ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES Rule 119(2) emphasises the need for pre-trial detainees to receive some form of legal advice, either through a legal adviser of their own choice or - failing this - one assigned to the detainee. The requirement to establish a legal aid system (‘without payment where the interests of justice so require’, see below) is addressed primarily to the legislator/ policy-maker. Should legal aid be denied, Rule 119(2) requires an independent review without delay. ‘Without delay’ recognises that the object and purpose of legal representation would be undermined if no speedy control mechanism were available. The safeguards and rights in Rules 119 and 120 apply during the pre-trial and trial periods, as well as during the appeal procedure (i.e. until the sentence becomes final). Access to legal advice overall While the obligation to establish legal aid schemes and review mechanisms must be fulfilled by legislators and policy-makers, the prison administration has a role to play in various regards. Specifically, it is required to: •  Provide information in an accessible, understandable way to the prisoners about their rights (Rule 54(b)) •  Facilitate access of prisoners to legal aid schemes (see requirement of ‘access’ to legal aid in Rule 61(3)) •  Ensure physical access, ‘without delay’, to the legal adviser of choice and/or legal aid provider and provide the ‘opportunity, time and facilities’ for prisoners to be visited by and communicate with their legal representatives (Rule 61(1))179 •  Refrain from interception or censorship and allow confidential communication (Rule 61(1) •  Provide the prisoner with writing material for their defence (Rule 120(2)) •  Allow the prisoner possession of legal documents (Rule 53) •  Facilitate access to the services of an independent competent interpreter (Rule 61(2)) •  Ensure prison facilities have the necessary visiting rooms which provide the confidentiality required.180 The Essex group emphasised the importance for the lawyer to be in the direct physical presence of the prisoner, as pointed out by the CPT, for example. Participants also pointed to the requirement of privacy of such consultation, as otherwise the ‘detained person may well not feel free to disclose the manner in which he is being treated’.181 The supportive role of prison administration in prisoners’ access to legal advice is outlined in the Commentary to the European Prison Rules as encompassing assistance ‘with writing materials to See also Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, Principle 17; Basic Principles on the Role of Lawyers, Principle 8; UN Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, 23 August 2007, CCPR/C/GC/32, para. 34. See also Vivienne O’Connor and Colette Rausch (eds.), Model Codes for Post-Conflict Criminal Justice: Volume II: Model Code of Criminal Procedure, United States Institute for Peace, 1 October 2008, Chapter 4: ‘Rights of the Suspect and the Accused’, Article 70. 179  On the role of prison staff in ensuring confidentiality see also Council of Europe, Commentary to Recommendation Rec(2006) 2 of the Committee of Ministers to Member States on the European Prison Rules, pp. 910 (Commentary on Rule 23, with reference to jurisprudence of the European Court of Human Rights) (Commentary to EPR). 180  CPT 21st General Report, CPT/Inf (2011) 28, para. 23. 181  Penal Reform International and the Essex Human Rights Centre | 51