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Research Report: Taking justice into custody: the legal needs of prisoners
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Taking justice into custody: the legal needs of prisoners  ( 2008 )  Cite this report



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Chapter 1. Introduction


This report describes a study conducted by the Law and Justice Foundation of New South Wales (the Foundation) on the legal needs and access to justice of prisoners in New South Wales (NSW). This project is part of the Foundation's broader program of research into the legal needs of economically and socially disadvantaged people, and their access to justice. Prisoners were included in the Access to Justice and Legal Needs (A2JLN) research program in recognition of:
  • the concentration of disadvantage experienced in the prison population in terms of higher levels of mental illness, intellectual disability, histories of alcohol and other drug misuse, poverty, poor education, and unemployment than in the general NSW population
  • the existence of previously collected evidence that prisoners experience a unique range of barriers in meeting their legal needs because of the nature of the prison environment
  • the dearth of research on this topic.

Project aim

The aim of this research was to explore the capacity of prisoners to:

  • obtain legal information (for criminal, civil and family law matters)
  • obtain legal advice and representation (including basic legal advice, initial legal assistance and legal representation)
  • participate effectively in legal processes (including access to courts, tribunals, and prison disciplinary/administrative processes).

Included under these aims was an exploration of the ability of prisoners to obtain assistance with their legal issues from non-legal sources (including the NSW Department of Corrective Services (DCS) and other external organisations and agencies' staff) as previous research has demonstrated the important role such assistance plays in resolving legal issues (see, for example, Forell, McCarron & Schetzer, 2005). The investigation examined the above issues in relation to not only the prisoners' existing legal troubles, but other legal problems that may arise or be prevented during their incarceration.

Legal and administrative context

To place this study in context, there needs to be some assessment of whether accessing legal information, gaining legal representation and participating in legal processes for prisoners is incompatible with the function of imprisonment, as administered by the DCS. A discussion of the broader legal and administrative context of the project is given below, preceded by a brief background to relevant prison policy in NSW.

The Nagle Royal Commission

In 1978 the Report of the New South Wales Royal Commission into New South Wales Prisons was handed down by the Honourable Mr Justice Nagle. The Nagle Report (Nagle) exposed the excessive violence and brutality within NSW prisons at that time, and made 252 recommendations for substantial reform of the system. The closed and secretive administration of the system as it was then was also highlighted as an area of concern. The Nagle Report is a key reference as it signalled a new direction for the administration of corrections in NSW.

A fundamental premise of the report was that prisoners should be perceived as citizens — with the legal rights and protections of other citizens. On this basis, the report outlined five principles to guide future planning for Corrective Services. In summary, these principles were that the intervention of prison should be only used as a last resort, for the shortest possible time, at the lowest appropriate security classification, recognising that it is the deprivation of liberty itself, which is the penalty, not the harshness of the time served. Nagle also proposed that an 'inmate should only lose his liberty and such rights as expressly or by necessary implication result from that loss of liberty' (NSW Royal Commission into NSW Prisons (Nagle), 1978, pp. 53–55). In other words, within the constraints of their imprisonment and the law, prisoners should have the same 'access to justice' as other citizens.

Notably, Nagle not only commented on the need to alter the fundamental principles underlying correctional policy, but examined the capacity of the system at the time to apply these principles. He observed:

    The provision of a right to legal representation and assistance is meaningless if its exercise is frustrated or inhibited by inadequate facilities. (Nagle, 1978, p. 478)

Nagle not only focused on the policy context, but also examined the capacity of prisoners in practice to get the help they needed to address their legal issues. In terms of facilitating access to the law and lawyers, Nagle specifically recommended that:
    … legal visits should not be restricted in any way. Prisoners should be given unlimited access to bona fide legal representatives in conditions that permit private conversation and joint access to documents. (Nagle, 1978, p. 713)

    … Prisoners should have full access to legal advisers and the Courts. They must be able to initiate proper procedures speedily and in the length of time provided by the law. Provision should be made for legal aid. (Nagle, 1978, p. 722)

While there was considerable resistance from within the prison system, most of Nagle's 252 recommendations were implemented by the government (Vinson, 1982; Grabosky, 1989). These changes were commenced in the first years after the inquiry, by the newly appointed Corrective Services Commission, chaired by Dr Tony Vinson (Zdenkowski & Brown, 1982, pp. 86–90). Commentators described the new Commission as 'demonstrat[ing] profound concern for the rights of individual prisoners' (Grabosky, 1989).

