Access and contact with lawyer

Key Elements

Ensuring that all detainees have prompt access to a lawyer is a key safeguard of their rights in prison, whether they are in pre-trial detention or convicted of an offence. In addition to assisting criminal suspects to prepare their defense, the right to access a lawyer can help protect detainees’ rights by:


· Redressing the power imbalance between detainees and the authorities,
· Assisting the detained person in understanding and exercising their rights,
· Acting as a deterrence against torture and other ill-treatment; and
· Reducing the risk of arbitrary detention.


Prison authorities are responsible for providing adequate opportunities, time and facilities for detainees to be visited by, and confidentially communicate and consult with, a lawyer of their choice or one appointed to them by the state.

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Analysis

Access to a lawyer as a safeguard against ill-treatment

A number of international and regional standards provide that persons deprived of their liberty should have prompt and regular access to a lawyer. This is a key safeguard of rights in detention. As the United Nations Subcommittee on Prevention of Torture (SPT) notes, access to legal representation throughout the whole imprisonment period is essential both to protect “the inherent rights of detainees relating to detention regime and conditions, (which include such matters as access to adequate food and lodging, visits and access to services) and exposing detainees to further information about their detention and means of enforcing their rights” (Discussion on the Standard Minimum Rules for the Treatment of Prisoners, 2013). All detainees, whether sentenced or in pre-trial custody, should thus have access to legal representation.

 

Right to a lawyer for persons in pre-trial detention

Given the vulnerability of persons in the early stages of detention, in the prison context the right to access a lawyer is particularly important for pre-trial detainees and is broader than assisting the detained person to prepare their defense. Lawyers are often a detainee’s only contact with the outside world. They can see the physical condition of the detainee and advise them on exercising their rights, including challenging the detention if it is arbitrary. Ensuring access to a lawyer is therefore important for transparency, protecting rights, reducing the risk of arbitrary detention and as a deterrent for abuse in these early stages.

“Prompt” access to a lawyer

Detainees should be given the opportunity to contact and meet with a lawyer as soon as possible after deprivation of liberty. A number of expert bodies have recommended this should be ensured “from the outset” or “actual moment” of deprivation of liberty. The UN Special Rapporteur on Torture has recommended a time limit of 24 hours. In any case it should be granted within no more than 48 hours after deprivation of liberty.

Information on access to a lawyer

Prison admission procedures should ensure that detainees are informed about their right to access a lawyer, in a language they understand, upon arriving at the prison. If the detainee does not have a lawyer, they should be given the opportunity to contact one free of charge and/or informed of how they can have one appointed to them. Detainees who already have legal counsel should be informed of how they can contact, meet and communicate with their lawyer.

Choice of lawyer

Detainees should be entitled to contact and appoint a lawyer of their choice. If the detainee does not know a lawyer, the prison authorities should arrange for one to be appointed by a judicial or other competent authority (it is not enough for the authorities to merely allow lawyers to access the prison). Ideally such a lawyer should be selected from a roster maintained by the local bar association (or equivalent). The lawyer must be of “experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance” (BP 6). Some jurisdictions recognise the right of detainees who have been assigned a lawyer to apply for a change of lawyer (for reasons such as incompetence or bias).

Legal aid

If a detainee does not have the sufficient means to pay for a lawyer, they should be provided with one free of charge. This requires a functioning legal aid or public defender system, where effective legal representation is provided by a state agency with functional independence, budgetary autonomy and sufficient human and material resources. In practice, in many countries legal aid systems either do not exist or they do not function properly. Lawyers may not be sufficiently independent from the authorities and/or not actively seek to represent the interests of their client (for example, not seeking to meeting with the client in preparation before a hearing).There may also be an insufficient number of lawyers with the necessary experience or competence. In such cases, the authorities may need to make provisional arrangements, for example, relying on paralegals to provide legal assistance, while the legal aid system is being developed.  Governments may also use contractual lawyers, to provide legal representation on an affixed fee basis.

Meetings with lawyers

Prison authorities should provide adequate opportunities and facilities for detainees to meet with a lawyer, without delays or unjustified time limits. The facilities should allow detainees to meet with their lawyers out of hearing of prison staff, although the visits may be in sight of staff (for example, staff may observe through a glass panel). Detainees should be able to hand to their lawyer confidential instructions – this means that they should be provided with writing material. Detainees should also be allowed to have access to or keep with them materials related to their legal proceedings.

Confidential communication with a lawyer

Detainees should be able to communicate freely with their lawyer, without delay, interception or censorship. Communications between detainees and lawyers must be confidential i.e. letters between them should not be opened; telephone calls should not be monitored.

Restrictions on right to access a lawyer

The right to confidentially consult, communicate and meet with a lawyer may not be suspended or restricted save in “exceptional circumstances”. These circumstances must be specified in law or lawful regulations (for example, some domestic regimes allow restrictions on access to a lawyer where an ongoing investigation may be jeopardised or where public safety is at risk). Restrictions must be approved as indispensable for the justified purpose in the individual case, preferably by judicial authorities (or other competent authorities). In any case, confidential communication shall not be denied for more than a matter of days.


