Opportunities and barriers to access justice
|It’s difficult enough for somebody that’s educated, confident [and] forceful to get what he wants through the system. If you’re young, Aboriginal, uneducated and you’re not used to talking to people in authority, you’re starting [at] a disadvantage there. You’ve got no money and you have to depend on the public purse to get your lawyer.
— Custodial manager
Interviews with inmates, ex-inmates and the people who assist them, indicated that technically, there are opportunities for prisoners to obtain legal information, advice and representation and to participate in legal processes. Visiting legal advice services, prison libraries, prison staff and independent organisations, as well as telephone access, do much to facilitate the access that prisoners have to legal assistance. However, the interplay of the prison environment, inmates’ own personal capacity, the pathways through which inmates can access help, and prison culture, all mean that in many instances, those opportunities are missed or somehow compromised.
Obtaining legal information in prison
Our interviews indicate that prisoners obtained information about legal issues from a range of sources, including the prison library, welfare staff, other inmates, the visiting legal advice service, and from their own lawyers. Specific barriers that were identified in relation to inmates’ access to legal information and advice included:
Legal advice and representation in prison
- lack of information about a service or process (e.g. how to request information from the library; how to secure legal representation and how to book an appointment with the visiting legal advice service)
- the quality and currency of legal information (e.g. incomplete or out-of-date legal resources in libraries and wrong advice or information from workers, friends or other inmates)
- the length of time it takes to get legal information or advice (e.g. to make a request from a law library if there is no direct access and lawyers not being able to return telephone calls)
- restricted access to legal information due to lockdown, classification or placement on protection/segregation (e.g. inability to physically access the library)
- the requirements and/or limitations of the process of obtaining information compared to the inmates’ capacity (e.g. the need for prisoners with poor literacy to complete forms to request help; the provision of written information to prisoners with poor literacy; and, advice sessions being too short, particularly given the cognitive capacity of some inmates).
Opportunities to engage and consult with a lawyer are available to inmates whilst in prison. Legal Aid’s Prisoners Legal Service (PLS), for example, provides a visiting legal advice service to NSW prisons on a regular basis. Legal numbers are included on prisoners’ phone cards and the number for LawAccess is automatically programmed in. Legal advice visits are catered for with designated areas and times for such visits to take place. However, despite these facilities, interviewees in the current study reported problems for inmates in securing and interacting with legal professionals. Problems included:
Effective participation in legal processes
- inmates not being able to identify the correct process to secure legal advice
- access to the PLS being undermined by: lack of information about the service in some prisons; the service being over-subscribed; legal advice sessions in jails not taking place or being too brief; the range of advice offered being dependent upon the speciality of the attending lawyer; and the inmates’ failure to attend scheduled appointments
- inmates’ communication with their lawyers being compromised by: the limited availability of telephones; no facility for lawyers to return calls; delays in getting lawyers’ telephone numbers onto phone cards; the expense of the telephone calls if the inmate is moved to a prison away from the lawyer’s location (e.g. to a rural prison when the lawyer is in Sydney)
- inmates not getting to see a lawyer before attending court or be confident a lawyer will be present when they attend court
- legal visits in court cells being too brief and not always confidential
- quality/utility of the advice session being compromised by the inmate’s mental and emotional capacity, the complexity of information provided, and the (perceived) assumptions by the lawyer about the inmate and inmates in general.
To participate effectively in a legal process a prisoner needs to be aware the process exists, know what to do to become part of that process and be able to signal that intention to the relevant authority. Again, procedures are in place to facilitate inmate participation in law processes, especially criminal law processes. However, during our interviews, we unearthed a number of barriers to inmates commencing and participating in criminal and civil legal processes. These included:
- limiting beliefs held by inmates (e.g. the perception that a legal process would have negative consequences or would not yield a satisfactory/fair outcome; inmates pleading guilty or choosing not to attend court for fear of leaving their current prison and losing their “place” and privileges, and the humiliation of being transported to court in a truck)
- lack of understanding about what transpired in a hearing or a misunderstanding about the outcome or obligations of a legal process (e.g. an inmate leaving court without understanding the sentence or the consequences of any conditions to which they agreed)
- lack of information about possible legal remedies and how to initiate and participate in a legal process when in prison, and about the progress of their own matter (e.g. court dates and which lawyer would be attending)
- inefficiencies in the process (e.g. inmates seeking assistance for the same legal problem from several different staff members and inmates needing to rely on other people to initiate or progress a legal process and this assistance not being forthcoming)
- lack of confidentiality (e.g. keeping sensitive briefs of evidence or other information in cells and conferring with counsel while in court cells)
- insufficient time/facilities to prepare cases (e.g. briefs of evidence being held up in the mail system; inmates not getting enough information about how their case is to be run; and, limited facilities to read briefs of evidence)
- lack of direct access by telephone to government departments
- restrictions on legal transactions inmates are allowed to make because they are inmates.
Particular issues were raised in relation to appearing in court by Audio Visual Link (AVL), including the perceived impact of appearing by AVL in prison uniform rather than civilian clothes, and the greater difficulties for inmates with cognitive impairment to follow proceedings by AVL.
Consequently, while there are opportunities for prisoners to access justice, there are situations where these opportunities break down. Our analysis shows that there are a number of factors which contribute to the breakdown of opportunities for inmates to access justice. These are analysed and discussed under four themes:
- the personal capacity of prisoners (prisoner capacity)
- the manner in which the various components of the justice and administrative system (prison, courts, advocates, authorities, etc.) operate and interact (systemic environment)
- features of the pathways and intermediaries inmates utilise to address a legal need (pathways and intermediaries)
- the role of culture operative in the prisons sampled in shaping inmates’ legal needs and responses to those needs (prison subculture).