Further representations in relation to LSC proposals in respect of Prison Law
Part II
- In the course of our earlier submission we made reference to the findings of Lord Bradley in relation to the very high instances of mental health disorders and problems amongst prisoners and the difficulties faced by those prisoners. We made the point that the prison system was at best a daunting experience for prisoners and at worst a very hostile and threatening environment. The situation is hugely problematic for prisoners with psychiatric or psychological problems. The report argued in favour of certain prisoners being taken out of the prison system by, for example, ensuring that prisoners suffering from mental health problems were not set up to fail by being inappropriately the subject of ASBOs or required to pay fines which they were likely to default on.
- Our point is that there are currently a huge number of prisoners in the prison system who have a crucial need for legal advice and need for that advice to be prompt, effective and unfettered.
- We refer LSC to the judgment in the House of Lords cases of Secretary of State for Justice (Respondent v James (FC) (Appellant)(formerly Walker and another) and R (on the application of Lee)(FC)(Appellant) v Secretary of State for Justice (Respondent) and one other action. The case reference is [2009] UKHL 22. We have not yet had opportunity to consider the judgment in detail. However, we trust that it will be apparent to LSC that the case involves the effect of IPP sentences on prisoners. We have previously argued that a major reason for the increase in prison law cases has been the ill thought out introduction of indeterminate sentences for public protection (IPPs) without adequate resources. This aspect was dealt with in the House of Lords’ decision and Lord Hope of Craighead stated at page 1 paragraph 3:
“There is no doubt that the Secretary of State failed deplorably in the public law duty that he must be taken to have accepted when he persuaded Parliament to introduce indeterminate sentences for public protection (“IPPs”) by section 225 of the Criminal Justice Act 2003. He failed to provide the systems and resources that prisoners serving those sentences needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods, or reasonably soon thereafter, that it was no longer necessary for the protection of the public that they should remain in detention. The Divisional Court...granted a declaration to that effect on 31 July 2007...The Secretary of State has not appealed against that declaration. Very properly, he accepts that it was implicit in the statutory scheme of sections 224 and 225 of the Criminal Justice Act 2003 that he would make provision which allowed IPP prisoners a reasonable opportunity to demonstrate to the Parole Board that they should be released. As Miss Lieven QC for the Secretary of State put it, the scheme was such that it was not rational for him to fail to do so.”
- We and the Association of Prison Lawyers have raised these circumstances with LSC during consultations and we wish to stress the situation now. We do not consider that LSC could or should rely on projected figures in relation to the increase in the prison law budget. We believe that the figures reflecting recent rises in prison law costs are closely associated with problems associated with IPP sentences and other fundamental issues such as ongoing mental health problems in prisons and rising prison numbers.
- We trust that it is clear from the House of Lords’ judgment that the effect of IPP sentences has been a disaster. Lord Hope of Craighead referred to how the Secretary of State “failed deplorably in the public law duty that he must be taken to have accepted”. This deplorable failure has had a major effect on prisoners and has been a major influence on the number of cases and the cost of pursuing them.
- In our view it is hardly surprising that IPP prisoners sought to state human rights arguments in relation to their continuing detention and in particular sought to rely on Article 5(4) which provides:
“Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a Court and his release ordered if the detention is not lawful.”
- Apart from the cases pursued to the House of Lords, there have been numerous other cases where continuing detention of prisoners has resulted in the need for advice in relation to sentence progression, courses, transfer to facilitate courses and other potential remedies including the possibility of appeals against sentence.
- The views of Lord Hope of Craighead were echoed by Lord Carswell who at paragraph 23 of his judgment stated:
“I would only add that this case provides yet another example of the problems caused by over-prescriptive sentencing legislation. The draconian provisions of section 225 of the Criminal Justice Act 2003, leaving no room for the exercise of any judicial discretion, created entirely foreseeable difficulties when sentences for imprisonment for public protection were passed with short tariff terms. Pelion was piled upon Ossa when for some unfathomable reason it was decided that the new scheme would be resource-neutral and so sufficient facilities necessary for IPP prisoners to demonstrate their fitness for release were not made available. Fortunately section 13 of the Criminal Justice and Immigration Act 2008 has improved the situation materially, but it is to be hoped that future sentencing legislation will be framed in such a way as to avoid the pitfalls into which these misguided provisions fell.”
