Locked up and litigious: what are we spending on legal aid for prisoners?

"Half of inmates use legal aid to complain: Prisoners spending £500,000 a week on issues including sentences and discipline."

The Daily Mail, 7 July 2013

With the Government consultation on Transforming Legal Aid now closed, legal aid has bounced back into the headlines as the costs incurred by prisoners were put under the spotlight.

These new figures are timely as Government proposals include cuts to the scope of legal aid for prison law cases. The Government expects the full legal aid reform to save around £220 million per year by 2018/19. 

What is legal aid and why are prisoners entitled to it?

The legal aid scheme was first introduced in 1949 as a way to guarantee free and adequate legal advice to anyone who couldn't afford a solicitor. It's been reformed a number of times since then, most recently with the Legal Aid, Sentencing and Punishment of Offenders Act 2012.

Legal aid is currently made available to prisoners - though subject to merits and means tests - for cases relating to their treatment, their sentences, disciplinary matters and Parole Board reviews.

The MoJ's recent legal aid consultation proposed removing criminal legal aid in prison law cases that "do not justify the use of public money"; this would include complaints about the type of prison or what sort of correspondence a prisoner is allowed.

The argument put forward by the Government is that many of these cases can be addressed by the prison complaint system. The Minister of State for Justice, Lord McNally, told the House of Lords last month that there are "other mechanisms" available to them, albeit without getting into the specifics.

The Minister added that this proposal is expected to result in "11,000 fewer criminal legally-aided cases brought by prisoners every year." They estimate this will save the state £4 million.

In response to this, the Law Society argued in a parliamentary brief that these changes are likely to be counterproductive and "lead to increased costs for the state and problems for prisoners". They said:

"In practice the types of cases that will go out of scope attract a fixed fee of £220 and are used to assist prisoners to progress and rehabilitate effectively. This includes making sure prisoners have a decent resettlement plan, that they are able to do the offending behaviour courses they need to do to get parole and, work to ensure effective reviews enabling prisoners to progress through the system from expensive high secure prisons to lower categories."

How big is the current bill for legal aid for prisoners?

It's not a straightforward question to answer: the data from the Ministry of Justice's Legal Aid Agency (LAA) does not differentiate between prisoners and other categories of legal aid claimants. The LAA also doesn't identify whether claims are related to the pursuit of a 'complaint'.

However, Lord McNally pointed out that the "prison law" category of criminal legal aid "currently relates to matters that may arise within the prison system regarding an individual's treatment, sentence, any disciplinary matters or parole board hearings", so the figures available on this matter help give us a general idea of the role legal aid plays within prison law.

In a written question in the House of Lords, Lord McNally then revealed that in the 2011/12 financial year, the volume of prison law claims was 43,780 for a total cost of nearly £23 million.

It's not entirely fair to conclude, as the Daily Mail did, that half of the prison population use legal aid to complain.

According to the Prison Population bulletin, the UK's prison population counted just over 86,000 inmates at the end of 2011 - just under double the number of prison law claims - but the legal aid figure covers the whole year's claims where the population is just a snapsnot on a particular day in December. In reality, over the course of twelve months, many more people will have been in prison. As Lord McNally pointed out himself, these are not all necessarily "claims related to the pursuit of a 'complaint'".

The total £23 million spent on legal aid in the last financial year equates to £440,000 a week, or £525 per prison law claim.

The cost of prisoners' legal aid over time

The MoJ's consultation paper includes data on spending on legal aid for prison law beginning from 2001. Back then the bill was calculated at £1 million - roughly £19,000 per week. At that point the prison population totalled fewer than 70,000.

The proportion of legal aid spending used for prison law has also grown, from 0.06% in 2001 to 1% in 2011/12.

As we can see, legal aid for prison law has steadily grown in the past decade. Prison law legal aid currently makes up 1% of all legal aid spending.

The most recent figures on this have revealed, as the Daily Mail reported, that £23 million per year is spent in legal aid for prison law, which at £440,000 they've rounded to £500,000 each week. That's about £525 per claim from a total 43,780 claims.

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Flickr image courtesy of the Rexburg Historical Society