Taking justice into custody: the legal needs of prisoners ( 2008 ) Cite this report
As already discussed in the introduction to this report, the ability to access justice among prisoners as it is being examined by this report not only includes 'end product' events such as an advice session, a court appearance, or obtaining a piece of legal information, but also the steps in the process leading to those 'end products', such as being able to obtain the requisite form, making an appointment, getting access to a library, or just getting some assistance to know what will be the next step in a process. Indeed, it appears many of the difficulties inmates have in servicing their legal needs occur within these intermediary steps.
The purpose of this chapter is to summarise the barriers encountered by prisoners in the context of the steps they need to take from prison in order to access legal information, advice, and representation and to participate in legal processes.. This will then form the background to the subsequent four chapters, which describe in detail the circumstances that generate, maintain or ameliorate the problems inmates have with addressing their legal needs, supported by quotes from our interviewees.
In this report, 'legal information'31 refers to the information found in legal text books, case law and legislation. It also covers plain language legal information32 including material produced by DCS where it contains some legal information (e.g. the Inmate Handbook contains contact details for Legal Aid NSW and the ALS) and brochures/ cards/posters produced by legal services for distribution. Information may be about specific laws, legal problems or legal processes, or about where to get legal advice or representation for criminal, civil and family law matters. Accordingly, legal information in this context refers to specially produced legal information materials not given verbally. Information given by non-legally trained people are considered intermediary steps to legal advice and information and as such are discussed as they arise, but is not considered in this context as legal information.
Legal information in prison
Among the inmates and ex-inmates interviewed for this study, legal information was sought for a range of reasons: in order to progress a legal matter such as a bail application or an appeal; or, to participate in the running of their criminal matter by drawing on materials such as specific legislation and case law. Inmates also sought legal information to gauge what to expect at a sentencing, to judge the fairness of their sentence, or to gauge the perceived competence of their lawyer. Further, although the topics mentioned by interviewees revolved predominantly around criminal matters, inmates also sought legal information on family matters (child custody and divorce), immigration and financial issues. It would appear from our interviews that the legal information sought not only helped inmates to understand their legal position but also afforded an autonomous perspective on the legal processes of which they were the subject. In this way, legal information provided an opportunity for inmates to more fully participate in legal processes as well as a means by which (in their view) they could assess the fairness of those processes.
Despite their real and sometimes urgent legal needs, people in prison are much more limited in how and where they can obtain legal information because they cannot actively seek it in the same way someone not in prison can (see Figure 1, p.32). Specifically, their range of choice of sources of information is narrower (for example, inmates cannot go to a public library or access the internet) and the opportunities to consult those sources they can access may be subject to strictures generated by other prison functions.
According to the inmates interviewed for this study, the major sources of written legal information for prisoners were the prison library, their legal advisers and DCS staff (for DCS-produced materials and written materials produced by legal service agencies such as brochures and posters). According to our interviewees, the success with which those sources yielded the required information varied. Issues associated with obtaining information from legal advisers are covered under 'Legal advice and representation' in the current chapter and from DCS staff under 'Professional intermediaries' in Chapter 8. However, it should be noted that the issues raised in those sections could also be applied to obtaining legal information.
All NSW correctional centres have at least one library (which can vary in size from a cupboard of books to a fully functional library), which may contain some legal information as well as recreational and other reading material. However the main law library is located at the Metropolitan Remand and Reception Centre (MRRC). Inmates not at MRRC may order articles from the law library via the loans service. They must complete a written request form detailing the information needed and then submit the form by fax to the MRRC law library. The librarian gathers the relevant material and sends it to the prisoner. In terms of holdings, all libraries are required to at least have copies of the DCS Operations Procedures Manual, an up-to-date copy of the Crimes (Administration of Sentences) Act and the Crimes (Administration of Sentences) Regulation; up-to-date copies of 'any other relevant legislation';33 and approved journals and reference books (NSW DCS, 2006c, s. 5.6). It should be noted that since our interviews DCS has funded plain language legal resources from the State Library's Legal Information Access Centre (LIAC) have been placed in all NSW jails. These are described in more detail in Chapter 7.
All inmates, including those on segregation, protection limited association, protection non-association and on special management area placement are supposed to be informed about the library services, and have the library or library services made available to them (NSW DCS, 2006c, s. 5.6). There is no access to the internet in any DCS correctional centre.
Problems/barriers to obtaining legal information in prison
Although a number of interviewees in this study were satisfied with the use they had made of the prison library services, other interviewees noted a number of difficulties in obtaining legal information from this source. These were:
Legal advice and representation
In this report, legal advice refers to a lawyer acting in their official capacity34 offering or providing a solution to an individual's legal problem. Legal advice can be given face to face, by telephone, AVL or in some cases, by mail. An example of legal advice is when a solicitor tells a client what his or her options are, after he or she has received a letter of demand to pay a debt.
