During LAG’s 50 years, prison law has emerged as a distinct area of practice. Simon Creighton and Hamish Arnott look back to its beginnings and explore how things have – and have not – improved.
LAG first started publishing regular law and practice updates on prison law in 1994. At the time, it was still a relatively new area of practice and there was very little published material on the legal framework that applied to prisons. In fact, the area was so undeveloped that the first article was published under the rather convoluted heading, ‘The law relating to prisoners’ (July 1994 Legal Action 13). It dealt with personal injury claims and parole. One of the cases covered (R v Secretary of State for the Home Department ex p Erieira) was a challenge that was conceded by the secretary of state, which allowed a prisoner to see his parole dossier and the reasons for a negative parole decision. As a result of that challenge, the article explained, an increasing number of prisoners had gained access to their parole reports for the first time and it was apparent that the Parole Board had, in many cases, ‘rejected all the available evidence and given reasons for refusal which do not tally with any of the information before them’.
The article gives some insight into the reasons why procedural fairness is an essential starting point for substantive justice. In their seminal text, Prison Law
(OUP, 1993), Stephen Livingstone and Tim Owen described the ‘paradox’ of prisons as being total institutions where every aspect of life was either codified or regulated and yet the regulations were opaque and remained outside the reach of the law. The House of Lords had long since affirmed that prisoners retained all rights save for those expressly or implicitly removed by imprisonment (Raymond v Honey  1 AC 1
), and prisoners’ cases often raised important constitutional issues. However, the problem that prisoners faced when seeking to enforce those rights was that the regulations that governed prisons were largely inaccessible. Without knowledge of those policies and regulations, prisoners could not know what actions were lawful or unlawful and lawyers could not advise them. In keeping with its aim of making the law accessible and enforceable for all, LAG’s decision to start regular updates on prison law was an essential step in developing the very concept of prison law as a discipline.
At that time, there were other key legal developments emerging. British prisoners had long been one of the largest groups of applicants to the European Court of Human Rights and a series of decisions on parole issues led to major changes in domestic law. The Criminal Justice Act 1991 began the codification of a formal parole procedure for certain classes of prisoner, a process that would eventually extend to all prisoners with the Criminal Justice Act 2003. As thousands of prisoners became subject to a parole process each year, the demand for legal services increased exponentially, as did the number of legal challenges. The volume of material and the rapidly changing legal landscape meant that the annual prison law update became a twice-yearly article and is now spread out across four issues a year.
With the enactment of the Human Rights Act 1998 (HRA), prisoners no longer needed to take the long route to Strasbourg to enforce rights under the European Convention on Human Rights (ECHR), and prisoner-led challenges were at the forefront of defining the interface of conventional public law and the HRA. The issue of searching in prisons resulted in the House of Lords' judgment that remains the leading authority on the concept of proportionality in public law: R v Secretary of State For the Home Department ex p Daly  UKHL 26
. LAG was again able to address the need for clear and practical information by publishing two textbooks, one on parole proceedings and the other on general prison law.1Parole Board Hearings: law and practice, Hamish Arnott and Simon Creighton, is now in its third edition (2013).
As with other sections of the community that are vulnerable and marginalised, the backlash against the concept of ‘prisoners’ rights’ in the past decade has been prolonged and intense. The removal of legal aid for the majority of prison issues was partially halted by the intervention of the Prisoners’ Advice Service and the Howard League, which successfully persuaded the Court of Appeal that access to the courts was meaningless without an effective legal aid system (R (Howard League for Penal Reform and Prisoners’ Advice Service) v Lord Chancellor  EWCA Civ 819
; February 2016 Legal Action
34), but it remains the case that challenges to prison conditions are now largely unfunded and court challenges are rare.
There is little sign of any change to that approach with the Ministry of Justice (MoJ) excluding prison law from the recently announced increases in criminal legal aid remuneration. In another worrying sign, the recent consultation on a new Bill of Rights
is littered with examples of prison law cases as evidence that the HRA has gone too far. And to complete the assault, the recent Root and Branch Review of the Parole System
has surprised everyone by concluding that the powers of the Parole Board should be limited, with far greater executive control, seemingly in direct breach of the principles protected by ECHR article 5(4).
The debate around why prisoners should have the protection of the law is not a new one. It has unified political figures as diverse as Winston Churchill and Nelson Mandela in the view that the strength of democracy and of civilisation itself can be measured by a society’s treatment of its prisoners. Sadly, it appears that the current political debate has no room for a measured and balanced discussion of the important issues at stake. In recent years, we have witnessed the unedifying spectacle of a serving prime minister stating that the thought of prisoners having any voting rights made him ‘physically ill’
and receiving support from the opposition for that stance.
The use of imprisonment and the treatment of prisoners should be a concern for all. It reflects wider social issues and provides a stark reminder of those members of society whom the state is both failing and criminalising. The most recent figures on the ethnicities of prisoners in England and Wales
are shocking. Across the prison population, in 2020, 27 per cent of prisoners were of Black, Asian, mixed or other heritage despite representing only 14 per cent of the population as a whole. For young people, the situation is nothing short of catastrophic, with 53 per cent of the prison population under the age of 18 coming from these groups. The wholesale exclusion and criminalisation of a generation of young people based on their ethnicity demands urgent attention and action.
LAG’s work has never been more vital in ensuring that those who are disadvantaged can secure access to justice. Prisoners remain among the most vulnerable, facing the disadvantages not just of social and economic exclusion but also of physical exclusion, a problem exacerbated by the almost total closure of prisons during the pandemic. While substantive change is always incremental, the importance of procedural justice in closed institutions cannot be overstated and so even when the outlook is bleak, LAG remains a beacon of hope in a hostile landscape.
The authors and LAG would like to thank their current and past co-authors on ‘Prison law: recent developments’: Jane Ryan, Nancy Collins and Vicky King.
Along with Simon and Hamish, and Ed Cape, Matthew Hardcastle and Sandra Paul (see page 10
), LAG would also like to acknowledge the tremendous contribution of other authors in the criminal law field. Legal Action
’s regular ‘Youth justice: update’ authors, Kate Aubrey-Johnson and Jennifer Twite, also co-authored LAG’s book, Youth Justice Law and Practice
with Shauneen Lambe. The magazine’s sentencing updates are written by Andrew Keogh and we should also mention the previous author, Tony Edwards, who has co-written two LAG books, Criminal Costs: Legal Aid Costs in the Criminal Courts
with Colin Beaumont and Police Station: Adviser’s Handbook
with Matthew Hardcastle. Last, but by no means least, we must mention Kris Gledhill, who wrote Defending Mentally Disordered Persons
, and Edward Grange and Rebecca Niblock, authors of Extradition Law: A Practitioner’s Guide
. A huge thank you to you all and anyone else who has contributed to LAG’s books, Legal Action
and training over the past 50 years!