Imprisonment restricts a person’s liberty, but it does not place them beyond the protection of the law. People in custody retain legal rights, although the exercise of those rights is subject to legislation and lawful prison restrictions.
Access to legal advice, fair procedures and appropriate treatment remains important throughout a person’s time in custody.
In Muir v The Queen (2004) 78 ALJR 780; 206 ALR 189; [2004] HCA 21, Kirby J emphasised the humanity of people in prison and the importance of equality before the courts.
At paragraph [25], his Honour stated:
“Prisoners are human beings.”
He went on to explain that losing liberty through imprisonment did not mean losing human dignity or equality before the law.
These observations arose in proceedings concerning an unrepresented prisoner’s application to appear before the High Court to make oral submissions supporting an application for special leave to appeal.
The passage expresses an important principle. However, it should not be read as establishing that prisoners retain every freedom without restriction or have an automatic entitlement to attend every court proceeding personally.
The rights available to a person in custody depend on the applicable law, their circumstances and the decision or treatment in question.
In NSW, relevant rights and avenues for assistance can include:
The procedures, restrictions and eligibility requirements differ between these matters. Legal advice can help identify the correct process.
A person’s legal issues do not necessarily end when they enter custody. They may need advice about ongoing criminal proceedings, a conviction or sentence appeal, parole, or a decision affecting their imprisonment.
People in prison may also face practical difficulties obtaining documents, communicating with others and meeting legal deadlines. Identifying an issue early can help a lawyer assess the available options and any time limits.
Access to a lawyer does not guarantee that a challenge will succeed. It provides an opportunity to understand the law, assess the evidence and decide whether further action is available.
Some decisions affecting people in custody can be reviewed or challenged through a specified process. Depending on the matter, this may involve an internal review, a specialist body, a complaint mechanism or court proceedings.
The appropriate avenue depends on the nature of the decision and the legal requirements. Not every disagreement with prison management provides grounds for a court challenge.
Keeping relevant documents, recording dates and obtaining advice promptly can assist in assessing the position.
Prisons operate under security and management requirements. Those requirements do not remove the importance of lawful treatment or accountability.
Concerns about safety, healthcare, discrimination or mistreatment should be considered through the appropriate legal and complaints processes. A lawyer can help identify whether the issue requires criminal, civil or specialist prison-law advice.
Kirby J’s observations in Muir remain a reminder that people in custody are individuals whose legal interests deserve proper consideration.
If you or a family member is in custody and needs advice about a criminal matter, George Sten & Co can discuss the circumstances and identify the assistance required.
Our criminal defence lawyers can advise on criminal proceedings and available appeal options. Where a concern falls outside our criminal law practice, we can discuss whether specialist advice is needed.
Call 02 9261-8640