In some jurisdictions, if the authorities have a legitimate reason to suspect that confidential mail between a detainee and their lawyer are being used to send illegal or dangerous items, they may open correspondence in the presence of the detainee to check the contents. However, the authorities should under no circumstances read the correspondence.


Any restriction on the right to access to a lawyer must not circumvent the protection of non-derogable rights, even in exceptional circumstances. So, safeguards including the right to access to a lawyer cannot be restricted to such an extent that torture or other ill-treatment (a non-derogable right) would be facilitated. The UN Special Rapporteur on Torture (2003) has recommended that where restrictions on accessing a lawyer are judicially approved because of genuine security concerns, the detained person should be allowed to meet with an independent lawyer, for example one recommended by the local bar association.

Access to a lawyer in the execution of sentence

Detainees serving a sentence should be able to access a lawyer to ensure due process and the protection of their rights in the execution of their sentence. Lawyers can assist detainees serving a sentence to understand their rights and challenge aspects of their conditions and treatment in detention, including through complaints mechanisms and proceedings before judicial and other authorities. Legal representation can be particularly important for detainees in serious disciplinary proceedings. As the United Nations Subcommittee on Prevention of Torture (SPT) has noted, proceedings arising from situations in prisons can require specialised legal expertise different from skills required for criminal defense.

women
foreigners
disabilities
minorities
children
Right of persons in situations of vulnerability to access a lawyer

Persons in situations of vulnerability have the same right to access a lawyer as other detainees in prison. It is particularly important that such persons have effective legal assistance, as they may face a heightened risk that their rights are not respected. At the same time, they may face barriers accessing a lawyer in practice. Prison authorities should therefore pay attention and take specific measures where necessary to ensure that such persons are able to access this right effectively.

children

Children can be particularly vulnerable in detention and often have less understanding of their rights and legal procedures than adults. Prison authorities should ensure that children and their guardians have their right to access a lawyer clearly explained to them. The best interests of the child can be best guaranteed if lawyers have expertise in communicating with and representing children, including those in detention, and knowledge of other support services available to them. Children should have access to legal aid that is age-appropriate, multi-disciplinary and responsive to their specific legal and social needs.

disabilities

Prison authorities should ensure that persons with mental or physical disabilities have the same access to a lawyer as other detainees. There should be no architectural barriers hindering the ability of detainees with disabilities to meet with their lawyer. Prison authorities may need to provide auxiliary devices to facilitate effective communication between detainees and their lawyer (for persons with hearing, visual or speech impairment). Persons with learning or mental disabilities may need extra assistance in understanding their right to access a lawyer and arranging legal representation.

foreigners
minorities

Foreign nationals, persons belonging to minorities and indigenous groups may face challenges exercising their rights in detention due to language barriers and a lack of knowledge of legal and administrative procedures. It is thus important that they have access to a lawyer, but they may face barriers in exercising this right. Prison authorities should clearly explain this right to them in a language they understand. Bar associations and legal aid providers should seek to ensure the availability of lawyers who speak minority languages in the country. Where a person cannot speak the language of a lawyer appointed to them, interpretation services should be made available. Foreign nationals should be informed of their right to consular assistance – this may be able to assist in arranging legal representation.

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Questions for monitors

Are detainees who arrive in prison informed of their right to access a lawyer and process for going about this?

Are detainees given the opportunity to contact a lawyer free of charge if they do not have one?

If detainees do not have or know a lawyer, are they appointed one by the authorities?

Are detainees who do not have the means to pay for a lawyer appointed one free of charge?

Where legal representation is provided/appointed by the authorities, is it of sufficient quality and independence? Did the lawyer visit the detainee in prison to meet with them?

Are there adequate facilities and opportunities for detainees to meet with their lawyer out of hearing of prison staff, without delays or unjustified time limits?

Are detainees able to communicate freely and confidentially with a lawyer?

Are there exceptions to the right to confidentially consult communicate and meet with a lawyer? Are these specified in laws or regulations with proper safeguards?

foreigners
minorities

Are detainees able to access a lawyer that speaks their language? If not, are interpretation services available?

disabilities

Do persons with disabilities have the same possibility of accessing a lawyer as other detainees?

children

Do children have effective access to a lawyer?

children

Do prison authorities ensure that the right to access a lawyer is clearly explained to children and their guardians?

children

Are lawyers representing children experienced in communicating with and advising children, including those in detention?

children

Is legal aid provided to children age-appropriate, multi-disciplinary (coordinated with other children’s services) and responsive to their specific legal and social needs?

Do convicted detainees have access to a lawyer if they request/need? Are there lawyers available with expertise in proceedings relating to situations in prisons?

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