|
|
Home
| Databases
| WorldLII
| Search
| Feedback
New Zealand Law Foundation Research Reports |
Last Updated: 3 April 2021
Evaluation of the Prison Advice Service, Canterbury
Carried out by
Justice Innovation Centre Christchurch
Acknowledgements
With thanks to the Law Foundation and the Borrin Foundation for funding this evaluation, and for their continued interest in supporting legal research.
We would like to thank also the board of Community Law Canterbury, the manager, Paul O’Neill and the various stakeholders that we interviewed. Nga mihi nui.
Grateful thanks also to Chris Littlewood, who supported the research throughout, and the UC law student interns: Cathy Harlow, Tavia Moore, Karena McGillivray- Seaton and Olivia Withers.
Liz Gordon Jeremy Finn
December 2019
Contents
Executive summary
attitudes. Issues such as mental illness and disability can also prevent resolution of internal and civil claims.
Recommendations
Introduction
The Prison Information Service (PIS) (now PAS, see below) began as an initiative of the Howard League for Penal Reform in Canterbury (HL), supported by Community Law Canterbury (CLC), in a pilot project in 2012. The service arose because the HL regularly received letters from people in prison asking for help with a range of issues. In line with the goals of both organisations, the purpose of the project was to give access to justice for prisoners, who were seen to be underserved in non-criminal and welfare advice, support and advocacy.
In practice, the advocacy end of the scale has always been served by the HL, while CLC has been most active in the legal information and advice side of the project.
This division of labour has meant that both agencies believe they work to their strengths in the programme.
From 2013, the service has operated in all three Canterbury prisons, and more recently in the youth prison. The co-ordinator now is a lawyer employed by CLC, and all of the other programme providers are volunteers, mainly students studying law at the University of Canterbury.
In 2019, there has been a change in the service model towards a more managed process. The service has been renamed the Prison Advice Service to reflect a shift in its approach and process.
This evaluation is a first attempt to assess the usefulness and effectiveness of the service model. It has been funded by the New Zealand Law Foundation and the Borrin Foundation. The key research questions are:
The methodology chosen for this study included three main elements: case analysis (a ‘stocktake’) of files held by the Prison Information Service, interviews with
stakeholders and a sweep of the international literature searching for similar services in other jurisdictions. A prime consideration in carrying out the stocktake was the privacy and confidentiality of the service users. The study was carried out between May and December 2019.
This is a process evaluation, with some measurement of outcomes (from the agency perspective) but no impact evaluation, given the problems in engaging with the clientele.
The project team was led by Emeritus Professor Jeremy Finn and Dr Liz Gordon, who are both on the Justice Innovation Centre committee of CLC, and are experienced researchers in law, justice and social issues. They recruited and trained a research team of four Research Assistants, managed the project and wrote this report. The team also included Chris Littlewood, a retired Assistant Ombudsman.
About the organisations
Community Law Canterbury and the Howard League in Christchurch have worked together for a number of years. In particular, there are people who work in both organisations. This has provided the basis for working together on this and other projects.
The Howard League for Penal Reform was founded in Canterbury in 1924. Its goals are to advocate for prisoners and to alter and improve penal systems. For many years it was a national organisation, but it is now much smaller. The HL in Auckland changed focus around seven years ago towards a more service-oriented model.
In Christchurch, the HL advocates for prisoners in terms of human rights and welfare matters. It also issues press releases around penal policy changes, and appears at coronial inquests into deaths of people in prison. Currently the League is involved in two further projects: a Youth Garden project at the Youth Unit at
Christchurch Men’s Prison and a joint project on prisoner stories with Anglican advocacy.
Community Law Canterbury (CLC) is part of the network of Community Law Centres, which are funded by the Ministry of Justice and other agencies to provide free legal services for low-income and other disadvantaged groups. CLC is the largest centre in the network, and, in recent years, has been providing a range of additional services, especially since the Christchurch earthquakes. It has a big roster of volunteers, who are law students at the University of Canterbury or lawyers providing pro bono time to the Centre. It has a reputation for providing support to community groups. For example, in the wake of the Christchurch Mosque massacre in March 2019, CLC had legal services on the ground the same afternoon and, by the end of 2019 was still providing a range of services to that community.
The idea for a service for prisoners arose from the HL which, for many years, has received letters from people in prison seeking help and advocacy. Although CLC was involved as a supporting agency from the beginning, initially the HL was the lead agency. However, the service was taking up increasing amounts of the time of the HL advocate, leaving no space for other work. CLC and HL then agreed to co- fund a co-ordinator for the service. By 2019, the service was wholly funded by the CLC. This included the co-ordinator, volunteer costs, training and support. The main role of the HL now is to receive referrals relating to human rights-based matters and prisoner rights issues.
In essence, the service has become an additional clinic of CLC, which offers clinics in a wide range of remote locations to suit the needs of communities.
Service description
The service was described to us through interviews with staff and volunteers, plus formal documents.
The service runs by appointments on Friday mornings within the various sites. The service visits Christchurch Women’s and Rolleston prisons once a month, and Christchurch Men’s fortnightly. It has recently (February 2019) shifted its focus from an information to an advice service.
The interviewers are mainly law students, acting under supervision. The initial focus is on understanding the issue, then on research and support. Support options include referrals to Family Law solicitors within CLC, attending parole hearings (both as support and for legal representation), helping with form-filling and referring to a range of agencies.
The move towards providing advice has significant implications, requiring an increased injection of legal supervision and decreased involvement by volunteers beyond the interview stage. The co-ordinator is a lawyer employed by CLC, and also receives some (paid) administrative assistance. The new advice model therefore no longer has such a strong reliance on volunteers and is a professional legal advice service. This means that in all cases, the volunteers receive advice from a CLC solicitor and write letters based on that advice.
The HL used to provide some funding towards the service, but now it just takes referrals, mainly on matters to do with rights and treatment in prison. Referrals are also made to a range of other agencies in relation to services outside the prison, housing, employment and welfare. The basic structure of PAS, including four frequent areas of enquiry, is shown in Figure 1 below.
Figure 1. Structure and common areas of enquiry, PIS/ PAS.
Those involved in delivering the service told us that there were several problems that had to be managed. The first was the availability of volunteers, who were mainly law students that had many other responsibilities. The shift from information to advice service has reduced the reliance on volunteers, and solicitors, not volunteers, now manage the cases.
The second issue is resources. Since January 2019, the co-ordinator has been paid for 17 hours per week for her role. She noted that prior to this she always worked above what was paid. She noted that the work can be “tricky and frustrating”, and this is exacerbated when “working for free while putting a lot of effort in”.
Also, the Corrections environment can be challenging, even though the prisons co- operate fully to provide the service. Some of the units are proactive in contacting the service. But there are prison staff who resist the model, either because of its association with the HL, or because of a focus on prisoner rights. Prisons are big organisations and can be slow to respond.
As well, clients can be challenging, with a range of issues from low literacy to mental health problems. This is discussed later.
There are posters up in the prisons, although a lot of clients arrive through
word of mouth via other people in prison. Clients must
register their interest
with their case officer to be put on this list for an interview. The
co-ordinator contacts the prison on
the Wednesday before the clinic to confirm
the list, although in practice others may be added between the issuing of the
list and
the clinic. The advice process is outlined in Figure 2
below:
Clinic
Conflict
Issue
Prisoner
Admin
Figure 2. Prison Information Service procedures
Legal advice needs of prisoners
There is only a small amount of literature on the specific legal needs of prisoners, and how to fulfil those needs. A report by the Australian Law and Justice Foundation (2008) noted there is little research on the legal needs of prisoners and their ability to access justice. Six years later (2014) the same organisation still found that prisoners remained one of the “sections of the population who do not feature prominently in ‘representative’ legal needs surveys”.
The official picture from Canada, the United Kingdom and New Zealand confirms the Australian view. For example, when discussing the needs of prisoners in Canada, the Canadian Bar Association’s (2010) report refers to only two works published over 15 years ago. A 2013 report by the Action Committee on Access to Justice in Civil and Family Matters makes no specific mentions of prisoners at all. In the UK, the final report of the Bach Commission on access to justice issues contains just two short paragraphs specifically addressing the needs of prisoners. New Zealand does particularly poorly in this area. The 2018 report of the New Zealand Bar Association Working Group into Access to Justice notes only that CLC Centre staff “travel widely to provide services to those who ... are in prison”.
