for a transfer to open conditions.
Is Legal Aid now available?
The Howard League for Penal Reform and the Prisoner Advice Service issued a challenge against the cuts made by the Government. The Court was asked to give consideration to five areas which had been made unavailable as a result of LASPO including:
• Pre-tariff reviews
• Close Supervision Centres
• Cat A reviews
• Access to offending behavior courses
• Adjudications where no additional days could be awarded
Back in 2017, the Court concluded that the Government’s decision to remove legal aid in relation to pre-tariff reviews, Close Supervision Centres and Category A reviews was unlawful. The Government has since reflected on the Court’s decision and has decided not to appeal. As a result, The Criminal Legal Aid (Amendment) Regulations 2017 is due to come into force on 21st February 2018 making legal aid available for the areas on which the Court ruled.
Why should I get a lawyer?
There is good reason to instruct a lawyer in relation to the new areas for which Legal Aid will again be available, as well as those areas already covered Legal Aid.
Those subject to an indeterminate sentence will be eligible for release as of their tariff expiry date. Their release will be determined by the Parole Board, once the Board have conducted an assessment of their risk. Prior to their tariff expiry, such prisoners will be considered for a transfer to open conditions, a move which is seen as a significant stepping stone on their journey towards release. Often, but not all of the time, prisoners who have not been tested in the community by way of a period in open conditions, will be refused Parole once eligible for release.
The Parole Board are an independent body who will take evidence from professionals before making their decision. A lawyer can assist in the presentation of your case to the Parole Board, particularly in circumstances where you do not have support from your Offender Manager or Offender Supervisor for a progressive move. Often evidence from psychologists can be presented to the Parole Board and lawyers can also challenge this evidence by way of the instruction of an independent Psychologist.
Indeterminate sentence prisoners will no doubt be aware of the delays experienced in prison as a result of budget cuts, lack of staff and a lack of offending behavior programme availability. It is therefore important that when seeking a move to open conditions, expert advice is sought to ensure that progression takes place as soon as possible.
Category A Reviews
As with pre-tariff reviews, Categorisation is a significant stage in the progression of those in custody, particularly those who are identified as Category A prisoners. Category A prisoners are confined in the highest security prisons in the country. These prisons offer a significantly restricted regime.
Category A prisoners are defined as follows:
A prisoner whose escape would be highly dangerous to the public, the police or the security of the State, and for whom the aim must be to make escape impossible
Categorisation is generally conducted by the prison, however Category A prisoners have their categorisation considered by the Deputy Director of Custody. A dossier will be produced and the prisoner is able to submit representations as to their appropriate categorisation. The dossier will often include incorrect information on which the Deputy Director would make their assessment.
Solicitors can assist in the drafting of representations and the identification of incorrect information. Being categorised to a security categorisation lower than Category A will enable the prisoner to locate to a prison with a less stringent regime, where they are afforded a greater level of freedom.
Close Supervision Centres
The prison system has a number of strategies for dealing with prisoners who disrupt the prison regime. This includes segregation and also transfer to Close Supervision Centres. These centres are designed to hold the most disruptive prisoners on a longer-term basis than Segregation Units. Given the nature of those who are held in these centres, the regime is very restrictive. Careful consideration should be given to the transfer of prisoners to these centres and no doubt prisoners would seek to avoid such a transfer.
When being considered for transfer to a Close Supervision Centre, or when a review of their detention in such a centre is up for consideration, prisoners have the ability to seek legal representation. A lawyer can consider the documents which will be considered in the decision-making process and challenge any information on your behalf.
What if I cannot get Legal Aid?
Even in circumstances where Legal Aid is available, prisoners may not be eligible for various reasons. Legal aid is subject to a means assessment and those who do not satisfy the requirements are unable to benefit from Legal Aid. If this is the case or if you require assistance on an issue where legal aid is not available, you can instruct a lawyer on a private paying basis. We offer competitive quotes for any issues outside of the scope of legal aid.
We have an expert team of lawyers who can offer specialist assistance on a variety of issues. Should you require any assistance with a Prison Law issue please contact our Prison Law department at Hine Solicitors on 01865 518971 or FREEPOST – RTHU – LEKE – HAZR Hine Solicitors, Seymour House, 285 Banbury Road, Oxford OX2 7JF for our Oxford office or FREEPOST – TRXS-TYCU- ZKHY Hine Solicitors, Crown House, 123 Hagley Road, Birmingham B16 8LD for our Birmingham Office