Legal representation covers services provided by legal professionals that go beyond providing legal advice. These services may include drafting documents (e.g. wills and contracts) and representing a person in a legal matter (e.g. negotiating child residency and contact agreements). Legal representation also includes preparing documents for court appearances (e.g. statements of claim and affidavits), and representing people in court and tribunal processes.
As with any person facing court on a criminal charge, prisoners often seek to engage the services of a lawyer. A lawyer may be funded either publicly, for instance partly or fully by Legal Aid or the ALS, or privately, where the cost is borne solely by the individual, their friends or family. The majority of the prisoners and ex-prisoners interviewed for this study had, at some point, used a publicly funded solicitor.
Securing advice and/or representation from a lawyer is clearly not unique to people defending a charge who are also in prison. However, imprisonment means that it is likely that the process of accessing a lawyer and/or interacting with an advocate would differ from that which would occur out of prison. The following paragraphs describe the major means for obtaining legal advice and representation whilst a person is in prison. The information flows from our interviews and is confirmed by the relevant service providers.
Prisoners Legal Service (PLS)
As briefly mentioned earlier in the literature review, the PLS provides, in the main, representation to inmates at Parole Authority hearings, life sentence determinations, segregation appeals and visiting justice hearings. The PLS also coordinates a visiting legal advice clinic to prisons. In urban areas, the service is mainly staffed by PLS solicitors, while in rural areas the clinic uses lawyers from the regional offices of Legal Aid or private solicitors acting for the PLS. PLS solicitors do not represent inmates in court for matters relating to their criminal charge. While run by Legal Aid, the PLS functions as a separate service to the Legal Aid Duty Lawyer Scheme (which operates in most local courts), and to other Legal Aid services.
The PLS represent prisoners at parole board hearings who are either seeking parole or who have had their parole, home detention order or periodic detention order revoked. Prisoners can indicate on a form sent to them by the Parole Board whether they would like PLS, the ALS or a private lawyer to represent them at the hearing.
The PLS also coordinate an advice service to almost all of the prisons in NSW. The frequency with which the PLS is scheduled to hold the legal advice clinics varies from prison to prison, from weekly visits at the major remand centres to monthly visits at most country jails. Inmates book for an advice session with a PLS lawyer by asking their wing officer to put their name in a 'Legal Aid book' at the prison. On the day the legal advice clinic is run the inmate could be paged to the visits area to meet the attending lawyer. Appointments do not take place if the prison is in lockdown. Appointments usually run for approximately ten minutes and are in the form of 'minor assistance' (less than one hour's work). The advice usually concerns inmates' current criminal proceedings, but can also be about other legal problems. If the inmate requests assistance with something beyond the service's scope, the PLS will try and refer them on to another section of Legal Aid or a community legal centre (CLC).
Every inmate at a prison faces or has faced a criminal law issue. Not surprisingly, many of our inmate interviewees sought the assistance of the PLS visiting legal advice service and many of the concerns they and other interviewees raised pertained to this service. The issues raised by interviewees specifically in relation to the PLS visiting legal advice service included:
Legal representatives: Legal Aid, ALS and private solicitors
After arrest, police may allow inmates a telephone call to contact a lawyer. However, the process for obtaining representation from Legal Aid typically occurs when a person is arrested and they appear in court for their bail hearing. Unless they have secured a private solicitor, a defendant may see the Court Duty Solicitor35 (a service provided by Legal Aid) to represent them at their bail hearing at court. This may involve a short visit by the lawyer to the inmate as he or she is held in the cells at the court. They may also apply, through the Duty Solicitor, for a Legal Aid solicitor to represent them in their criminal matter. Alternatively, an inmate may make this application in the correctional centre through the PLS visiting legal advice service, or by calling Legal Aid themselves (see below 'Contacting legal representatives from prison'). After making an application for Legal Aid, if successful, an inmate will be appointed a Legal Aid solicitor who will contact the inmate by post. Alternatively, an inmate may find his or her own legal representative who may apply for a grant of Legal Aid. It is also possible for an unrepresented inmate to attend court for the hearing for their criminal matter and use the services of the Duty Solicitor at court for that day.
If an Aboriginal or Torres Strait Islander person comes into custody, police must, by law, contact the ALS on their behalf (Manager, Aboriginal Legal Service). The ALS has a dedicated 24-hour telephone custody notification service and once contacted, the ALS lawyer will give legal advice and will ask some basic questions about safety and family contacts (personal communication (email), Policy officer, ALS). At court, there may be an ALS lawyer who, on list days, can provide representation to Aboriginal people. The presence of an ALS solicitor will depend upon the business of the court (e.g., how busy the court is, the number of Aboriginal defendants appearing before that court) and resources. Aboriginal defendants can also approach the Legal Aid duty lawyers for assistance if no ALS lawyer is available. ALS lawyers and field staff36 regularly visit prisons and assist Aboriginal inmates whether they are ALS clients or not.