Organisations in Australia appear to have done most to report on prisoner’s needs. The Law and Justice Foundation of New South Wales has been particularly active in this area. As well as the two works mentioned above, it periodically reports on matters affecting prisoners’ legal needs and access to justice. As well, the Law
Council of Australia’s Justice Project 2018 Final Report has a 77-page section devoted to “Prisoners and Detainees”. There has been some limited action by governmental agencies in Australia to respond to the needs of persons in prison. The South Australian Legal Services Commission does not provide any general programme of assistance to inmates, but Commission advisers visit attend the Adelaide Remand Centre, the Pre-release Centre, two Adelaide prisons (the Women’s Prison and Yatala Prison) and Mobilong Prison in Murray Bridge to provide legal advice on matters that impact on prisoners’ families. This is described as commonly including advice in relation to family law, child protection, debts and wills and estates.1 Inmates of regional prisons can access information of that kind through a pre- booked telephone advice service. The service has been operating for some years, but only the Mobilong Prison has been added in the last five years.2 Apart from Queensland, discussed below, other states provide much less in the way of legal advice and assistance.
1 Annual Report of the South Australia Legal Services Commission 2018-2019, available at
2 See the description of the service in Christopher Stone “The work of an Access Services Lawyer” Bulletin of the Law Society of South Australia, vol 36, (2014), pp34-35, at 34.
More recently Legal Aid NSW has begun a new programme under which lawyers from its civil legal service work intensively with prisoners serving short sentences to resolve legal problems such as housing issues, unpaid fines and debt ahead of those prisoners being released at the end of their sentences, with support also being available post-release.3 The aim of the intensive assistance programme is to prevent the escalation of legal issues whilst a client is in custody, which support them to successfully reintegrate with the community on release, The assistance is provided through regular advice clinics, community legal education and casework assistance if the matter is complex. The focus on short-sentence prisoners comes about because such prisoners otherwise have limited access to rehabilitation programs. In addition, all inmates may receive “free advice and minor assistance” via staff visits from the Prison Legal Service in civil law areas such as fines; debt; housing; victims; compensation and personal injury, as well as range of family law areas. There is, as yet, no data to determine the effectiveness of this approach, but the underlying premise, that resolution of legal issues may assist with rehabilitation of persons serving prison sentences and their reintegration with the community, may resonate with New Zealand agencies.
The Legal Aid authorities in Victoria and Western Australia do not appear to provide any form of direct legal assistance to people in prison for other than criminal cases. but each runs a single, limited, legal education programme for certain prisoners but these are of limited scope. In 2018-19 Victoria launched a project at a women’s prison “to help women on remand better understand bail laws and find out what they want to know about lawyers, courts and sentences.”4 Legal Aid Western Australia, as a part of its Reconciliation programme (directed at Aboriginal prisoners), delivers community legal education sessions in prisons and detention centres. “Sessions are designed to empower participants with knowledge about laws relevant to them, get them thinking about choices and legal consequences and inform them about their rights”.5 It does not appear that in either state inmates are given more concrete and personalised advice on legal issues. Deficiencies in the state provision of legal advice (other than in relation to pending or current criminal matters) are unlikely to be significantly addressed through governmental channels, as the Community Law Centre network in Australia does not operate in that space.6
3 Legal aid NSW Annual Report 2018-2019 (available at https: www.legalaid.nsw.gov.au, at p 58. 4 “Access to justice for Victorians: Victoria Legal Aid Annual Report 2018-19, available from www.legalaid.vic.gov.au, p 24.
5 Legal Aid Western Australia Annual Report 2018-2019, available at legalaid.wa.gov.au at p 39.
6 No such programme is mentioned in the 2017 Census of National Association of Community Law Centres
(NACLC, Sydney 2018).
Outside of official reports, academic work focusing on the legal needs of prisoners and their ability to access justice is also relatively rare. Most work appears to focus on the needs of prisoners in the United States. However, this literature is generally system-specific and relates to pro se litigants and the courts’ interpretations of the first, sixth and fourteenth amendments. Again, work from a New Zealand perspective appears to be practically non-existent. However, using reports and articles from other jurisdictions, a picture can be drawn of prisoners’ legal needs, access to justice issues and prisoner barriers to accessing justice. These are discussed below.
In the literature, prisoners’ legal needs are usually categorised into three types:
Offence related. This category includes prisoners’ needs in relation to the offence they are charged with both before, during and after their trial.
Incarceration related. These needs relate to the rights of prisoners in relation to the conditions of their incarceration.
Non-criminal. These needs relate to civil and family issues such as debt, housing, employment, custody and domestic violence.
The first category is reasonably clear. As the Law Council of Australia notes, “prisoners, by definition, will have experienced or be experiencing criminal legal issues”. For example, those detained prior to trial (on remand) will have legal needs relating to all matters leading up to and including their actual trial. If they are found guilty and sentenced to imprisonment, they may then have needs relating to appeal or to parole hearings.
It should also be obvious that prisoners will have issues related to their civil rights whilst incarcerated. Being removed from society whilst subject to the constant control of others, often without oversight, is likely to bring into question what treatment is and is not justifiable.
The third category of issues, however, is less obvious and is often overlooked.
American literature, for example, focuses almost entirely on prisoners’ needs in relation to their offence or incarceration. The concept that prisoners in the United States have legal needs relating to non-criminal issues is hardly touched on, despite clear evidence from other jurisdictions that these needs exist.
The literature that does consider the third category indicates that prisoners have legal needs in at least the following areas:
Not only do prisoners face similar civil matters as non-prisoners, there is evidence that they may have more legal needs in these areas, either generally or because of their specific circumstances. This is partly explained by the known association between disadvantage, criminal offending and non-criminal legal problems.
These needs are exacerbated, not extinguished, by removal into custody. For example, parents, particularly those who previously had primary care of children, may face increased needs in relation to family law once imprisoned. It should be noted that some women in prison may receive help from the relatively recently founded “Mothers’ Project” which operates in the three New Zealand women’s prisons to assist mothers who are in prison to gain information about the location and care of their children and the legal position of the mothers to help them understand what they may be able to do to preserve their legal rights in relation to the children. It is modelled on similar schemes in America. This work is done by volunteer lawyers, but the emphasis is on assisting with opening lines of communication between the mother, her children and her wider family. On occasion mothers are put in touch with family lawyers but the project does not provide detailed advice or representation. It therefore operates differently from the Prison Advice Service.
Services in other jurisdictions
This section provides brief summaries of the main functions of a number of services that offer legal support to people in prison. Where possible, the summaries include what the service does, who does it, how it is run and how it is funded.
Prisoners’ Legal Service Inc.7
This is an independent community legal service operating in Queensland. It receives funding through Legal Aid Queensland (which funds CLCs) and also another government agency for its Financial Counselling Service. The annual report notes:
PLS offers free legal advice, information, assistance and referrals to Queensland prisoners and their families on matters relating to their imprisonment. The Service also maintains a watching brief over prison administration and law reform initiatives relating to prisoners and the public interest.
The service is operated by lawyers assisted by volunteers, usually students on work experience. It runs as a free telephone advice service for 8 hours per week. In 2017- 18, the provided advice 4385 times and opened 262 cases on incarceration-related matters. The biggest topic was parole and parole-related matters.
The service is primarily accessed by telephone (2000 cases in 2017-18), but also by letter or email (1325) or in person (633). The top advice topics were overwhelmingly related to parole, but also included, bail, criminal law, access to programmes, freedom of information and placements.
The prison population in Queensland has been growing quickly, putting pressure on prison services and leading to increased complaints. Issues include increased assaults, property damage, lack of access to courses, delays in visiting and waiting lists throughout the system. The service has been jointly involved with Human Rights Watch in a study of people with disability in prison.
The service has a significant litigation arm, taking cases on behalf of prisoners. One example given in the report is outlined here:
Case study: Solitary confinement
A prisoner suffering from a range of psychiatric disorders and an intellectual disability, had been detained in solitary confinement for more than six years.
