Appeal against judicial review dismissal allowed where court found arguable case that legal aid funding removal in prison law was systematically unfair


Re: R (Howard League for Penal Reform) & Anor v Lord Chancellor [2015] EWCA Civ 819

The appellants challenged the refusal of the Divisional Court to grant their application for judicial review of the legality of criminal legal aid changes for prison law, introduced by the Criminal Legal Aid (General) (Amendment) Regulations 2013, SI 2013/2790.

The Court rejected the first ground of appeal, which alleged that the Lord Chancellor had failed to adequately consult upon the nature and extent of the changes proposed in relation to pre-tariff reviews and return to open conditions cases. The Court concluded that it was evident from the consultation paper that the Lord Chancellor was considering changes to Parole Board legal aid availability. Even if this was not the case, the Lord Chancellor had considered arguments that were equally applicable to these cases, and so it was unlikely that the appellants’ submissions on this issue would have made any difference to the eventual outcome.

However, the Court did agree that there was an arguable case that the removal of legal aid funding in seven principle areas of prison law amounted to systematic unfairness. The Court found that there was a case to be argued that the changes created an unacceptable risk that individuals would be subjected to unlawful decision-making. The Court agreed that the system could be particularly problematic when applied to prisoners with mental health issues or learning difficulties, who may be deprived of effective participation in decision-making without legal aid.

Phillippa Kaufmann QC was involved in this case.