ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES Right to defence The Essex group discussed Rule 41(3), requiring an opportunity for prisoners to defend themselves in the case of an allegation of a disciplinary nature. They may do so themselves or through legal assistance (see below). The experts considered that the right of prisoners to defend themselves ‘in person’ should be interpreted as that person having the opportunity to appear in front of, and be heard by, the decision-making body. Should the prisoner not understand the language used in such hearing, an interpreter needs to be made available free of charge (Rule 41(3)). Legal assistance Rule 41(3) provides that detainees may want to defend themselves through legal assistance and specifies that such should be possible ‘when the interests of justice so require’. This applies ‘particularly in cases involving serious disciplinary charges’. The Essex group considered that every allegation which can be prosecuted by judicial authorities ipso jure constitutes a ‘serious disciplinary charge’, but that the term is not limited to such offences. Other factors have to be taken into account when determining whether disciplinary charges are ‘serious’. The Essex group considered that the following are examples of such situations: •  in particularly complex cases •  if the applicable law or prison regulation is not clearly worded •  if the prisoner lacks the capacity to understand the process or the accusation against him/her or the ability to defend him/herself •  where infractions could lead to serious collateral consequences for the prisoner (e.g. removal of eligibility for parole or early release) •  where the disciplinary sanction would result in a material change in the conditions of imprisonment (e.g. transfer to solitary confinement; transfer to a high security prison). Judicial review Rules 41(4) set out the right of prisoners to seek judicial review of disciplinary sanctions imposed on them. The Essex group pointed to the particular relevance of this right for serious forms of punishment (see above). Rule 41(5) clarifies that criminal procedural standards and due process rights apply should an act in prison be prosecuted as a crime within the regular justice system. This provision intended to ensure that the fair trial rights enshrined in the International Covenant on Civil and Political Rights (ICCPR) and other respective treaties are not undermined by the formulation of disciplinary offences. The Nelson Mandela Rules call for ‘unimpeded access to a legal adviser’ in such cases. The right to appeal to a competent impartial authority has also been enshrined explicitly in Rule 70 of the Beijing Rules. The CPT has incorporated a similar recommendation in their standards, calling for the right of appeal at a ‘higher authority’ and the ability to ‘contest the measure before an appropriate authority’.298 CPT 2nd General Report, [CPT/Inf (92) 3], para. 55. 298  Penal Reform International and the Essex Human Rights Centre | 83