7 Prisoners’ Legal Service Inc. (2018) Annual report.
He was issued a consecutive maximum security order and maximum security classification which authorised his detention in solitary confinement for an additional six months. Solitary confinement has detrimental effects on a person’s health and wellbeing, which are particularly pronounced in individuals who suffer from mental health issues or disability. PLS challenged the decisions to place this prisoner in solitary confinement through judicial review proceedings. A range of grounds were pursued including the failure to consider procedures that stated a prisoner should not receive a maximum- security classification if they are acutely suicidal. The arguments pursued were available due to the content of internal procedures and requirements in the legislation to obtain and consider medical reports prior to issuing maximum security classifications to prisoners with a disability. Queensland Corrective Services rescinded the decision prior to hearing and agreed to reconsider. Sadly, the relevant procedures and legislation requiring such considerations to be taken into account were subsequently amended by Queensland Corrective Services to significantly reduce the protections in place for prisoners with disability being placed in solitary confinement.
A separate financial counselling service is offered. In the report year 190 clients were assisted. The service is based on the notion that “prisoners pay twice”, with debt often escalating while people are in prison. A case study follows:
Mr B – Mr B had a credit card debt which had been sold to a debt collection agency. The debt was not statute barred as Mr B had entered into an arrangement with the creditor and made some payments before going to prison. While in prison, the debt had increased from $17,000.00 to $34,000.00. As Mr B would be in prison for a minimum of 4-5 years and had no other significant debts, we advocated to the creditor that it would be uneconomical to pursue the debt and that Mr B would be unlikely to be able to repay the debt before it became statute barred. The creditor agreed to waive the debt in full.
The organisation has six solicitors, a financial counsellor and two administrative staff. There were twelve volunteers and interns in the year, and ten legal clinic students who worked one day per week during the university semester.
Jailhouse Lawyer’s Handbook
This handbook is available free via computer download. The focus is on how to bring a Federal lawsuit to address rights violations and poor conditions in prison, including abuse by staff. A rights-based approach.
The Lewisburg Prison Project
This project takes individual and class action suits to challenge prison “atrocities”. For example, one ongoing suit is summarised as follows:
According to the case, the plaintiff, Richardson, was held in restraint for more than 20 days, unable to properly eat, drink, or use the bathroom, in clear violation of his constitutional rights. That this practice is prevalent at the Lewisburg SMU is one of the reasons this lawsuit is a class action, rather than a personal, suit.
The service is accessible only by letter. Around 75-100 federal prisoners, and 65-75 state prisoners, write in each month. A focus is on teaching people in prison to advocate for themselves, and a series of bulletins are written for that purpose. Most popular topics are health, mental health and filing federal tort claims. The service also supports pro se claims, providing copying and storage services.
Prisoners’ Advice Service – England and Wales
This is a legal charity operating a range of services. The following pictogram summarises their reach:
The main service is a telephone advice line, which operates four days a week. There are clinics in the morning, afternoon and early evening. The phone number is globally cleared in all prisons. The prime contact is with prisoners themselves, rather than with families.
For those who cannot ring or who wish to write, there is a letters clinic which is also very busy. Again, the focus is on prisoner, not family, contact.
There are two types of outreach clinic. The first is legal advice clinics, and in 2018, 125 were delivered across 21 prisons. The clinics provide expert advice on a wide range of issues. The second were legal education session teaching small groups of prisoners about prison law. Graduates of the programme receive a certificate of completion.
The service provides around 10 self-help toolkits, numerous information sheets and has other projects, including working with women prisoners who have children.
Finally, the service produces a quarterly bulletin of legal issues around prisoners’ rights, including recent cases and legislative changes.
Other
There are a range of other services found on English-language searches, but most share characteristics of the above. They may offer a direct service to prisoners, and/or take cases on behalf of prisoners (including class actions), and/or act as advocates for fair treatment and civil/ human rights in the prison system.
Prisoner’s rights in relation to legal needs
The conceptual base for prisoners’ rights in relation to their legal needs and access to justice is their continued membership of the social order and the observance of the rule of law. In principle, the protection of the law - whether related to criminal, civil or family matters - and access to the courts to enforce such protection should be available to all without discrimination. Imprisonment does not remove a person’s rights or allow discrimination. It simply means that such rights may, in justifiable instances, be limited. As the Chief Justice of Canada noted:
... the remedy of imprisonment for a term rather than permanent exile implies our acceptance of continued membership in the social order. Certain rights are justifiably limited for penal reasons, including aspects of the rights to liberty, security of the person, mobility and security against search and seizure. But whether a right is justifiably limited cannot be determined by observing that an offender has, by his or her actions, withdrawn from the social compact. Indeed, the right of the state to punish and the obligation of the criminal to accept punishment are tied to society’s acceptance of the criminal as a person with rights and responsibilities.
While some civil rights may not be deliberately be limited for prisoners, in practice it is much harder to get legal support for civil matters while in prison. Remand prisoners, in particular, will get legal advice for their criminal offending, but assistance with debt, property, family, insurance and many other legal matters may be beyond their reach. This class of prisoners may have particularly acute needs for advice as arrest and custody may give rise to a wide range of legal issues in fields as diverse as family law, employment, accommodation and consumer contracts. A lack of advice at this stage can lead to significant injustices. Martin Schoenteich notes:
Many pre-trial detainees lose their jobs, are forced to abandon their education, and are evicted from their homes. They suffer physical and psychological damage that lasts long after their detention ends8.
The Bach Commission report states: “...if you ... don’t have the means to access the justice system on a fair footing ... then the outcome that is reached is unlikely to be just.”
The means to access the justice system include at least: access to legal information; access to legal advice; and access to legal proceedings.
8 Martin Schoenteich. Punishing the innocent: the socio-economic impact of pre-trial detention on detainees’ families. In Liz Gordon (ed) Contemporary Research and Analysis on the Children of Prisoners. Cambridge Scholars Publishing 2018 at 55.
The Australian literature identifies a number of methods by which prisoners access legal information and advice:
Apart from access to the internet, which currently few prisoners receive at all, similar methods are available in New Zealand prisons. As noted above, the New Zealand Bar Association Working Group noted that CLC Centre staff “travel widely to provide services to those who ... are in prison”, that is not entirely accurate, as few prisons receive such services.
Prisoners face physical, cognitive and financial barriers to accessing justice across all three dimensions discussed above. These barriers are discussed under various labels in the literature but can be broken down into the following categories:
Prison involves inherent physical barriers and “the prison itself should be
considered a barrier to accessibility of civil justice”. Simply being in prison creates physical barriers for prisoners trying to access justice, over and above those experienced by other disadvantaged groups. Further, prisoners are essentially reliant on others to facilitate their access to justice. However, not only are resources, such as staff and facilities, often lacking to properly support such access, staff often view such support as less important than their other custodial duties.
Increased use of technology, such as audio-visual communication, has been seen by some as a potential means of overcoming access to justice issues. as it can, theoretically, facilitate prisoners obtaining legal information or advice or even allow for them to “appear” in court. However, others have noted that such technology may not properly facilitate prisoners participating in or comprehending legal
proceedings or understanding legal advice. Prisoners may be technologically illiterate and/or distrustful of such methods of communication.
Another issue for prisoners is that, as the world outside (including the legal world) increasingly moves online they have very limited access to such an environment.
Many legal firms now communicate or offer services online and legal resources, such as judgments and case law, are mainly offered electronically. Prisons, such as those in New Zealand, that prohibit internet access effectively prohibit prisoners from using such avenues of accessing justice.
Prisoners are “disproportionately affected by cognitive impairment and poor comprehension skills”. As a population they experience high levels of intellectual and cognitive impairment, have low levels of education and literacy and often suffer from traumatic brain injuries, mental conditions, and alcohol or other drug induced impairments. Such disadvantages mean that prisoners may face cognitive barriers to justice because of difficulties processing or understanding legal information particularly when information is provided in writing.
Research indicates that although prisoners may have previous experience with the legal system, they often struggle to realise that they face a civil or family legal issue, identify what they can do about the legal issues they face or know how to seek legal assistance. Prior negative experiences with the legal system may also make them
disinclined to even try to pursue official options. Prisons promote and “us” vs “them” mentality that can result in prisoners feeling frustrated, marginalised and distrustful, which may result in a belief that there is no point in even trying to engage with the system. PAS and Corrections staff emphasised to the researchers for this project the need for services to prisoners to build credibility and trust with the prisoners before a significant number of requests for assistance would be made. Consistency in staffing is important here, as this helps build trust. One PAS staffer told us that if assistance was asked for and given to an inmate of standing in a unit there would be an increase in requests from others in that unit. A slightly different dynamic was observed in a Youth Prison, as their requests for legal advice often followed the holding of educational classes as part of the prison education/ rehabilitation programme in which student volunteers discussed legal issues. (Those classes were conducted by Law for Change, a volunteer group based at the University of Canterbury). An inference can be drawn that many young prisoners were not fully aware of their legal rights and obligations and so did not seek advice until their knowledge base had been expanded.