Inmates may also fund their own solicitor. It appeared that most inmates in our sample who chose to have private representation selected their solicitor through either previous contact with that lawyer, the recommendation from another solicitor they had contact with but who may not have had the expertise they require, recommendations from other inmates or by asking family or friends to find a lawyer. DCS staff may also give inmates access to a telephone book for this purpose, but according to our interviews with DCS staff, they do not give referrals other than to Legal Aid.
Problems/barriers to obtaining adequate legal advice and representation
Interviews for this study raised a number of general issues in relation to obtaining advice and/or representation from lawyers whilst in prison (problems concerning contacting lawyers are covered in the section immediately following):
The Legal Aid number (amongst others) is automatically programmed into the phone cards inmates use to make all their telephone calls and are free for all inmates.38 There is also the option for inmates to have up to three other lawyers' telephone numbers programmed into their telephone system account. Calls to these other numbers are charged to DCS if the inmate is unconvicted, however convicted inmates must pay for their legal calls. In order to have a lawyer's number entered onto their card, an inmate must submit the contact details for the lawyer to DCS and a DCS officer then calls the lawyer's office to validate the number as genuine and to confirm the lawyer is representing the inmate applying to have the number put on his or her card.
A separate form must be completed to place money onto the telephone account. This process may take a few days or even a couple of weeks and must be repeated should the inmate move to another correctional centre. Women receive 15 minutes for legal calls whereas men have ten minutes. Welfare can also facilitate telephone calls from their office (NSW DCS, 2006c, s. 3.2.11) an option often used by inmates in the interim period before their numbers are programmed into their card.
An inmate is entitled to a visit by their legal practitioner in addition to their personal (family/friends) visits. Most prisons have a separate area with designated 'legal visits rooms' for legal visits and have set hours (generally seven days a week) during which legal visits may occur. The legal practitioner must hold a current practicing certificate and hold a current valid identification card, issued by the governing body of their profession, which must be shown on entry to a prison. Legal practitioners are given priority over non-legal visitors during the week when being processed for visits (NSW DCS, 2006c, s. 15.11). After a lawyer has been processed at the prison gate, the inmate is paged over the intercom or escorted to the legal visits area by an officer. An in-person legal visit may also take place in the holding cells under the court before or after an inmate appears in court.
Lawyers who have access to AVL may also make a request 48 hours ahead to see their client via AVL. Generally, it is Legal Aid lawyers who have access to this facility.
Inmates may also correspond by post with their lawyers. Letters from lawyers are required to be stamped 'legal mail' to maintain legal privilege. All other letters and parcels are opened and inspected when considered necessary. Inmates have to meet the cost of sending their post, including legal mail, although inmates without money may send two letters a week at departmental cost (NSW DCS, 2006c, s. 3.1).
Problems/barriers experienced contacting a lawyer from prison
Difficulties with contacting a legal representative whilst in prison was a common theme in our interviews with stakeholders and inmate interviewees. Many interviewees felt that making contact with legal representatives was problematic, irrespective of the method used. The problems cited by our interviewees in relation to contact with legal representatives were:
In this report, participation in legal processes extends from the time an inmate first engages with the official process of a court, tribunal or government agency, to the point of legal resolution (if there is one). Activities covered may include: going to court for a criminal matter; commencing a legal action to recover a debt (or being subject to an action); participating in conciliation for a family law property dispute; appealing a Centrelink decision to the Social Security Appeals Tribunal (SSAT); or appealing a fine in writing to the SDRO. A person may actively participate (e.g. when they are an appellant in a criminal appeal or the applicant to a divorce) or they may be the subject of a legal action against them (e.g. being a defendant in a criminal matter).
The legal process originates at different points depending on the nature of the matter. For example, the legal process begins at the time of arrest for a criminal matter; when a person lodges an application for a family law matter; or when a person sends off a written appeal to the SDRO concerning an unpaid fine. The legal process then extends to the point of resolution (e.g. when a person is sentenced in a criminal matter, when a judge hands down his or her decision in a civil or family matter or when an inmate receives a letter back from the SDRO informing them of its decision). A legal process does not include informal inquiries made to authorities about a legal process or the activities leading up to the lodgement of a form, however, these actions may form the preparatory steps that make participating in a legal process possible and are consequently part of this analysis.
