ESSEX PAPER 3: INITIAL GUIDANCE ON THE INTERPRETATION AND IMPLEMENTATION OF THE UN NELSON MANDELA RULES
The European Committee for the Prevention of Torture (CPT) considers that it might exceptionally
be necessary to delay for a certain period a detained person’s access to a lawyer of his choice, but
stressed, that this must not result in the denial of a lawyer. The Committee recommended, in such
cases, ‘access to another independent lawyer who can be trusted not to jeopardise the legitimate
interests of the investigation’. The Committee noted that it is ‘perfectly feasible to make satisfactory
arrangements in advance for this type of situation, in consultation with the local Bar Association or
Law Society’.188
The CPT has stressed that once such a ‘replacement lawyer’ has been chosen it ‘fails to see
any need for derogations to the confidentiality of meetings between the lawyer and the person
concerned’.189
Conditions of consultation
Rule 61(1) states that ‘Consultations may be in sight but not hearing’ of prison staff, and requires
access to legal representation ‘without interception’.190
The experts emphasised that consultations with legal advisers in full privacy, in a separate room,
should be the norm. In most cases the presence of a prison officer will neither be required nor
an efficient use of staff resources. Even if not listening, the presence of a prison officer may still
be intimidating and impact negatively on the conversation between legal adviser and prisoner.
The Rule clarifies that, if ever the presence of a prison officer is deemed necessary for security
reasons, it must not be within hearing (e.g. rooms should be designed so prison staff can observe
the consultation, but unable to hear the conversations inside). It should be noted that the safety
of the legal adviser is the only conceivable rationale behind the presence of staff, except for when
restrictions are required by a judicial authority (see above).
Where prison administrations seek to keep oversight for security considerations it could apply the
practice of multiple meetings in parallel in a large room with staff present in the distance (out of
hearing).
Decisions on limiting confidentiality is outside of the prison administrations’ mandate, but would
have to be taken by a judicial authority. Guidance can be drawn, for example, from the European
Prison Rules, which state that ‘A judicial authority may in exceptional circumstances authorise
restrictions on such confidentiality to prevent serious crime or major breaches of prison safety and
security’.
Confidentiality of legal correspondence needs to be ensured as well.
Access to legal documents
The experts discussed the relevance of Rule 53 which enshrines the right of prisoners to have
access to their legal documents ‘without access by the prison administration’.
CPT 21st General Report, CPT/Inf (2011) 28, para. 22, and CPT, Report to the Turkish Government on the visit to
Turkey carried out by the European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) from 16 to 17 January 2013, Strasbourg, 13 March 2014, CPT/Inf (2014) 7, para. 19.
188
CPT 21st General Report, CPT/Inf (2011) 28, para. 23.
189
European Court of Human Rights jurisprudence held that authorities cannot prevent prisoners contacting a lawyer, or
delay it. See Golder v The United Kingdom, Application no. 4451/70, 21 February 1975.
190
Penal Reform International and the Essex Human Rights Centre
| 54
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