Financial disadvantage may mean that prisoners simply cannot afford to address their legal issues. Many prisoners are unemployed and homeless and many have debts before, during and after incarceration. Their financial situation is, therefore, generally poor prior to entering prison and worse on release. Lack of finance creates a severe barrier to prisoners accessing justice, even in countries where legal aid is
theoretically available. For example, in New Zealand, it has been noted that due to stringent legal aid requirements, “[a] large proportion of the population do not qualify for legal aid but are equally unable to pay for legal services.”
Further, even if a prisoner is eligible for legal aid, and able to navigate the application process from prison, they may not be able to find a lawyer. In New Zealand, changes to the legal aid system, which have lowered the fees legal aid lawyers are entitled to and controlled the way those fees are calculated and paid, have led to a reduction in the number of lawyers willing to provide legal aid services.
Physical barriers and limited resources may lead to prisoners representing themselves in legal matters. Although some prisoners display great ability in this regard many will be handicapped by lack of access to legal information, lack of understanding of legal processes and an inability to understand legal information due to cognitive impairment. For many, self-representation represents a barrier to accessing justice.
Prisoners often depend heavily on those outside of prison- such as family, friends, support services and government agencies - to help with their legal issues. However, given the nature of many prisoners’ lives, such outside support is often unavailable or unwilling to help. For example, mental health issues, alcohol or other drug addiction or a tendency to be violent may have undermined the support relationships that prisoners can rely on.
Access to justice services in NZ prisons
In New Zealand, prisoners’ minimum entitlements include access to a legal adviser, who may visit the prisoner “at any time agreed to by the prison manager if the purpose of the visit is to discuss the prisoner’s legal affairs”.9 If a time cannot be agreed then the “the manager must nominate an alternative time that is reasonable in the circumstances”.
In terms of arranging for a legal adviser to visit, it should be noted that New Zealand prisoners mostly do not have access to email. They may send and receive letters, with the prison providing writing materials, envelopes and standard postage. There is also an e-prisoner service, where people may email a prisoner with permission.
Telephone contact remains important, although cell phones are strictly forbidden. The manager of a prison must ensure that prisoners have access to telephones at all reasonable times to communicate with their legal adviser to arrange bail or to discuss pending proceedings. Such access must also be given if an ombudsman or inspector requests the prisoner contact them by telephone. However, access to the telephone to contact a legal adviser for any other purpose – for example, about a legal issue where proceedings are not pending - is at the discretion of the prison manager.
When considering what times may be reasonable for a prisoner to receive a visit from or telephone their legal adviser, or whether they should have access to the telephone to contact a legal adviser, the guiding principles of the Corrections Act state that:
6 Principles guiding corrections system
(1) The principles that guide the operation of the corrections system are that—
...
(f) the corrections system must ensure the fair treatment of persons under control or supervision by—
...
(ii) ensuring that decisions about those persons are taken in a fair and reasonable way and that those persons have access to an effective complaints procedure:
9 Corrections Act 2004, s 74. Access to a lawyer for matters other than presenting a defence at trial is not guaranteed by the UN Minimum Standards for the treatment of Prisoners, which impose obligations on the New Zealand Government. See further the discussion of the role of the Prisons Inspectors, below.
(g) sentences and orders must not be administered more restrictively than is reasonably necessary to ensure the maintenance of the law and the safety of the public, corrections staff, and persons under control or supervision:
...
The guiding principles also require that prisoners be provided “with information about the rules, obligations, and entitlements that affect them”. It is the responsibility of the prison manager to ensure that staff members and prisoners “are given the relevant information about their rights, duties, and responsibilities”. There does not appear to be any prescribed method or timing regarding the provision of the information to prisoners, save for information regarding the complaints procedure, which must be given “promptly after the prisoner is received in a prison, and in any case not later than 24 hours after the prisoner is received.” In relation to this point, research indicates that:
the types of legal problems inmates face and their own personal (e.g. cognitive) capacity to identify and address these legal issues ... vary considerably as they move through these phases of imprisonment.
It is, therefore, doubtful that simply informing prisoners of their legal rights, or of how they can access further information or help, at a single point in time - particularly when they are first incarcerated when they are likely to be extremely distressed – will be sufficient to adequately inform many prisoners. Several Corrections officials to whom we spoke suggested that once prisoners had been sentenced, and thus had a degree of certainty as to the future, they were better able to deal with other matters. Repetition of information would clearly be beneficial.
All New Zealand prisons have libraries but it is not clear how well sourced these are with legal information. The Department of Corrections uses various service delivery models in relation to prison libraries, including external providers and partnerships with local libraries, and states that:
all prisoners are eligible to use the prison libraries and have access to library services in one of the following ways:
CLC produces Lag Law, an advice manual which provides prisoners with information on their rights inside prison and on release. Theoretically all prisoners should have access to a copy of this manual. It is not known to what extent this is available in practice.
Research, again in Australia, has identified several general difficulties that prisoners experience in relation to accessing legal information. They often lack basic information about processes or services available to them, the information they do obtain may be incomplete or out-of-date (particularly if it is obtained from other inmates), there can be long time delays between requesting and receiving information and the processes which prescribe how information can be obtained may be prohibitive in relation to their personal capacities. Prisoners may also experience difficulties because of their personal circumstances, such as being placed in lockdown, isolation or segregation.
As discussed above, in New Zealand, prisoners’ minimum rights include access to a legal adviser, although they may face barriers in doing so. The PAS operates in the Christchurch prisons and youth facility, and CLC in some other centres also operates in the prisons. There is no automatic right of access to an advice service. For example, the PAS utilises law students in the clinics. The right to access a legal adviser only extends to a lawyer within the meaning of the Lawyers and Conveyancers Act 2006 so would exclude students.
As with access to legal information, general issues faced by prisoners in relation to access to legal advice are: lack of information about their rights or the services available, difficulties in contacting legal advisers, lack of visiting advice services, visits by legal advisers being too short or not occurring at all; and the usefulness of any advice being undermined by the prisoner’s mental or emotional capacity.
Prisoners’ ability to access legal proceedings first requires them to be have the correct information and advice. However, prisoners also need to be able to overcome physical and financial barriers. Both can be problematic. For example, people in prison may not have sufficient funds to pay court filing fees or be able to physically attend proceedings. In New Zealand, although prisoners have the right to be present and defend themselves in relation criminal matters, their rights to attend in relation to civil or family matters are not guaranteed. But dependent on others: “any court or Judge or Registrar may, by order in writing” require a prisoner to be brought before a court or to attend judicial proceedings if “the interests of justice require [their] attendance”. However, in relation to a civil proceeding, anyone who requests such an order must deposit sufficient funds with the court to cover the expenses of the prisoner being brought to the proceedings and returned to prison.
Internal matters and oversight
Many of the matters raised by people in prison relate to internal matters, the most common of these being issues around programmes, parole, treatment in prison and calculation of release dates. For the most part prisoners will not generally seek legal
assistance or advice in regard to such matters until all internal processes have been resolved, if then. However, we were advised that after it became known in Christchurch Prison that a person connected with the Prison Advice Service had assisted with an application for parole there were several more requests to the Service to assist with similar applications.
The functioning of the internal complaints process lies outside the scope of this project, but it is relevant to note the supervisory roles of two agencies which can, and do, conduct inspections of prisons to monitor compliance with the statute and international rules by which New Zealand is bound, the Office of the Ombudsmen and the Prisons Inspectorate within the Department of Corrections. The reports compiled by the latter provide useful contextual information about the facilities available to prisoners seeking legal advice.
Ombudsmen
The office of the Ombudsmen also have a legal responsibility to examine and monitor the general conditions and treatment of detainees in New Zealand prisons , as that office was designated as a National Preventive Mechanism under the Crimes of Torture Act when the New Zealand Government ratified the United Nations Optional Protocol to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment in 2007.
As such, the Ombudsmen may examine the treatment and conditions of detained persons in a number of places of detention, including prisons, and may make recommendations for improvement. Examinations may be carried out at regular times or at such other times as the Ombudsmen may determine. In practice the Ombudsmen often make inspections without prior notice to the institution visited. While the ambit of the Ombudsmen under the legislation is broad, the emphasis is very much on the physical conditions in the prison and matters which affect the physical well-being of the inmates. Issues as to the operation and efficacy of the prison’s complaints process are also examined.
