High Court upholds withdrawal of legal aid for pre tariff life sentence prisoners


The High Court has today upheld the Lord Chancellor’s withdrawal of legal aid for pre tariff life sentence prisoners.

Mr Ryder, a pre tariff prisoner, recently received a referral to the Parole Board for consideration of a transfer to open conditions (a Category D prison). Normally this happens about three years prior to the tariff expiry and in an ideal world, prisoner who have made good progress may achieve a transfer to open conditions. This would give the prisoner the earliest opportunity of release by being able to convince the Parole Board at the tariff expiry hearing (for which legal aid would be available) that he or she is safe to be released, having spent time in open conditions.

In the present case, the Lord Chancellor withdrew legal aid for pre tariff prisoners at a hearing as part of cuts to legal aid.  This was alongside other swathing cuts to prison law funding.  Legal aid can now only be obtained post tariff. It has also been retained in certain cases which concern prison discipline and sentence calculation.

The claimants’ argument was that there was a need to achieve open conditions as a step towards eventual release.  It would provide the earliest opportunity for early release for those prisoners who had made sufficient progress. It was also argued that discrimination had occurred under Article 14 of the European Convention on Human Rights in respect of the difference in treatment between pre tariff prisoners and other types of prisoner such as determinate sentence prisoners and post tariff indeterminate sentence prisoners.

The Judgement

The court rejected the claim for judicial review. In summary:

They considered that the High Court judgement referred to (public law project v Lord Chancellor 2015) was distinguishable in that dealing with civil legal aid.

The Courts did not consider that there was discrimination on the basis that it was not ready to accept that the Article 5 ancillary duty which had recently been recognised in the Supreme Court (Haney) did not fully meet the 5 stage test that had been set out when considering whether discrimination had occurred

The reason for this is that there is no absolute right to a pre tariff review by the Parole Board.  It is a matter of policy. There is no right of release at such a hearing and therefore, the judges felt that Article 5 did not provide a sufficient right on which to base a discrimination claim under Article 14.  The judges noted that direct release from closed conditions could occur in some cases and as such, a transfer to open conditions was not an absolute necessity for a life sentence prisoner to seek release after the tariff had expired.

The court felt there was a justification for the difference in treatment between the relevant groups because in the case of pre tariff prisoners, release could not occur by law.

Now, pre tariff prisoners will not have the opportunity of legal representation before Parole board hearings unless they can afford to pay for this privately.

Mike Pemberton - Head of Human Rights Law and Civil Liberties at Stephensons Solicitors LPP said:

“The judgement is disappointing given the importance of achieving open conditions for life sentence prisoners. Open prison is an important step in prisoners’ rehabilitation and can assist with the overall reduction of risk for other prisoners. The court has concluded that a difference in treatment is justifiable on the basis that a pre tariff prisoner cannot be released. However, in many cases, the transfer to open conditions plays a crucial part in eventually convincing the Parole Board to release the prisoner.

There have been cases of prisoners being release from closed prisons in the past but figures provided by the defendant in this case did not provide (in our view), an adequate breakdown of the nature of those prisoners. Direct release of a short term sentence prisoner or even a recalled life sentence prisoner is somewhat different to the position of someone who has spent many years incarcerated for a very serious offence.

There is no point in having a prisoner sat in a high security prison (which costs more to the tax payer) when they could effectively be managed in lower security conditions. This enables rehabilitation to occur (where safe) and the assessment of the risk is one for the Parole Board which is extremely complex. A Parole Board judge who provided evidence fully concurred with this view and the need for legal representation at hearings for pre tariff prisoners. We are currently considering our position in respect of an appeal against the judgement”.