I have spent years making out-of-hours applications with mixed success. The criteria for making applications are highly restrictive, and the consequences of being perceived to have made them overzealously, or prematurely, are serious. Success would be less mixed if I too was more restrictive in my approach. As a prison lawyer, however, representing people in an environment where life expectancy is 56, self-harm is rife, and racism and abuses of authority flourish – urgency is no illusion. As fiduciaries for those we represent, with an ethical obligation to protect their interests, we cannot mimic others’ gaslighting and trivialisation, when it comes to their needs. I could not do that, quite simply, as a human being. I have not been trained to recognise urgent needs as such; much of my understanding comes from learning outside of the law, including from my clients. The needs of people enmeshed in the carceral system – which includes border and other regimes outside of prisons – are indeed urgent.
In Davis, R (on the application of) v Secretary of State for Justice [2020] EWHC 978 (Admin), for example, our client was an elderly Black man who was terminally ill. His racialised background was concealed in the Divisional Court’s final judgment, despite arguments we had made as to the increased urgency of his need – which was to be released compassionately from prison. The dangers he faced as an immunocompromised Black man on the prison estate went completely without mention in the judgment. We repeatedly invited the defendant to commission expert input from a range of people specialising in analysing this very issue. They proactively avoided that invitation, and instead Treasury Counsel sneered at the expert evidence we were able to obtain, on the basis that they had a history of arguing against imprisonment (we resisted the urge to point out that Treasury counsel had a history of arguing in its favour).
In that judgment the claimant’s team was reprimanded for bringing the claim. A specific sanction available to the court was applied, requiring us to make an application to the court directly, before bringing a further claim arising substantially out of the same facts. The court held that we had overstated the state’s duties to protect life, and to protect against degrading treatment. Those acting for the authorities claimed, in documents submitted to the court, that all was in hand, and the dangers claimed did not exist. It would follow – for those predisposed to official constructions, and those who defer to them – that what we felt were our abilities to recognise urgent need were in fact not abilities at all. Did we need training on identifying and addressing urgent need?
In the months that followed, the defendant continued to hold our terminally ill client captive, and his condition – to state the obvious – worsened. Despite the potential consequences, we prepared to apply to the court to make a further claim. The authorities released our client as soon as they knew we were ready to make that application. The sparsely populated county in which the prison was based became the worst affected county in the country by Covid-19. The prison was the sole cause for this. Prison deaths nationwide from Covid-19 were (at least) treble those seen in the community. We were accordingly vindicated in our sense of urgency. We had not been overzealous, or overstated our claim.
The question then becomes whether or not lawyers can withstand official hostility to protecting clients’ and communities’ urgent needs, rather than whether or not they can be trained to meet those needs. This is repeatedly evidenced in ministerial statements foreseeably inviting death threats to lawyers acting for migrants. Lawyers have been attending police stations amongst other places for decades, at all hours. They know their clients’ needs better than most. That is not to say that they cannot learn from others how to improve their understanding of those needs, but this is not work that should be dabbled in. Euphemisms such as ‘secondary specialisations’ risk being seen as endorsing hobbies for lawyers practicing in more lucrative areas, hobbies pursued at the expense of those with the greatest need. The same goes for ‘investing in increasing supervisory capacity’. It is a slippery slope to endorse these notions, as policymakers have been only too keen to paint woefully inferior services as viable alternatives. In Kafka’s the Trial, after describing the oppressive conditions designed into court buildings, the narrator makes it clear why specialism is discouraged:
“Complaints to the management don’t have the slightest effect, but the lawyers are strictly forbidden to alter anything in the room at their own expense. But even treating the lawyers in this way has its reasons. They want, as far as possible, to prevent any kind of defence…”.
By Kush Sood