- We invite LSC to consider very carefully the nature, tone and extent of the criticisms by Lord Carswell. The case is referred to as providing “yet another example of the problems caused by over prescriptive sentencing legislation”. The provisions are referred to as “draconian”. There is reference to how section 225 “created entirely foreseeable difficulties”. There is reference to how, “for some unfathomable reason it was decided that the new scheme would be resource-neutral”.
- We repeat the point made earlier to the effect that section 225 of the Criminal Justice Act 2003 and the IPP regime has been a disaster, including for legal aid funding. We share the view of Lord Carswell that this case provided yet another example of problems caused by over-prescriptive sentencing legislation.
- Lord Brown of Eaton-under-Heywood stated at paragraph 24 of the judgment:
“Rapidly IPPs swamped the prison system with increasing numbers of life sentence prisoners (up from 5,807 on 31 March 2005 to 10,911 on 31 March 2008), many with comparatively short tariffs”
There is reference to how the number of sentences took the National Offender Management Service by surprise. It was not possible to put into effect Prison Service Order 4700: to give all life sentence prisoners “every opportunity to demonstrate their safety for release at tariff expiry”.
- At paragraph 26 Lord Brown stated;
“Put shortly, there were neither the systems nor resources available, particularly with regard to short term IPP prisoners, to undertake the required assessments and prepare sentence plans so as to indentify the relevant risk factors and how to address them, to provide the necessary courses, to move prisoners from local prisons to training prisons where appropriate courses could be undertaken, and generally to enable prisoners to demonstrate their safety for release, let alone treat and correct their offending behaviour. The undoubted consequences was that a number of short tariff IPP prisoners, once their tariff dates expired, even assuming they were then safe to release, would have been unable to demonstrate this to the Board (which sometimes is only possible through their undertaking coursework), and that a further number remained unsafe to release because they had not had the opportunity to undergo courses designed to eliminate or at least reduce the risk they posed.”
We trust that this makes it clear why advice was needed in relation to assessments, sentence plans, risk, transfers to facilitate courses and so on. It should be noted that the number of life sentence prisoners almost doubled for the period 2005-2008.
- In considering his judgment Lord Brown made the point at paragraph 29 that “it will readily be appreciated that your Lordships’ decision on these issues will affect not just these three appellants but hundreds, perhaps thousands, of other IPP prisoners, past and present.”
This provides further information in relation to the number of prisoners who are effected by the IPP fiasco.
- In the conclusion to his judgment Lord Brown at paragraph 65 stated
“In the result all three appeals fail and must be dismissed. I cannot, however, part from this case without registering a real disquiet about the way the IPP regime was introduced. It is a most regrettable thing that the Secretary of State has been found to be – has indeed now admitted being – in systemic breach of his public law duty with regard to the operation of the regime, at least for the first two or three years. It has been widely and strongly criticised, for example by the Select Committee on Justice. Many of the criticisms are to be found in the judgments below and I shall not repeat them. The maxim, marry in haste, repent at leisure, can be equally well applied to criminal justice legislation, the consequences of ill considered action in this field being certainly no less disastrous. It is much to be hoped that lessons will have been learned.”
- We conclude by repeating the comment by Lord Brown to the effect that there was a systemic breach of the Secretary of State’s public duty, at least for the first two or three years. Lord Brown stated “the maxim, marry in haste, repent at leisure, can be equally well applied to criminal justice legislation, the consequences of ill considered action in this field being certainly no less disastrous.” We believe that this maxim has equal validity in relation to proposed changes in relation to legal aid. We believe that acts such as the introduction of IPP sentences have impacted on legal aid funding. The problem is in the process of being resolved and we see no basis for assuming that costs will increase exponentially. We have seen no substantial research to justify the suggested figures for increases in legal aid. We believe that a knee jerk reaction to perfectly explainable increases in legal aid cases and the legal aid budget could easily damage or largely destroy the available legal aid provision in relation to prisoners. We believe that the consequences of ill-considered action could severely damage the vital and committed legal aid provision which is in place and which is already stretched to the limit by budgetary limitations.
Swain & Co
7 May 2009