Pertinent to this study was that in 1981, the Legal Aid Commission of New South Wales (Legal Aid NSW or Legal Aid) established a limited interim service to prisoners, providing representation at visiting justice hearings and an advice service in some jails. In 1986, the Prisoners Legal Service (PLS), a specialist service for prisoners within the criminal law division of Legal Aid was permanently established (Legal Aid NSW, 2006a pp. 9–10). The PLS continues to operate in NSW prisons.

The notion of 'prisoner as citizen' was not unique to the Nagle Report. Rather, it was part of and reflected a broader theoretical shift in the way that imprisonment was being understood (see Coyle, 2002, 2005). In short, the emphasis was shifting from imprisonment as the simple containment of offenders, to a focus of rehabilitating or resocialising offenders back into the community. The view of the prisoner as an 'imprisoned citizen' rather than as a person who had forfeited their citizenship was also reflected in the changing role of the prison officer. Lombardo (1981; 1989 pp. 2–6) described a shift in the role of prison officers from simple custodians to having a 'human service' role. Their formal and informal interactions with inmates were seen to contribute to the goals of imprisonment; both custodial and rehabilitative. The position description and applicant guide for correctional officers today reflect this change (NSW DCS, 2006a).

Subsequent inquiries

Since the Nagle Report, the NSW prison system has been subject to a number of other inquiries, most of which dealt primarily with broad policy concerns of the appropriateness and impact of imprisonment. Key reports from these inquiries which have covered issues relating to the legal or access to justice needs of prisoners include:

  • NSW Women in Prison Task Force report (1985)
  • Royal Commission into Aboriginal Deaths in Custody, Regional report of the Inquiry into New South Wales, Victoria and Tasmania (1991)
  • NSW Law Reform Commission (LRC), People with an Intellectual Disability and the Criminal Justice System [Report 80] (1996)
  • NSW Legislative Council Standing Committee on Social Issues, A Report into Children of Imprisoned Parents (1997)
  • NSW Legislative Council Standing Committee on Law and Justice, Crime Prevention through Social Support: Second Report (2000). Part three of the report focused on prisoner recidivism and return to the community
  • NSW Legislative Council, Select Committee Inquiry on the Increase in Prisoner Population (2001). This report explored aspects of the legal system which may be related to the increasing prison population, such as bail laws, policing practices, sentencing trends, and court delays
  • Audit Office of NSW, Performance Audit, Prisoner Rehabilitation, 2006a.

A recent report on interventions for prisoners returning to the community, commissioned by the Justice Branch of the Commonwealth Attorney-General's Department provides the most comprehensive and recent review of post-release issues facing prisoners in this country (Borzycki, 2005).

Overall, the number of inquiries into corrections in the last five years is indicative of the state of change both in correctional environments around Australia and in correctional practices. The Standard Guidelines for Corrections in Australia, jointly issued by the departments of each Australian state and territory responsible for corrective services, described these many changes as follows:

    Changes that (sic) have included: an exponential growth in prisoner numbers; the introduction of contracted correctional services to many jurisdictions; a re-appraisal of evidence-based programmes that address offending behaviour; an increased focus on 'throughcare' (sic); the introduction of services for victims; and an increased focus on prisoners and offenders making reparation for their crimes. (Standard Guidelines for Corrections in Australia, 2004, p. 2)

Thus, the present research has been undertaken in a context where the ground is shifting. As the statistics presented in Chapter 2 indicate, the prison population is increasing, causing strain on the operation of correctional centres. To house this increasing population, more prison are being built, with an increasing proportion of prisons being privately operated. The management of centres is also changing under The Way Forward policy currently being implemented in NSW. This policy changes staffing ratios and use of overtime to increase cost-efficiency (NSW DCS, 2006b, p. 25).1 These changes in turn may affect inmates' access to justice. Also evident is an increasing policy focus on 'Throughcare'2 services for inmates, with a view to reducing re-offending by addressing the needs of prisoners as they move through the system and back into the community, post-release. While post-release support has been a concern in NSW since the 1950s (North, 1976),3 this focus on reducing re-offending forms the basis of the current policy position.