The following discussion on opportunities and barriers for prisoners to participate in legal processes is divided into three parts: the initiation of legal processes; preparation for legal processes; and, participation in a hearing or legal transaction. Note that among our inmate sample, by definition all were involved in participating in a hearing as defendants in their criminal matters. However, in many cases, civil and family matters had only reached the initiation and preparation stages.
Initiation of legal processes
In order for a prisoner to participate effectively in a legal process he or she needs to be aware the process exists, know what he or she must do to become part of that process and/or signal that intention to the relevant authority. Barriers to inmates' effective participation in this initial phase of the legal process raised in our interviews include:
It also became clear from the interviews that in the situation where a process was initiated, preparation for the resolution of a legal problem may also be undermined or at least constrained by being in prison. Preparatory activities include reading briefs of evidence for criminal matters, making inquiries about the status of a matter/application, or completing courses to establish eligibility for parole. Problems reported by interviewees with respect to preparing for legal processes were:
The final stage in participating in a legal process (apart from experiencing the outcome of a decision) is the hearing or conduct of the legal transaction. This may be where the case for a complaint or restitution is argued and a resolution is negotiated/handed down. Examples include court attendance, signing contracts and parole hearings.
For inmates in this study, a major part of participating in legal processes involved attending court. According to our interview with a custodial officer at an urban prison, when an inmate is required to go to court, the court issues a warrant for them to appear on a particular day. Court warrant files are kept in the general office at the prison on the DCS Offender Integrated Management System (OIMS). Each day a court list is generated for the following day. The warrant should stipulate whether the inmate is to appear via AVL or in person. A prisoner must physically appear before the court for certain relevant criminal proceedings, such as a committal proceeding, fitness to stand trial proceeding, any trial or hearing of charges, any sentencing hearing (including a redetermination of sentence), any hearing of an appeal arising out of a trial or hearing or a person's first appearance before a court in relation to an offence (section 5BB of the 1998 (NSW)).
The process for transporting inmates to court was uniformly described by inmates and staff from all prisons. On the day of court, officers wake inmates at approximately 5.30 am and escort them to the prison's reception area where they are given their civilian clothes. Travel to court requires being transported on a truck to the court with other inmates from their own jail and, more than likely, a number of other prisons. Inmates are then held in court cells located within the court complex and are then returned to their prison mid to late evening the same day.
Increasingly, AVL is being used in place of an inmate attending certain hearings in person. In most parole hearings an inmate appears via AVL, however, the prisoner can make an application to appear in person. AVL is routinely used for preliminary criminal proceedings including bail applications, proceedings relating to the prisoners' remand, interlocutory proceedings and any arraignment on a day other than the day appointed for the trial. If AVL facilities are not available at the prison in which the inmate is usually housed, they may be transported to the nearest correctional facility that has AVL available. In the courtroom, there are a number of cameras, one on the judge, one on the lawyer and one on the public gallery (for family). In the AVL booth at the prison, the inmate sits before a number of television screens showing the different views of the courtroom. There is a telephone in the booth that the inmate can use to speak directly to their lawyer during the matter. During these calls, the AVL sound is automatically muted in the courtroom so that the lawyer and the inmate may communicate confidentially. There are also additional studios in the court building so that lawyers can speak to their client before or even after the hearing.
Inmates may also participate in 'legal transactions'. A legal transaction is an exchange or agreement undertaken according to law, such as the signing of a lease or contract. While a transaction may not be strictly a legal process, as defined above, it is a transaction that is legally binding and has legal implications. Inmates may wish to conduct legal transactions in order to be eligible for parole, or make financial arrangements for bail or business transactions.
Problems identified by interviewees with this final phase of participation in a legal process were:
Although the opportunities for obtaining legal information and representation and to participate in legal processes are technically available to prisoners, there is evidence from our interviewees that some of the consequences of imprisonment can lead to these opportunities being missed or compromised. For example, although there are prison libraries not all prisoners can access them; although lawyers visit prisons to provide advice inmates do not have long enough to receive satisfactory assistance; and, although hearings may be attended, inmates may not understand what has transpired.
What underlies barriers to inmates' access to justice? The previous section described mechanisms that aid inmates to address their legal needs and the barriers that inmates encountered in using them. However, it is not sufficient to simply say that certain opportunities for addressing such legal needs had failed to occur, or had occurred in an unsatisfactory way. Rather, we need to investigate where the points of weakness occur in prisoners' pursuit of justice as prisoners, and further explore how they come to be weakened. From such an analysis it will then be possible to propose how the pathways through which prisoners address their legal needs may be strengthened. The following four chapters will analyse in depth the factors that appear to underlie the barriers to inmates addressing their legal needs and accessing justice identified in the current chapter. Briefly, the discussion will analyse the role of: