December 2022 marked 10 years since the adoption of the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, which called on states to ensure that a comprehensive legal aid system is in place that is accessible, effective, sustainable and credible. This includes ensuring people in prison have access to legal aid for filing requests relating to their treatment and the conditions of their imprisonment, among other matters.
People in prison have diverse legal needs including civil and family law and regarding their treatment (prison law), such as disciplinary charges. However, state-funded legal aid for matters beyond someone’s criminal case is generally not provided. Legislation in many jurisdictions limits legal aid solely to ‘serious disciplinary charges’ or matters relating to release conditions. Issues such as transfers to higher levels of security, solitary confinement or segregation/ separation, sentence planning and calculation and appeals of decisions in these issues are common matters that have serious consequences in some cases but are typically not applicable for legal aid.
Even where legal aid systems exist and may provide legal aid services in prison, there is a lack of meaningful funding or prioritisation of the needs of people in prison.
This point was made in a study in Canada in 2002 for the Department of Justice Canada which provides a rare insight into legal aid for people in prison. It concluded that the wide legal needs of people held in federal penitentiary facilities in the country were not being met, primarily due to limited financial and human resources for legal aid services, also noting that eligibility criteria are based on the kinds of legal matters faced by the general population.
Even where legal aid systems exist and may provide legal aid services in prison, there is a lack of meaningful funding or prioritisation of the needs of people in prison. The Global Study on Legal Aid published in 2016 found that, although many countries recognise the right to legal aid for accused persons who cannot afford a lawyer, in practice, many poor and vulnerable accused persons are unable to exercise their right to effective legal representation. There is also a high demand for legal aid in civil, family law and administrative cases that is not being met.
Where legal aid services are available, there is often serious concern about their quality.
In 2022, the Council of Europe reported that across 49 jurisdictions while there was a ‘steady but uneven increase’ in spending on the judicial system between 2010 and 2020, on average only 9.5% was spent on legal aid (compared to 66% of budget being allocated to courts and 24.5% to prosecution authorities). Outside of Europe, from information that is available publicly, it is clear that the provision of legal aid for people in prison is poor and that the limited financial resources available have been further stretched with strains from the COVID-19 pandemic and economic crises in many places.
Where legal aid services are available, there is often serious concern about their quality. The UN Global Study on the topic documented that people’s lack of confidence in the quality of legal aid is one of the most significant challenges faced by poor and vulnerable groups who need it.
Where state legal aid systems are not reaching people in prison, civil society frequently fills the gap in legal aid services or supplements the state-funded legal aid services. Across Africa and in other regions, NGOs are sometimes the sole provider of legal aid to people in prison. In the Central African Republic, legal aid is virtually non-existent except for provision by civil society who provide legal assistance to detainees, albeit limited in number. For instance, in 2022 and 2023 legal aid provided by PRI’s partners will likely benefit less than 100 detainees in Bangui, falling short of meeting the great need in the capital let alone in other parts of the country. In Afghanistan, before the Taliban takeover in August 2021, the International Legal Foundation was the largest provider of criminal legal aid services, surpassing that provided by the government’s legal aid system.
University law clinics have also served as a means of providing legal aid in prisons.
Patchy provision of legal aid in prison has led to the development of innovative solutions in all parts of the world. Paralegal schemes have become an increasingly common way of expanding legal aid services, for example in Malawi where the Paralegal Advisory Service was established in 2000 as an initiative of PRI. Aside from contributing significantly to the reduction of pre-trial detention rates, research on the costs and benefits of the scheme in Malawi, and a similar one in Uganda, shows that as little as around $20 was spent to prevent the detention of one individual (equivalent to 2 weeks in prison) and that wider criminal justice reforms can be credited to the schemes. However, despite the many benefits of paralegal programmes, many lawyers and bar associations around the world have been resistant to allowing paralegals to provide any legal services, limiting access to legal aid for in prisons — and particularly in rural or low resourced areas.
University law clinics have also served as a means of providing legal aid in prisons. Recent success stories have been documented in India where law students have acted as facilitators between detainees, prisons and legal institutions. In 2021 in Nepal, with the help of law students from a number of universities, the Public Defender Society interviewed every child imprisoned to assess their diverse legal needs and conditions of detention. In Canada, students of a prison law clinic have had a high success rate in cases heard in the Federal Court of Canada, seeing decisions by corrections authorities being quashed. An award-winning programme in the Netherlands that has been running since 2002 connects students with detainees once a week to provide information and advice on a range of topics from housing post-release to criminal case matters.
Efforts have been made to tackle the problem of a general lack of specialised and targeted legal aid for specific populations detained such as women and children.
There are also a growing number of ‘jailhouse lawyer’ programmes which involve training and empowering people in prison to be their own advocates, or advocates for their peers. In Pakistan, for example, a programme established in 2017 runs on a peer-training model and around 6,500 people in prison had been trained as paralegals in a four-year period. In England, the charity St Giles Trust developed a peer advisor programme in which detainees work with law students to be trained on an area of legal knowledge most relevant and useful to the prison population so they can assist their peers.
Some efforts have been made to tackle the problem of a general lack of specialised and targeted legal aid for specific populations detained such as women and children. For example, in Chile, an agreement between NGOs, the public defenders’ offices and the gendarmerie in charge of prisons is paving the way for legal assistance for people detained, particularly in civil and family matters, and around 40 women have received advice on issues regarding divorce, child support and child protection matters. In Sierra Leone, the NGO AdvocAid has provided legal aid to more than 6,000 women and girls in conflict with the law over a 15-year period since its establishment in 2006.