Current policy position

The stated mission of DCS, as set out in their 2004–2007 Corporate Plan, is 'reducing re-offending through secure, safe and humane management of offenders (NSW DCS, 2004b, p. 1). The values and principles outlined in the plan, which guide Corrective Services in NSW include (inter alia):

  • commitment to the safety and welfare of offenders supervised in custody and/or in the community
  • commitment to rehabilitation and re-settlement of offenders. (NSW DCS, 2004b, p. 4)

Consequently, the current strategic objectives of DCS, to reduce re-offending by providing a safe and supportive environment both within and to some extent beyond the prison walls, formed the starting assumption for our investigations.

Preliminary investigation of the literature concerning prisoners suggested a relationship between legal need and re-incarceration. In particular, studies have identified the detrimental impact of accumulated legal and other social problems on the ability of a released prisoner to become re-established in the community and avoid offending (Borzycki, 2005; Baldry, McDonnell, Maplestone & Peeters, 2003; Aboriginal and Torres Strait Islander Social Justice Commissioner, 2002; Dutreix, 2000; Stringer, 1999). Problems cited include debt (including fines), housing and family matters such as child residency. Given this, the aims of the administration of prisons to maintain the welfare of prisoners when incarcerated and reduce their chance of re-offending once released may be negatively affected if legal matters are not attended to during incarceration. Therefore the role of prisons as broadly stated by DCS administration is compatible with facilitating prisoners' capacity to address their legal needs in prison.

More specifically, it appears that there is no barrier at law that precludes imprisoned people from securing legal advice and participating in legal processes. For example, Section 77 of the Crimes (Administration of Sentences) Act 1999 (NSW) provides that inmates may attend courts (including Children's, Federal and Family courts) whilst incarcerated. Further, while the right to legal representation for any person, including prisoners, is not enshrined in Australian law,4 the DCS Operations Procedures Manual for all prisons in NSW makes the following provision in relation to accessing legal resources:

  • Inmates may require access to legal resources for advice or instructions in matters, which may or may not, concern their detention and associated legal process.
  • Governors must ensure that inmates have access, and are not impeded in their attempts to gain access, to legal resources.
  • This may include their own legal representative, the Prisoner's Legal Service, Chamber Magistrates and other Court officers.
  • All governors are to ensure all inmates have access to the latest versions of the Crimes (Sentencing Procedure) Act 1999 and the Crimes (Sentencing Procedure) Regulation 2000; the Crimes (Administration of Sentences) Act 1999 and the Crimes (Administration of Sentences) Regulation 2001, and the Department's Operations Procedures Manual complete with amendments. These are to be maintained at the correctional centre's library, or in a designated location accessible to inmates. (NSW DCS, 2006c, s. 8.7)

In summary, access to legal advice and legal processes is not denied to the prisoner at law. Moreover, the administering government department commits to supporting prisoners' access to legal resources. This project consequently investigated the prisoners' legal needs and their capacity to access justice from the starting point that, at law, their access to legal assistance is preserved and should not be unduly compromised by their incarcerated state. However, it is clear that, by its very nature, incarceration presents a very real and literal barrier. Consequently, the actual experience of prisoners in accessing legal assistance and advice, and participating in legal processes whilst incarcerated, remains in question and forms the basis of this study. This project attempted to examine whether prisoners and services providing and facilitating access to justice within this framework successfully negotiate the unique challenges posed by imprisonment.

Scope

Target group

One of the first issues that needed to be defined was the target group of our project. Broadly speaking, the term 'prisoners' could include people who have been arrested and are in police custody, people in jail or juvenile detention, and people who are detained by the Department of Immigration and Citizenship (DIAC). While all of these groups may face access to justice issues, the focus of our study was on prisoners whose 'confinement was the responsibility of a corrective services agency'. That is, people who were held in full-time custody in a NSW correctional centre.Periodic detainees and those on home detention were excluded from the project. However, offenders in police/court cell complexes managed by DCS are included.5 The sample was further restricted to adults as the Juvenile Justice System (covering people aged younger than 18 years) is sufficiently different to the adult system to warrant separate investigation.

However, to fully appreciate legal need in this context, we have also drawn upon the experience of people recently released from jail. Their experiences remain pertinent to the legal needs of serving inmates for several reasons:

  • the impact of legal problems which arose prior to or during incarceration may well not be felt until a person leaves custody
  • people who are no longer in the jail environment can provide a different perspective on their experiences in jail
  • we have conceptualised incarceration as a process– from arrest, through imprisonment (on remand, and/or as a sentenced prisoner) to release, whether conditional or unconditional. To understand the legal needs and access to justice issues facing prisoners, the whole process must be considered
  • a history of incarceration may directly affect the legal needs of people recently released from jail and their capacity to access justice.

For these reasons, while the primary focus of the project was on prisoners, we also interviewed ex-prisoners and report some data on the legal issues and access to justice issues facing people recently released from jail.

'Access to justice'

    I'd like more access to justice but less access to the courts
    — Respondent in Genn (1999, p. 1)

The term 'access to justice' may be taken to refer to the removal of practical barriers to the law and legal processes (e.g. physical access, costs, complexity,) or more broadly, to a rethink of the role of law in contemporary society (Renouf, 2003). In this study, like previous projects conducted within the Access to Justice and Legal Needs (A2JLN) research program, the term has been drawn at a fairly structural level. We have considered 'access to justice' in terms of the range of personal, systemic and cultural factors (and the interplay between these factors) which may impair or facilitate the capacity of prisoners to access and use legal information and advice. Given the very literal barriers presented by incarceration, we have also included access to formal legal representation, courts and tribunals, and the effectiveness of that access.

While we recognise that 'access to justice' can be construed more broadly than this, we have not, in this study, analysed broader notions of 'rights' or 'justice', beyond what the law currently states. Rather, the project has endeavoured to investigate issues of access to justice according to the law as it stands. However, the legal landscape for prisoners differs in some ways from that of other citizens. There are some laws and regulations that apply only to prisoners (such as the law and regulations surrounding parole or behaviour in prison). There are other laws which specifically exclude prisoners or certain prisoners from particular privileges or 'rights' held by other citizens (such as the right to vote in an election). These are described in Appendix 1.

Legal needs

In order to appreciate the access to justice issues that prisoners experience, we first had to establish what types of legal problems are faced by prisoners, or are likely to develop during the course of, or as a result of imprisonment. We have explored criminal, civil and family law issues facing inmates, as well as the circumstances associated with those problems developing. In terms of assistance with legal problems, we have looked at help provided by legally trained professionals, as well as the assistance provided by non-legal advocacy and support agencies/personnel, both within and outside the jail system, to resolve or prevent legal problems.

In addition to the above, in our examination of prisoners' ability to access justice we have analysed both the capacity of inmates to access 'end product' events such as legal advice or court attendance, as well as the intermediary steps that lead to those events. This includes, for example, the ability to obtain information about how to contact a lawyer from prison or how to get to visit the prison library. These intermediary steps, as will be shown in subsequent chapters, are especially important in the prison environment and have assumed a prominent role in our discussion of access to justice. Accordingly, 'access' to justice has been treated more broadly than just physical access to legal information, advice, representation, or legal processes. It has been taken to include the efficacy of that access, for example the quality of a prisoner's interaction with their lawyer.

Report structure

This report is divided into three main parts: background, results and analytic chapters. The first part provides the broader context to the study and includes a description of prisons and prisoners in NSW along with a review of the literature on prisoners and their legal needs (Chapter 2). This part also includes the method used to collect the data for this analysis in addition to a description of the inmate sample (Chapter 3). The second part reports on the raw results of the study, specifically: the legal issues reported by interviewees in the sample (Chapter 4) and the opportunities and barriers to access justice described by the interviewees (Chapter 5). The third part of the report contains the analysis and discussion chapters. Four analytic chapters (Chapters 6–9) examine the factors underlying the barriers described in Chapter 5. The discussion and policy implications chapter (Chapter 10) also includes the conclusion.



The Way Forward is described by the DCS Commissioner as a new model for operating correctional centres designed to achieve safe and effective management and substantially improve operational cost efficiency. It involves a new custodial rank structure, a more efficient staffing policy based on the principle of having inmates engaged in structured activities, increased opportunities for inmates to be engaged in employment or programs and a new staff award including flat overtime rates and no overtime rates for management. NSW DCS, 2004a, pp. 6.7
Throughcare refers to the coordinated and integrated approach to reducing re-offending by people who are the responsibility of Corrective Services, from their first point of contact with the Department to the completion of their legal orders and their transition to law-abiding community living. (NSW DCS, 2002, p. 3)
In 1951, Civil Rehabilitation Committees were established in city and rural areas to assist released inmates to make the transition back to the community. Funded by government, the committees comprised of welfare organisations, churches, individuals, the probation and parole service and, eventually, other government services (e.g. the Department of Labour). The committees aimed to provide material and practical support and guidance to released prisoners and their families. They also aimed to `work for better community understanding in the problems associated with the rehabilitation of prisoners`. (North, 1976, p. 183). The committees became the forerunner of the Community Restorative Centre (CRC), which was set up as a non-government agency in 1963. CRC still provides services to those recently released from prison (see http://www.crcnsw.org.au).
The High Court inDietrich v R (1992) 109 ALR 385 stated that an indigent accused charged with a serious criminal offence has no right to legal representation at public expense, but does have the right to a fair trial. Hence, if a person charged with a serious criminal offence is without legal representation, and the subsequent trial is for that reason unfair, any conviction represents a miscarriage of justice and must be quashed by an appellate court.
Parts of this report concerns inmates time in police cells. While some police cell facilities are under the authority of the police alone, other cells located at police stations are designated and part of the DCS such as the holding cells at Surry Hills in Sydney.

 The Way Forward is described by the DCS Commissioner as a new model for operating correctional centres designed to achieve safe and effective management and substantially improve operational cost efficiency. It involves a new custodial rank structure, a more efficient staffing policy based on the principle of having inmates engaged in structured activities, increased opportunities for inmates to be engaged in employment or programs and a new staff award including flat overtime rates and no overtime rates for management. NSW DCS, 2004a, pp. 6.7
 Throughcare refers to the coordinated and integrated approach to reducing re-offending by people who are the responsibility of Corrective Services, from their first point of contact with the Department to the completion of their legal orders and their transition to law-abiding community living. (NSW DCS, 2002, p. 3)
 In 1951, Civil Rehabilitation Committees were established in city and rural areas to assist released inmates to make the transition back to the community. Funded by government, the committees comprised of welfare organisations, churches, individuals, the probation and parole service and, eventually, other government services (e.g. the Department of Labour). The committees aimed to provide material and practical support and guidance to released prisoners and their families. They also aimed to `work for better community understanding in the problems associated with the rehabilitation of prisoners`. (North, 1976, p. 183). The committees became the forerunner of the Community Restorative Centre (CRC), which was set up as a non-government agency in 1963. CRC still provides services to those recently released from prison (see http://www.crcnsw.org.au).
 The High Court inDietrich v R (1992) 109 ALR 385 stated that an indigent accused charged with a serious criminal offence has no right to legal representation at public expense, but does have the right to a fair trial. Hence, if a person charged with a serious criminal offence is without legal representation, and the subsequent trial is for that reason unfair, any conviction represents a miscarriage of justice and must be quashed by an appellate court.
 Parts of this report concerns inmates time in police cells. While some police cell facilities are under the authority of the police alone, other cells located at police stations are designated and part of the DCS such as the holding cells at Surry Hills in Sydney.


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Grunseit, A, Forell, S & McCarron, E 2008, Taking justice into custody: the legal needs of prisoners, Law and Justice Foundation of NSW, Sydney