Ombudsmen have intervened to ensure that prisoners have access to facilities (such as laptops and databases) to assist them with preparation of their civil and criminal cases. Where they have done so, Ombudsmen have noted that Corrections has acted unreasonably in withholding or not providing these facilities.
Under the 1975 Ombudsman Act, Ombudsmen investigate complaints by prisoner of on an Ombudsman’s ‘own motion’. However, it does not appear that inspections or investigations by Ombudsmen generally extend to issues such as prisoners’ access to legal advice in relation to current or pending criminal charges, let alone advice in relation to unresolved civil matters.
Prison Inspectorate
The Prison Inspectorate is located within the Department of Corrections and the Chief Inspector is answerable only to the CEO, so as to ensure a high degree of independence. There are two teams of inspectors, which each carry out inspections of the various prisons within New Zealand to ensure compliance with the provisions of the Corrections Act and with a set of “healthy prison” standards which have been derived from the United Nations Standard Minimum Rules for the Treatment of Prisoners (The Nelson Mandela Rules). Inspectors assess each prison under four principles:
Reports also include specific assessments of nine specific areas of prison life: reception and admission, first days in custody, escorts and transfers, good order, duty of care, environment, health, rehabilitation and reintegration.
The Inspectorate has, within the last two years, published 11 reports on individual prisons following instructions in 2017 and 2018. While much of the work of the Prison Inspectors has relatively little connection with the provision of legal advice and assistance to prisoners, their work has particular relevance to the adequacy and standard of facilities for prisoners to make contact with legal advisers and to do so with an appropriate level of privacy. Those matters will necessarily affect how any more substantial provision of legal advice to inmates could be provided given current facilities.
Most of the 11 prisons reported on have secure suites – of varying sizes – providing audio-visual links (AVL) which can be used for prisoners to “attend” court hearings by AVL, to talk to family and to get advice from their lawyers. Generally, the reports suggest that these suites are adequate for the current demand, but issues may arise if demand for communications with lawyers was to increase significantly. It was noted in two prisons (Mount Eden Corrections Facility and Northland Regional Correctional Facility) that use of the AVL suites for communications between prisoners and their lawyers between was hindered by lawyers either not
being present at the time scheduled or at all.10 A third prison (Whanganui) found problems with lawyers not dialling into the correct booth.11 These problems aside, prisoners were generally content with the use of AVL suites for communications with lawyers, and none reported concerns as to the privacy and confidentiality of their discussions.
The position was significantly different where prisoners were reliant on, or were attempting to use, telephones to contact their lawyers. The inspectors found in one prison (Rimutaka) that staff refused to facilitate telephone calls to lawyers,12 and in others (Mount Eden and Tongariro) that on occasions Corrections officers sat in the same room as a prisoner who was speaking by telephone to the prisoner’s lawyer.13 Both these inspections were conducted in 2017, and it appears remedial action has been taken to try to prevent recurrences. However there were widespread complaints that the telephones used for discussions with lawyers were in common spaces where privacy was lacking and there was substantial noise.14 Several inspections found that the number of telephones available to prisoners to contact family or lawyers was inadequate, and in the case of Northland prison disputes over use and access had resulted in violence.15 In Manawatu and Christchurch Mens prisons there were complaints that prisoners had difficulty in contacting their lawyers because the telephones could only be used at hours which mirrored court hours when lawyers were not free to take calls.16 While those complaints related to lawyers advising on criminal matters, similar issues might well arise with lawyers handling other kinds of legal issues for prisoners.
10 Mount Eden Corrections Facility Inspection January 2018 (Department of Corrections, May 2019), para 29; Northland Regional Corrections Facility Inspection September 2018 (Department of Corrections, August 2019), para 24.
11 Whanganui Prison Inspection September 2018 (Department of Corrections, August 2019), para 25.
12 Rimutaka Prison Inspection October 2017 (Department of Corrections, April 2019), para 108
13 Mount Eden Corrections Facility Inspection January 2018 (Department of Corrections, May 2019), para 65; Tongariro Prison Inspection April 2018 (Department of Corrections, September 2019), para 75.
14 See for example Christchurch Women’s Prison Inspection May 2018 (Department of Corrections, July 2019) para 97; Otago Corrections Facility Inspection March 2018 (Department of Corrections, April 2019), para 150; Manawatu Prison Inspection March-May 2017 (Department of Corrections, September 2017), para 162.
15 Northland Regional Corrections Facility Inspection September 2018 (Department of Corrections, August 2019), Finding 10.
16 Manawatu Prison Inspection March-May 2017 (Department of Corrections, September 2017), para 175;
Christchurch Mens Prison Inspection June 2018 (Department of Corrections, August 2019) para 116.
The Prison Advice Service
This section primarily reports on stakeholder views of the PAS and aims to provide a clear account of how the service currently operates in practice. As noted above, the service operates one day per week, including twice a month at Christchurch Men’s Prison and monthly at Christchurch Women’s and Rolleston.
The service is staffed entirely by CLC solicitors and volunteers, whereas in the past both CLC and HL staffed the clinics. With the recent change in service, the sessions have been brought into line with the normal operating system of CLC clinics.
On average there are four-six clients requesting assistance at each clinic, and they bring with them between one and four issues, averaging around three.
The clients are predominantly pākeha. The service is trying to reach out to groups such as gangs in prison to increase Māori engagement. It is possible that the pākeha face of the volunteers may put Māori prisoners off.
The largest number of prisoners who attend are between 24-44 years old. It has been mainly a male service but the number of women clients is increasing. The youth service is still small at present.
Most clients are good to deal with, but some with mental health needs are more challenging. The staff focus on taking good notes and, where possible they have two people in interviews. They have had incidents with clients, one with serious mental health issues (schizophrenia) where the staff were concerned about wellbeing. Such cases are reported back to CLC supervisors.
In one case, a client appeared to be getting sexual gratification from talking with female volunteers and asking pointed questions. Corrections knew him well and could control access. If there is a particular issue between volunteer and client, that volunteer will not see that client again unless they are comfortable. If the client need to be contacted about this, a coordinator will do so. If there are complaints, they are usually sent to CLC and are dealt with in house.
The clients attend the services with a very wide range of queries. These are often as simple as a client being served with papers they do not understand. In such cases the staff member will either go through the document with the client on the spot, or will take it to consult with a solicitor and respond either by letter or a further interview.
Many cases are about debt and insolvency, benefits, rights, family law or ACC. Sometimes Community Law takes on the case itself. Recently, where a client had a head injury, a CLC staffer took the case on. This involved drafting the paperwork, dealing with difficulties in communication and signing letter of engagement.
The aim of the service is to provide swift responses, usually within one week. Most often, responses are provided by mail or e-prisoner.
CL also takes on a number of parole hearings. The service has a parole checklist to make sure that CL can act. There may also be referrals to the family law and ACC services, which are funded through legal aid.
The HL acts as a referral agency for advocacy issues encountered at the clinic. On average, 1-2 matters are referred to the HL each week. The HL has a paid, part-time advocate who deals with the cases. Th following issues were cited in an interview as being the issues that HL might deal with:
The HL aims to respond to all cases, but not necessarily as quickly as the CL side of the service. The aim is to respond as soon as possible. It is a more informal approach than the CLC. There are several responses that the HL may make to a case:
Clients are required to sign a privacy waiver in order to allow the HL to discuss any case with the prison. The client is asked to outline all steps taken to date, including having made an official complaint. This is a requirement for further action. There is a discussion about the expected outcomes from an intervention.
The HL advocate works towards the simplest response first. This often includes discussing the case with Corrections and seeking the required outcome. If the prison notes the outcome cannot achieved, this is reported back to the prison. Occasionally, when a number of similar matters come up, the advocate asks for a meeting at the prison to discuss these.
There are a number of things that the HL intervention can achieve, like changes in policy and practices. They tend to be small gains. Some larger issues are referred to other organisations, such as other HL branches (Wellington, Dunedin) or the organisation People Against Prisons Aotearoa (PAPA). The HL does not at present carry out national advocacy itself.
Other service alternatives
There are few other options for this kind of service in the area. A while ago, some lawyers began offering a service in the women’s prison to assist with family law. The PIS ended up receiving poor feedback as a result. The lawyers went in with a business model to gain legal aid for the clients to assist them. If legal aid was not granted, the lawyers did not follow up with client.
