ACCESS TO PRIVATE LEGAL ADVICE DURING THE PANDEMIC: CORRESPONDENCE WITH THE LORD CHANCELLOR
Understandably, the health and safety of prison staff and prisoners is the clear priority during the pandemic, but the lockdown restrictions are posing a real threat to prisoners’ access to justice. Access to private legal advice is extremely important. Where there is no access, injustice becomes more likely and this has a negative impact on society, as well as individuals.
On Thursday 19th March, The Legal Aid Practitioners Group (LAPG), The Law Society and The Association of Prison Lawyers (APL) wrote to Governors and Directors of prisons across the UK, as well as the Chief Executive of The Parole Board and the Head of the Public Protection Casework Section, to reiterate the importance of finding ways for prisoners to maintain contact with their legal representatives. Andrew Sperling, Managing Director & Solicitor-Advocate at SL5 Legal, co-authored the letter in his capacity as member of Management Committee of the Legal Aid Practitioners Group (LAPG).
The general response to this letter was positive: prison staff at many prisons have written to confirm that they will endeavour to facilitate remote access wherever possible, providing the resources required were available. But it has become clear that many prisons have very limited facilities to enable conference calls or video-links during the lockdown and prisons that do have the facilities often do not have the staff to allow prisoners to use them safely. Some establishments said that they were no longer accepting any video-link or phone conference bookings until further notice.
In response, the LAPG and the APL wrote this letter, dated 6th April to Rt Hon Robert Buckland QC MP, Lord Chancellor and Secretary of State for Justice, the Prisons Minister Lucy Frazer and the Lord Chief Justice, requesting their active support during these unprecedented times.
In the past three weeks since that letter was sent, worries regarding the safety of prisoners have grown. It has become clear that there are too many people in custody to manage the spread of COVID-19 and protect the lives of prisoners and prison staff. Prisoners and prison staff are dying, there are outbreaks in almost every prison and there are very many frightened prisoners who are desperate to be released. It is clear that prison governors and many staff would also like the population of prisons to be safely reduced to enable them to cope with the extraordinary challenges they face.
The Secretary of State announced a new temporary release scheme on 7th April. This scheme is complex and guidance has been very slow. It is not widely available in prisons. Understandably, prisoners and their families are desperate for legal advice and help. This is in addition to the thousands of prisoners who have parole cases and other legal matters about which they need to speak confidentially with their lawyers.
In the Secretary of State’s response of 29th April, he sought to provide reassurance. He stated that “prisoners situated in wings with in-cell telephony are able to contact their legal advisers, and especially where they are held in single cells they are able to undertake conversations in confidence”. We are aware of the small proportion of prisoners that have access to in-cell telephony. The majority have to use landing phones. There is huge competition for these. Confidentiality is a real problem as are time pressures.
There are some positive things in the Lord Chancellor’s response. He did confirm that steps are being taken to increase the number of mobile phones available to prisoners at sites which do not have in-cell provision and that, prisoners are being given a £5 per week phone credit in recognition of the withdrawal of normal visits. These are welcome steps but £5 phone credit may only be enough for prisoners to stay in contact with their family and friends; calls with legal representative that are strictly time-limited are inadequate for the detailed and sensitive discussions required in many cases.
The Secretary of State continues: “Where the above facilities are not available, or where they are not sufficient, we are encouraging prisons to make alternative arrangements…”. He does not provide any examples of what these alternative arrangements might look like. Our team have witnessed impressive efforts being made by prison staff in some prisons. Some are adapting and developing new IT solutions, some have developed extremely efficient booking processes for phone conferences almost overnight. There are, however, some prisons who have not provided any access at all. Some have even refused to accommodate parole hearings resulting in large numbers of hearings being delayed and prisoners who could be released or progressed to open conditions, remaining in closed prisons.
The Secretary of State refers to “new systems and processes [that] are currently the subject of extensive testing” to improve remote access. Unfortunately, no details of the enhanced facilities or improved booking process are provided or when they might be available to use.
We are pleased that he has responded and that his response acknowledges the importance of access to justice. It is not a defensive response. However, this is a crisis which is not going away any time soon and it is vital that every prison is given the tools and support they need to provide access to justice for prisoners. It is even more important that the early release programmes are properly resourced and that urgent action is taken to reduce the prison population. We know that this needs to be done safely. It also needs to be done fairly. There are many lives at stake.