Self-Represented Prisoners left behind in the justice system?
4th Mar 2016
“It is said that no one truly knows a nation until one has been inside its jails. A nation should not be judged by how it treats its highest citizens, but its lowest ones.” Nelson Mandela.
Prisoners are arguably one of the most disadvantaged groups in Australia (and the world). Little to no research has been conducted about the impact on prisoners who are also self-represented litigants (hereinafter referred to as ‘self-represented prisoners’) such as, the extent to which prisoners encounter difficulties in accessing justice while in prison, the impact on prisoners and the resolution of their legal problem, and what efforts, if any, are being made by different Corrective Services departments to facilitate better access to justice. Does this issue even rest with Corrective Services for rectification? Wherein do both this problem of being self-represented and solution lie?
It is the author’s view that self-represented prisoners are unfairly denied the ability to adequately participate in the justice system. The issues raised in this article are based on the author’s first-hand observations in NSW and QLD prisons and on her interactions with prisoners.
The purpose of this article is to provoke discussion and thought, and to bring this issue forward for a policy debate. The key players in this debate should include lawyers, Corrective Services, and human rights advocates.
This issue is being raised in criminal cases, particularly in bail applications. The NSW Court of Criminal Appeal case of Miles v R  NSW 88 dealt with an application for bail review. One of the applicant’s grounds of appeal is as an unrepresented litigant that special or exceptional circumstances existed. One of the applicant’s arguments was that the Department of Corrective Services was not providing reasonable facilities for the preparation of an appeal, in circumstances where Legal Aid had been refused. The applicant’s argument fits within the scope of this article; that self-represented prisoners encounter further and different difficulties compared with other self-represented litigants: clearly, that self-represented litigants are not a homogenous group.
In this case, Justice Hulme acknowledged that although this applicant did receive access to a legal library and cases, ‘it is by no means apparent that he has been provided with reasonable time and facilities.’ .
Justice Hoeben made a recommendation to the NSW Department of Corrective Services ‘[to] provide reasonable assistance and facilities to allow the applicant to prepare his appeal.’ .
Additionally, in this case Justice Hulme made a powerful comment about the inadequate provision in prisons under the hand of the NSW Department of Corrective Services for self-represented prisoners. “…[W]hat I have seen does tend to reinforce the impression I have derived in other cases that the Corrective Services Department do not provide what an outsider would regard as reasonable facilities for someone such as the applicant in the circumstances that he is in. . The Department must realise that if the only way that an accused person or appellant can prepare his case is by being granted liberty then that is the course which the court might have to take.” .
It is worth noting that the Department of Corrective Services is not bound by recommendations of the courts. The department has wide discretionary powers to implement decisions which arguably do not support the individual right of a prisoner to access justice because of competing factors such as ‘operationally viable’ considerations, or prisoner risk factors.
This special group suffers further disadvantage. This disadvantage includes: the inability for self-represented prisoners to ‘drop’ into community legal centres for the provision of free legal advice and assistance and to receive the benefit of a lawyer or paralegal to review self-drafted court documents; the inability of prisoners to access duty court lawyers (for procedural and legal advice), usually because prisoners only attend court via video-link; limited opportunities to seek free telephone legal advice due to the capping of telephone calls per day; and, in some Queensland prisons, the refusal to set a minimum number of legal calls per day (this is a discretionary decision left up to Corrective Services staff). This call-capping can mean that prisoners must choose between making a telephone call to family, or seeking telephone legal advice or assistance. This disadvantage is escalated for prisoners detained in solitary confinement. They can spend up to 22 hours in their cell per day, with no access to the prison library and computer labs, no face-to-face contact with other prisoners who can render writing and reading assistance, and an inability to use the phone freely like mainstream prisoners. These problems are further magnified by the fact that there are high rates of illiteracy within prison populations, and prisoners also frequently have limited education, intellectual learning disabilities, low self-esteem, and disenchantment. This arguably undermines and disempowers prisoners when navigating the legal system, their ability to understand their legal problem(s), and to adequately prepare evidence or represent themselves in court.
What seems to be lacking is an accountability framework for measuring the experiences of self-represented prisoners in accessing justice. As a country, are we locking prisoners up, and throwing away the ‘key’, the key to which every citizen ought to have access to? This is the key to justice, fairness, and a right to participate in the legal system fairly and equally.
Chrissy Leontios is the Principal Lawyer and Family Dispute Resolution Practitioner of the new firm, CLEON Legal & Mediation Services (Justice. Fairness. Equality). This firm was set up to address access to justice issues in Australia; it offers virtual services, with a focus on assisting self-represented persons, in family law matters (drafting Divorce Applications, Consent Orders, Initiating Applications), criminal matters (reviewing briefs of evidence, and assisting accused persons with writing submissions, bail applications, and other criminal matters), and prisoner ombudsman appeals. Additionally, this firm assists families going through family mediations, in person, via the telephone, and via video-link. Chrissy is involved in the academic development of the Graduate Diploma of Family Dispute Resolution Program; she researches and writes widely in this discipline. She is also a sessional tutor with James Cook University, and provides tutorial support in the Indigenous Tutorial Assistance Scheme. Chrissy also conducts Official Visitor Inspections in Townsville prisons. She has a fierce passion for prison accountability, and the fair and humane treatment of prisoners.
The views and opinions expressed in these articles are the authors' and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).