Apart from parole representation, there is little other non-criminal legal support for prisoners. It is difficult for lawyers to offer services, as no legal aid can be granted for these issues, which means that most work done in this space is likely to be pro bono. There are organisations that provide reintegration support, but these are unlikely to cover the PAS advocacy issues.
In conclusion, the PAS stakeholders are convinced of the necessity of the clinics and that the need is there. Options to improve include Māori liaison, provide more education for the volunteers in solving legal needs, ensuring volunteers are well- supported and ensure funding models provide certainty for the service.
Analysis of client files
As part of this study, 646 PAS client files were analysed covering the years 2017-2019 (mid-year), around 30 months. Most clients required information or advice on more than one topic. As well, a number of clients contacted the service more than once on different issues, so the count of individuals was around 490. There were a small number of clients (7) who returned to the service six or more times, up to ten times. One prisoner presented ten times and had a number of issues. These included: sentence length, status of property sold by bank, strip searches (legality of), appeals and family law.
Women and men prisoners have some different concerns, and women’s issues tend to get swamped by men’s, because of the differential numbers. For this reason, women’s and men’s case files will be considered separately.
Seventy individual women prisoners approached the service 87 times between 2017 and mid-2019. The occupancy of the women’s prison over the past three years has averaged 100-120 persons, although there is significant turnover. As an estimate, 20- 25% of women prisoners have contacted the PAS. Fifteen of these were Māori, and nearly all the others identified as European/Pākeha. While Christchurch women’s is the most non-Māori of all the prisons, this is still a significant under-representation of Māori. Their ages are provided in Figure 3 below.
35
30
No. prisoners
25
20
15
10
5
0
17-24 25-44 45-64 65+ Not supplied
Ages
Figure 3. Women prisoner service users by age (n=70).
The most common single reason for approaching the PAS was parole (52/87 approaches). Financial issues were included 26 times, visiting 11 times and fines 5 times. There were a number of other issues including health, programmes, residency and legal aid. Most approaches included multiple issues.
There were 36 approaches on family matters and 38 on child matters. Other family issues, such as protection orders, also featured. Together, the wider category of
‘family matters’ dominated the concerns raised by the women prisoners.
Examples raised include care of children (one woman wanted to know who was caring for her children, and that she would be able to take back caregiving duties on release), child visiting, finding a child, protection orders and family support debts.
One case involves a woman in prison who wishes to get a protection order against the father of one of her three children, to cover them all. She wants this to be granted for when she gets out of prison. The man involved has a history of abusing her, and has been trying to contact her in prison. The service advised about types of protection order, and the question of whether to apply now, or on release, was discussed. The letter concluded that applying now might assist with the parole process.
For the men, 420 individuals attended PAS clinics 559 times 2017- mid 2019. There are 900 men in Christchurch Men’s Prison and 255 in Rolleston Prison. For Māori, 55 people in prison attended 74 times. This is a very significant under-representation by Māori. The age range of the male attendees is shown in Figure 4 below:
300
250
200
150
100
50
0
17-24 25-44 45-64 65+ Not supplied
Figure 4. Male prisoner service attendees by age (n=559).
The men attended the clinics for a wide range of issues. The following lists just a few with the number of main concerns:
|
Internal matters
|
98
|
|
|
Family
|
98
|
|
|
Parole
|
93
|
|
|
Rights
|
57
|
|
|
Health
|
49
|
|
|
ACC
|
49
|
|
|
Children
|
48
|
|
|
Employment
|
15
|
|
Most of the internal and rights-related matters were referred to the HL for further action, as were some of the health issues. In total over the period, 180 referrals were made to the HL.
Some cases illustrate how the service operated. In the first case, a man reported to the clinic that he had terminal cancer and was seeking compassionate release so he could spend time with his family. He was told that this was not available to him. The service responded with the following (taken from file notes):
Client advised that compassionate release is not common. Advised that to apply they must request the relevant form from their PCO, the R.02.Form.03 application. The Health Centre can also assist with the application. A detailed outline of the process was provided. The matter would go before the Parole Board who would consider it urgently. If the client is then unhappy with the response it can be reviewed. He was advised that on previous cases the standard has usually been to look at whether the prison can make the client comfortable. Client advised to contact PAS again if they need further assistance.
While a large majority of women prisoners seeks assistance with family matters, the proportion is smaller for men but still, together, family matters is the biggest category of complaints. Often the men are concerned about the situation of their children, or of their ex-partner. It is likely that a number of the concerns raised seek to exert some control over their family’s situation outside of prison. One such example, where it appears domestic violence may be involved, concerned the mother of the man’s two children. He complained that he used to have regular contact with the children, but since the woman had got involved with a new partner, that contact had stopped. He wanted to know how to regain contact and also how to force the woman to have a hair follicle test, as he was sure she was on drugs. The advice given is summarised below:
Client advised to first contact Oranga Tamariki to see if that agency is involved, if not could notify of safety concerns. If they are involved the client could then negotiate contact. Client provided with contact number and address for OT. Client advised how a parenting order is created both on notice and without notice. Also, the client was informed of the situation of consent orders.
Many internal cases were about parole matters. The Parole Board often requires the completion of certain programmes in prison before parole can be granted. The following case is fairly typical of enquiries about this issue. Six months before, a man had been transferred from a North Island prison to Rolleston to complete a programme. Recently he was told he would have to wait another year before he could do the programme. However, his parole date was nine months away. He wanted to complete the programme earlier.
This is an issue that the HL had pursued in the past. Essentially, programme allocations are entirely at the discretion of Corrections. Usually, those towards the end of their sentences are prioritized, but high prison numbers have caused logjams. The man was advised to file a PC.01 complaint form and continue following it up.
The service is often approached about internal disciplinary matters. As noted above, many are referred to the HL. In one case, a person was found with a level of banned drugs in his system, and was charged with misconduct. In response, the service explained the process to him but noted it was limited in the assistance it could provide. It provided copies of information for the CLC publication ‘Lag Law’.
The analysis of client files reveals a very wide range of legal questions, issues and complaints that are brought to the PAS. Most are dealt with by the provision of information and, increasingly, advice. The focus is on a fast turnaround of about one week.
Evaluation
The evaluation provided here is constructed directly around the original questions posed in the project outline.
1. What are the civil legal issues brought by people in prison / youth justice to the PAS?
There is a very wide range of issues. Broadly speaking, the number one issue is
‘family matters’, things to do with prior relationships, child visiting, relationship property and Family Court matters. More than 200 of the 647 approaches to the PIS/PAS concerned such matters. In general, the service is effective in giving advice on such matters.
Example: A child had a Protection Order placed against him twelve years ago that included his ex-partner and three children. He wished to have the order lifted in relation to the children so that he could contact them. The response letter provided some general information regarding protection orders, informed him of the procedures for varying a Protection Order and provided with referrals to lawyers who may help. He was also informed that if he produces further information CLC may be able to advise him.
The next most common issue is those seeking help to achieve parole. In many cases, these queries were resolved by sending a list of lawyers available to represent at Parole to the client.
More complex matters or breaches are referred to the HL. As with all complaints, the HL writes to the client to help them through the process, may contact Corrections asking for the issue to be resolved or, if necessary, meet with the client to work out a pathway to resolution.
About 120 people presented with issues around financial matters. These are often complex and convoluted. They often begin with a simple request to find out how much is owed on various debts and the PAS provides information on how to do this (credit check forms). Further down the track, people may be grappling with how to apply for one or other of forms of insolvency, and the service sends information on how to proceed with a NAP (No Asset Procedure) or bankruptcy.
Issues referred to the HL include problems with visiting, reintegration programmes, education programmes, contact with family, privacy matters, assaults or injuries in prison, health issues (medication, access to treatment etc), concerns about double bunking, dietary requirements, prison transfers and, as noted above, parole.
There are a very wide range of both internal and external matters that are brought by clients to the PAS sessions. The service demonstrates that there is, in many cases, an access to justice ‘gap’ that is at least partially resolved by the PAS.
2. Who are the clients that bring these issues?
Around 15-20% of prisoners access the service. There is concern that there is an under-representation of Māori clients attending the PAS. Reasons for this are not known, though one stakeholder suggested that part of the solution may be to provide a Māori ‘face’ to the service.
There is a small number of recidivist attendees who generally bring a large number of issues to the service. Typically, these people will raise both external (e.g. family, employment) matters with the PAS and also internal matters. The situation of one person who attended ten times was mentioned above. Another who attended nine times on a number of matters was not always able to be helped (“no follow up”), but did receive assistance or information on several matters. The second to last visit by the person was to thank the PAS for its assistance on these matters. The final entry noted that the person was being released and would contact CLC directly on release.
The service is approached by remand, short term and long-term prisoners on issues simple and complex (one person was note to have a “very big file” with the service).
3. What are their needs?
Most clients present to the service with more than one issue. The modal number of complaints per visit are three. The most common single issue raised is those wanting assistance to resolve financial issues. Multiple issues may have to do with family, internal matters, parole, rights, health or legal aid/ representation.
An example of multiple issues is a client who complained that the hospital would not treat him for a medical issue arising from an assault prior to incarceration. A second issue raised in the meeting was that he wanted to know about the storage of article that were on his person when arrested. A third matter was about his vehicle which was seized by police and he disputes the valuation provided. Finally, at that first meeting, he asked a technical question about a search warrant. Four months later the client returned on matters of internal charges, forfeiture of property, police procedure and a specific legal question. Some issues were dealt with directly or by information letter and others were referred to the HL.
There are many needs revealed in the analysis of files. Some are serious and pressing, some are about violations of rights or the misuse of power, and some, if
resolved, were able to smooth the way for earlier release or a better future. It is likely that the same and similar issues are faced by people in prison all over the country.
4. What were the outcome of the PAS engagements?
Outcomes included information provided towards resolving or progressing the issue offering list of potential legal advisers, contacting a third-party agency (usually a lawyer) to gain support, further research into more complex issues with finding provided, or referral to the HL on a range of procedural or rights-based issues. For matters where CLC can offer legal representation (e.g. family or ACC), a referral to that agency was provided.
In most cases, some response was noted, although in some case “no further action” was taken. During most of the period under evaluation, the service was information-only. There is not enough information available to evaluate new streamlined, lawyer-led advice service now offered. It is likely, though, that in some cases the provision of information on how a client may act will be supplemented by specific legal advice, which may lead to earlier resolution of some issues.
5. How does the PAS model compare with similar schemes in other jurisdictions?
Most of the services considered for this review cover a particular State, jurisdiction or even a whole nation. Most, also, receive funding from government or other sources. It is therefore almost inevitable that some services have a wider scope than the PAS. Where the PAS excels is in face-to-face clinics held regularly at the prisons where clients are held. This provides a baseline service that is accessible to nearly all people in the prisons. Live interviews face-to-face are usually the third service, after telephone and mail, in other jurisdictions.
Strengths of the clinic model are: accessibility; ability of volunteers to gain experience in a complex work environment; an interview format which allows the legal team to work through the often several issues raised by clients; an ability to seek clarification in real time and opportunities for clients to self-advocate.
Weaknesses are: the reliance on volunteer interviewers to turn up on a regular basis; a more time-consuming model than either of the alternatives; and a small number of issues around potential harassment, particularly of young female student volunteers in a setting where mental illness and other aggravating factors are always present.
The service can also be accessed by letter but there is no phone line for prison information. As few letters are received, this in effect limits the service to the three
Canterbury prisons. Any move towards a phone line would open up the potential for contact from all of the prisons in Aotearoa, which could not be supported with current resources.
In terms of the services offered, the service is divided into two kinds of service: services that require a legal approach and services that require some kind of advocacy model. There is a small amount of overlap between these approaches but not much and the difference with other jurisdictions is that two agencies work side by side to meet both goals. The recent change from an information to an advice service has largely affected the CLC side of the service, not the HL’s work.
Another important difference is that most of the other services reviewed here also have a law reform brief of one sort or another. While there is potential for the HL to take on some of the issues highlighted by the cases, this is not a direct outcome. As well, CLC has an interest as a service in law reform but little capacity to fellow up matters except through its Justice Innovation Centre (e.g. recent study of debt in the context of legal changes). The kind of model chosen may be similar to the Lewisburg Prison Project, where cases are built up as a result of particular instances. One area noticed in researching this evaluation was a number of instances where prisoners had had their medication or treatment regimes altered or suspended in prison.
While the PAS does not explicitly develop legal materials to support the service, like some Australian, US and English services, there are materials available, including the Lag Law publication, packets of material related to debt repayment and insolvency and various other materials. A series of fact sheets in the prison could markedly reduce the need for the clinics or, may increase the reach of the advice service, especially for underserved groups.
Despite receiving no funding at all, the PAS holds up well in comparison to international services due to the work done by both CLC and the HL. Although an almost entirely voluntary service, the services offered nearly always gain a response that can assist the clients to solve their problems.
6. Are there elements of the current model that need to be changed, and if so, what and how?
The main change that should be considered in terms of the current service is how the service may become more accessible to Māori people in prison. Options include changing the face of the service or advertising directly to Māori to participate in the service.
A second area to be considered is providing better pathways for the volunteers from CL and HL to gain educational tools and outcomes from their work in this field.
This may involve using CLC’s education service to offer a credentialled course on advice and advocacy for prisoners, or working with the University of Canterbury to achieve a similar outcome.
A third area might involve getting funding to run a pilot professionally-run telephone advice service for prisoners nationwide. From this evaluation it is plain that many prisoners face multiple legal and advocacy issues that they have not ability to pursue.
The HL may wish to consider keeping an explicit count of advocacy cases in order to note any particular trends. Other agencies, especially the Ombudsman and Prison Inspectorate may be interested in such trends.
7. Is the model replicable and, should it be replicated in institutions throughout Aotearoa?
This question can be considered in a number of ways. The first element that should be considered is whether this evaluation provides any evidence that services may be needed in other prisons. The answer is yes. People in prison have proportionately more civil legal matters to deal with than people not in prison. Where there is a prison population, there are likely to be a lot of civil needs that could be met if a service existed. Some of these may be met by other means, but it is likely a lot will be left incomplete.
One in five of the issues raised are around internal matters currently dealt with by the HL. Arguably a low-level resolution service is a better model for solving these problems than escalating matter up to the Ombudsman or even the Inspectorate. The difficulty is that in most centres the HL is not available.
The network of Community Law Centres is arguably by far the best positioned service to offer clinics in the prisons; indeed, it may be the only possible service. There are a handful of prisons that would be quite difficult to reach, and a number of others that are around 30-45 minutes from the towns and cities.
In terms of volunteers, only Auckland, Hamilton, Wellington, Christchurch and Dunedin have a ready supply of law student interns. A range of other centres have social science, nursing, other health professions and perhaps other young lawyers who might be interested in staffing face-to-face clinics.
In terms of the ability to run a national service, the network of Law Centres would have the capacity to run a funded service face-to-face, with some barriers and difficulties.
The other option to consider is moving to a primarily postal and telephone advice service, such as that offered by the UK Prisoners’ Advice Service, a UK registered charity, which could be run from one central site. The UK service is fairly lean financially and relies heavily on volunteers, trainees funded by other agencies and some fellowship positions. The funding received is from a mix of government and foundation funding, with some support from legal charities.
In conclusion, while an analysis of the Christchurch service has revealed a significant need that appears largely unmet in other areas, it is not clear what the best model would be for moving forward. It is clear that the government, Corrections, local trusts and perhaps solicitors need to offer support.
Conclusion
Despite evidence of need for access to civil legal advice in prison, there is no systematic approach to meeting this need in Aotearoa. Pressing issues such as debt penalties, unmet health needs, support for parole, family law in its many forms and other matters often lie unaddressed and worsening because prisoners can find no way to resolve these matters. It must be dreadful to be incarcerated and powerless to address deteriorating life factors outside of the prison.
The Prison Information Service, now PAS, was set up as a joint project by CLC and the HL Christchurch to address these needs on a voluntary basis. The service has now operated for seven years and has recently been strengthened by the adoption of a more lawyer-based model. The service has also expanded beyond Christchurch Men’s Prison to Christchurch Women’s, Rolleston and the Youth unit at CMP. It can expand no further without adopting a new model, perhaps based on phone services or mail.
The service is now run by a half-time solicitor as co-ordinator and other solicitors from CLC give advice, as well as volunteers from both organisations. A rough estimate of costs would see the service, fully costed within the CL budget, costing between $60,000 – 100,000. In addition, a large amount of the work of the HL part- time coordinator goes into responding to advocacy needs. Therefore, the work is absorbed into both organisations and not fully costed out. An idea that came from one stakeholder to pay volunteers for their time (as opposed to just their expenses). would see the costs balloon out further.
Each year, the service conducts around 250 interviews covering around 750 legal issues and advocacy needs. If extended nationally in roughly the same numbers, that would mean 3000 interviews and nearly 9000 issues. The advantages of a national rollout could be quite significant. If persistent issues such as debt, healthcare, family and internal matters were dealt with as they arose nationally, there is scope for both improved reintegration and reduced recidivism. From this perspective, prison should be a place that heals and resolves problems, not lets them lie to arise again later.
This study has not provided the tools to carry out a cost-benefit analysis of what a national expansion would cost, and certainly not what the opportunity cost would be of reducing the factors that lead to recidivism. Also, the barriers to further expansion are unknown. It might be possible to organise a trial of a telephone, or even a face-to-face, service at another prison, for example Rimutaka which has both a strong CL centre and an active HL branch.
Of the two organisations involved in the PAS – CLC and the HL - CLC covers legal advice and HL advocacy. In some of the literature there is a third function, which might be dubbed prison reform. From time to time in its history, the HL has been very involved in reform work. But at present, the HL in Canterbury is not involved in such work, tending to pass it over to the organisation called People Against Prisons Aotearoa (PAPA).
However, in Queensland in particular, the ability to take on cases that challenge the system is a function that has been funded by the State government, on the grounds that such legal challenges can clarify what the boundaries are and bring about needed change. Because of the lack of legal challenge to the Corrections system, except by a few parties such as jailhouse lawyer Arthur Taylor, and Waitangi tribunal claims in relation to Māori in prison, it has been up to the government to initiate reform, which has been happening over the past two years.
There needs to be a debate over whether the service has the independence to challenge the Corrections system, and whether it needs to (or has the capacity to) have that.
Bibliography
Cases
Sauvé v Canada (Chief Electoral Officer) [2002] 3 SCR 519.
Statutes
Corrections Regulations 2005. Crimes of Torture Act, 1985 Ombudsman Act 1975
United States Constitution.
New Zealand Bill of Rights Act 1990.
Books
Haami Piripi “Te Tiriti o Waitangi and New Zealand Public Sector” in Veronica Tawhai and Katarina Gray-Sharp (eds) Always speaking: The Treaty of Waitangi and Public Policy (Huia (NZ) Ltd, New Zealand, 2013).
Samantha Sowerwine “Prisons and Homelessness - Breaking the Cycle Through the Provision
of Civil Legal Services” (2014) 27(9) Parity 34.
Journal Articles
Laura K Abel and Max Rettig “State Statutes Providing for a Right to Counsel in Civil Cases”
2006 40 Clearinghouse Rev 245.
Alan W Houseman “Who are our Clients? What are the Emerging Legal Problems? What Do These Implicate for State Justice Communities? (Paper prepared for the LSC Client Conference, April 2001, reprinted in (2001)” (2001) Management Information Exchange Journal.
Diana Johns “Confronting the Disabling Effects of Imprisonment - Toward Prehabilitation”
(2018) 45(1) Social Justice 27.
Jillian Malizio “Access Denied - Sexual Victimization of Juveniles in Correctional Facilities -
How Senate Bill 585 Could Have Helped” (2010) 14 Rich JL & Pub Int 43.
Carolyn McKay “Human Rights in Closed Environments” [2015] SydLawRw 29; (2015) 37(4) Sydney L Rev 617. Franics Mitrou and others “Gaps in Indigenous Disadvantage Not Closing - A Census Cohort Study of Social Determinants of Health in Australia, Canada and New Zealand from 1981-
2006” (2014) 14(1) BMC Public Health 201.
Debra Parkes and others “Listening to Their Voices - Women Prisoners and Access to Justice
In Manitoba” (2008) 26 Windsor YB Access Just 85.
Pascoe Pleasence and Hugh McDonald “Crime in Context - Criminal Victimisation, Offending, Multiple Disadvantage and The Experience of Civil Legal Problems” (2013)(33) Updating Justice 1.
Ira P Robbins “Ghostwriting - Filling in the Gaps of Pro Se Prisoners' Access to the Courts”
(2010) 23 Geo J Legal Ethics 271.
Emily Shepard Smith “May It Please the Court - Law Students and Legal Research Instruction
in Prison Law Libraries” (2010) 29(4) Legal Reference Services Quarterly 276.
M. Smilowitz “What Happens After the Right to Counsel Ends - Using Technology to Assist Petitioners in State Post Conviction Petitions and Federal Habeas Review” [2017] 107(3) Journal Of Criminal Law & Criminology 493.
Department of Corrections Ara Poutama Aotearoa Prison Inspectorate Reports
Christchurch Mens Prison Inspection June 2018 (August 2019). Christchurch Women’s Prison Inspection May 2018 (July 2019). Manawatu Prison Inspection March-May 2017 (September 2017).
Mount Eden Corrections Facility Inspection January 2018 (May 2019).
Northland Regional Corrections Facility Inspection September 2018 (August 2019).
Otago Corrections Facility Inspection March 2018 (April 2019).
Rimutaka Prison Inspection October 2017 (April 2019). Tongariro Prison Inspection April 2018 (September 2019). Whanganui Prison Inspection September 2018 (August 2019).
Reports
Action Committee on Access to Justice in Civil and Family Matters Access to Civil and Family Justice - A Roadmap for Change (October 2013).
Australian Institute of Criminology Impact of the ‘Yes, I Can!’ Adult Literacy Campaign on Interactions With the Criminal Justice System (2018).
Bach Commission The Right to Justice - Final Report (September 2017).
Department of Corrections Ara Poutama Aotearoa Hōkai Rangi Strategy 2019-2014 (2019). Justice Connect Homeless Law Debt and Tenancy Legal Help for Prisoners - Twelve Month Project Report (January 2016).
Thérèse Lajeunesse Study of the Legal Services Needs of Prisoners in Federal Penitentiaries in Canada (Department of Justice Canada, July 2002).
Law and Justice Foundation of New South Wales Legal Assistance by Video Conferencing - What Is Known (2011).
Law and Justice Foundation of New South Wales Outreach Legal Services to People with Complex Needs - What Works (October 2009).
Law and Justice Foundation of New South Wales Reshaping Legal Services - Building On The Evidence Base (April 2014).
Law and Justice Foundation of New South Wales Taking Justice into Custody: The Legal Needs of Prisoners (July 2008).
Law Council of Australia The Justice Project - Final Report - Part 1 - Prisoners and Detainees
(August 2018).
New Zealand Bar Association Access to Justice - Āhei ki te Ture (2018).
Office of the Prime Minister's Chief Science Adviser Using Evidence to Build a Better Justice System - The Challenge of Rising Prison Costs (New Zealand, 29 March 2018).
Prisoners' Legal Services of New York Testimony before the Joint Legislative Hearings on the New York State Public Protection Budget for FY2019-2020 (2019).
Department of Family and Community Services Families of Prisoners - Literature Review on Issues and Difficulties (2003).
Standing Committee on Public Safety and National Security Indigenous People in the Federal Correctional System (Canadian Government, Canada, 2018).
The Canadian Bar Association Moving Forward on Legal Aid - Research Needs and Innovative Approaches (June 2010).
Other sources
Department of Corrections Ara Poutama
Aotearoa <https://www.corrections.govt.nz/working_with_offenders/prison_sentences/bei ng_in_prison/internet_and_mail.html>.
Department of Corrections Ara Poutama Aotearoa “Prison Facts and Statistics - March 2019”
(2019)
<https://www.corrections.govt.nz/resources/research_and_statistics/quarterly_prison_stati stics/prison_stats_march_2019.html>.
Department of Corrections Ara Poutama Aotearoa “Correspondence” (2019)
<https://fyi.org.nz/request/10058/response/34380/attach/13/Correspondence%20from%2 0Corrections%20C107066.pdf>.
Jane Garner “Experiencing the Use of Australian Prison Libraries - A Phenomenological
Study” (Thesis, RMIT University, 2017).
Community Law “Lag Law” (2015) New Zealand <https://communitylaw.org.nz/wp- content/uploads/2015/07/Lag-Law-2015-for-web.pdf>.
Prisoners' Legal Service Submission No 82 to Productivity Commission, Access to Justice Arrangements (2013).
NZLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.nzlii.org/nz/journals/NZLFRRp/2019/16.html