PSI 57-2000 - Legal Services Officers

Number Prison Service Instruction 57/2000

Amendment to PSO 2605 - The Role of the Legal Services (Legal Aid) Officer 2600

01 October 2000 02 October 2001

CONTAINS MANDATORY INSTRUCTIONS

For Action Monitored by

Governing Governors, Directors and Controllers. Operational Directors, Area managers, Standards Legal Services Officers and other staff in the Legal Audit Unit. Services Office

For Information On authority of

Area Manager Support Team Headquarters staff Prison Service Management Board,

Contact Point

Mary Batchelor / Gabrielle Kann: Prisoner Administration Group, Room 703 Cleland House, Tel: 020 7217 6482 / 6331

Other Processes Affected None

Issued 07/09/2000 Please refer to PSO 2605 - The Role of the Legal Services (Legal Aid) Officer

Purpose of Instruction

1. To update guidance given to Legal Services Officers (LSOs) in PSO 2605 following changes to the arrangements for publicly funding legal services in criminal proceedings.

Performance Standards

2. This PSI underpins the Legal Services and Bail Standard.

Output

3. The PSI sets out the arrangements from 2 October for public funding of legal services in criminal proceedings. It also alerts LSOs to changes in the timetable for implementation of the remaining parts of the Access to Justice Act 1999.

Impact and Resource Assessment

4. LSOs will need to be conversant with the new procedures, but they should not add to their duties. The changes will be covered in the training course for new LSOs.

Mandatory Action

5. Governing governors and Directors and Controllers of contracted out prisons must ensure that Legal Service Officers and other staff in the Legal Services Office are aware of this PSI and that the following amendments are made to all copies of PSO 2605 held in the prison:

(i) Remove existing Chapter 3 and insert the attached new one, but note that only paragraph 3.8 has changed.

(ii) Remove existing Chapter 5 and insert the attached new one.

(iii) Remove existing Contents page and insert the attached new one.

Audit and Monitoring

6. Arrangements for audit and monitoring remain as set out in paragraph 7 of the introduction to PSO 2605.

Contact Point

7. Contact points in Prisoner Administration Group are shown in paragraph 8 of the introduction to PSO 2605.

Ken Sutton Director of Regimes

CONTENTS

1 Introduction

1.1 Purpose and Scope of the Order 1.3 Prisoners’ general rights in connection with legal matters 1.7 Visits and Correspondence 1.8 Access to the Order

2 Legal Services Staff in the Prison

2.1 Action for LSOs 2.2 The need for the Legal Services Officer 2.4 Role and duties of the Legal Services Officer 2.8 Training of Legal Services Officers 2.10 Confidentiality of interviews with Legal Services Officers

3 The Access to Justice Act 1999

3.1 Action for LSOs 3.2 The provisions of the Act 3.3 Changes to the Legal Aid Scheme 3.6 Overview of the changes 3.7 Details of changes 3.8 Dates of implementation

4 The Community Legal Service (CLS)

4.1 Action for LSOs 4.2 Funding of civil and family cases 4.3 Services available from the CLS/how to obtain them 4.9 Transitional provisions 4.10 Duties of the Legal Services Officer 4.11 Forms for applying for legal services

5 The Criminal Defence Service (CDS)

5.1 Action for LSOs 5.2 Applying for public funding from 2 October 2000 5.9 Applying for public funding from 2 April 2001

6 Appeals - General Matters

6.1 Action for LSOs 6.2 Duties of the Legal Services Officer 6.7 The Right to Appeal 6.10 Applications for a writ of habeas corpus 6.11 Attendance of appellant at hearings 6.13 Productions at the Court of Appeal, Criminal Division 6.20 Appeals against recommendations for deportation 6.22 Appeals against conviction/sentence to life imprisonment 6.23 Courts Martial

7 Changes to Civil Appeals

7.1 Action for LSOs 7.2 Permission to appeal 7.7 Second appeals 7.9 Time Limits for making an appeal 7.12 Routes of appeal 7.13 Miscellaneous

8 Changes to Criminal Appeals

8.1 Action for LSOs 8.2 New rights of appeal 8.4 Details of other changes 8.9 Time Limits for appeals

Annex A Umoh: The judgment of the Court of Appeal Annex B Addresses of Community Legal Service offices Annex C Community Legal Service funding CHAPTER THREE : THE ACCESS TO JUSTICE ACT 1999

Action for LSOs

3.1 All LSOs must be aware of relevant provisions of The Access to Justice Act 1999 (The Act) and ensure that the assistance given to prisoners is in accordance with that Act where that Act is applicable.

The provisions of The Act

3.2. The Access to Justice Act 1999 makes a number of reforms to the justice system which aim to make the system clear, fairer, better and available to all. These include wide-ranging changes to the provision of legal services (e.g. the Legal Aid Scheme), some changes to the routes for appeals and to the organisation of Magistrates’ Courts. This Order concentrates on the reforms that most affect Legal Services Officers’ work - principally legal aid and appeals.

Changes to the Legal Aid Scheme

3.3 The Legal Aid Act 1988 as it relates to England and Wales is now repealed apart from the parts that deal solely with criminal legal aid. The legal aid scheme as set out in the 1988 act remains in force for:

criminal cases

pre-existing civil cases (see paragraph 4.3.1)

3.4 Purpose of changes - Currently more money is being spent on legal aid each year, yet fewer people benefit. The reason for making changes to the legal aid scheme is to enable public funding to be effectively targeted on those who most need it through a network of quality assured legal advisers.

3.5 Management of the provision of legal services - The Legal Aid Board was replaced on 1 April 2000 by the Legal Services Commission (LSC) which has overall responsibility for managing the provision of legal services, including the budgets. Eventually, two bodies, the Community Legal Service (CLS) and the Criminal Defence Service (CDS) will have separate responsibility for planning provision and funding of legal services for civil and criminal matters respectively. The CDS has been set up in name only at present and although the CLS is in being, it will be responsible to the LSC. For the purpose of separating advice about civil and criminal funding in this PSO, however, the references are to the CLS and the CDS.

Overview of changes

3.6 The fundamental change is that eventually publicly funded legal services will all be available only from service providers (eg solicitors, advice agencies) who have a contract with either the CLS or the CDS. The CLS or CDS provides the contracted service provider with funding from which they provide the services. In this way funding is not be open-ended as now, although prisoners involved in criminal investigations or proceedings will have access to such advice etc as the interests of justice require.

Detail of changes

3.7 Details of how the changes affect public funding of legal proceedings and the implications for LSOs’ work are in chapters 4 and 5.

Dates of implementation

3.8 The Act comes into effect in phases. The provisions relating to public funding of legal services started generally from 1 April 2000, although some preliminary changes were effective from 1 January 2000. The following is the present timetable:

1 April 2000 - Legal Services Commission, incorporating Community Legal Service and Criminal Defence Service formed.

Legal representation in most civil cases available from contracted service providers only. Introduction of the funding code for civil cases takes place - see paragraph 4.2.5

2 October 2000 - Only firms of solicitors holding a crime category franchise can undertake new criminal legal aid work funded by the LSC see paragraph 5.4 for details)

2 April 2001 - remaining reforms to public funding for civil cases takes place

Only firms of solicitors holding a relevant contract with the LSC can undertake criminal work funded by them

2001 - 2004 - remaining reforms take place - e.g. use of salaried defenders, LSC to fund criminal cases in higher courts

3.9 Provisions about the appeals system effective from 2 May 2000 - see chapter seven. CHAPTER FIVE: THE CRIMINAL DEFENCE SERVICE (CDS)

Action for LSOs

5.1 Legal Services Officers must note the new arrangements for publicly funding legal services in criminal cases, which take effect in two stages, on 2 October 2000 and 2 April 2001.

5.2 The provisions of the Access to Justice Act 1999 that relate to funding of legal services for criminal proceedings do not come into effect until 2 April 2001, but some preliminary changes are being made from 2 October 2000.

Applying for public funding from 2 October 2000

5.3 From 2 October only firms of solicitors who have a crime franchise with the Legal Services Commission (LSC) or those who have passed a preliminary audit for a franchise will be able to carry out new criminal legal aid work funded by the Commission - but see paragraph 5.5. Non-franchised firms will, however, be able to continue and complete cases that started before October.

5.4 Criminal legal aid work will continue to be carried out under the Legal Aid Act 1988 until the relevant parts of the Access to Justice Act 1999 come into force in April 2001.

5.5 The Legal Services Commission will not immediately fund all criminal legal aid work. It will fund advice and assistance and ABWOR for all courts, Magistrates’ Court representation and duty solicitor schemes. It will not fund legal aid for proceedings in the Crown Court, the High Court or the Court of Appeal generally, although it will fund High Court proceedings such as judicial review, bail applications and applications for writs of Habeas Corpus (ie civil proceedings arising from criminal cases). Criminal legal aid work that is not funded by the LSC will continue to be funded as it is at present and applications can continue to be made to the Judge in court.

5.6 The majority of prisoners already have a solicitor when they arrive at the prison. If, however, they do not or they wish to change their solicitor, the LSO must assist them to do so. The prisoner must select a solicitor who holds a crime franchise if advice and assistance, ABWOR, representation in a Magistrates’ Court or legal aid for a judicial review application is required. If legal aid is required for any other reason, their choice is not restricted.

5.7 A current list of solicitors who hold a crime franchise is being sent separately. In cases of difficulty LSOs should seek assistance from their local Legal Services Commission office, details of which were given in the original PSO and updated in the first edition of “Bulletin” for LSOs, issued in July.

5.8 The form on which to apply for public funding for criminal cases depends on the source of the funding:

Legal Services Commission

CLAIM 10 for all advice and assistance CRIMAPP4 for ABWOR CRIMAPP1 and CRIMAPP2 for civil matters arising from criminal proceedings

(NB the versions of these forms issued to prisons in July 2000 should be used). It is envisaged, however, that the prisoner’s solicitor will complete these forms.

Lord Chancellor’s Department

This is for proceedings in the higher courts that are not funded by the LSC. The funding arrangements and method of application will not change on 2 October - ie applications can continue to be made to the Judge in the relevant court.

5.9 In considering applications for legal aid, the LSC or the court will consider whether the interests of justice require that public funding be granted. The prisoner will also have to satisfy a means test, the criteria for which at present remain the same as under the previous legal aid scheme.

Applying for public funding from 2 April 2001

5.10 A further amendment to PSO 2605 will be issued in due course giving details of changes that take effect on 2 April 2001.