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Robin Hood in reverse, Inside Time

Judgment in the Prisoners’ Earnings case was handed down on 3 July 2012. Unfortunately, the legal challenges to the 40% “Victim Levy” policy were all dismissed by High Court Judge, Mr. Justice Sales.

There were two separate challenges to the policy, one brought on behalf of a male prisoner and the other by a female prisoner, both serving indeterminate sentences. Both challenges were treated as test cases.

To succeed with this challenge, the claimants needed to go further than pointing out the unfairness of the policy they needed to persuade the Court that the policy was unlawful.

The claim brought by the male prisoner, in which I was instructed, was based on Article 1 of Protocol 1 to the European Convention on Human Rights. This Article protects the right of every person to the “peaceful enjoyment of his possessions”.

The Judgment is complex and detailed and I will avoid boring readers by trying to summarise it all here. In short, the Judge concluded that the deductions from prisoners’ earnings should be regarded as a tax to be levied on them to secure funding to support the victims of crime. He found that the policy fell well within the State’s “margin of appreciation” to make social and economic judgments.

Prisoners in the open estate may be interested in Mr Justice Sales’ observations that “working outside a prison is entirely voluntary for a prisoner” and that “individual prisoners may be expected to make a cost benefit assessment in relation to their own particular situation when deciding whether to apply for and undertaking work outside a prison.”

I am aware from numerous conversations with many prisoners in open conditions that the situation is not quite as clear cut as that. Several prisoners told me that they had been told that they would lose privileges and would be at risk of being moved back to closed conditions if they refused to work.

This judgment implies that any prisoner who is told that taking up paid work in the community is compulsory can point out that it is not. Any decision to move a prisoner out of open conditions because he will not do paid work in the community is likely to be unlawful.

The really disappointing aspect of this judgment is that it did not really deal at all with the likely impact on the resettlement prospects of prisoners in open prison conditions who are preparing for their release.

Inside Time readers will know that almost all prisoners need to save for accommodation and other resettlement costs for after their release from prison. Many wish to begin providing for their families and to re-establish their family links. The policy which has been introduced does not make any allowance for these costs.

There is already evidence that one of the results of this policy is that prisoners are not taking up the opportunity to work in the community. Prisoners who do continue to take up paid work will be deprived of the chance to save very much at all to support their families or to prepare for their release.

Prisoners who are released after long sentences have a much better chance of resettling into the community and not reoffending if they have a job, somewhere stable to live and strong family relationships.

Another worrying aspect of this case is that the Legal Services Commission (who are in charge of legal aid decisions) confirmed after the hearing had taken place that they could not take account of the levy deductions when deciding if a prisoner is financially eligible for public funding.

This could now mean that the Legal Services Commission will now try to make the claimant pay for a large chunk of the legal costs in the case. It has also meant that there is no claimant to pursue an appeal against the judgment affecting the male prisoners.

The present government claims to be committed to rehabilitation and effective resettlement for prisoners. This policy flies in the face of these goals. Even though the levy has been held to be lawful, it does not mean that it is a good idea.

When Kenneth Clarke has finished being delighted about this judgment perhaps he might take the time to reflect on that?

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