Inmate wins test case on right to a lawyer

Prisoners being disciplined are now able to get legal representation at their hearings after the Court of Appeal allowed the test-case appeal of a Christchurch inmate.

Prison regulations state that prisoners cannot have lawyers represent them when prison authorities bring internal disciplinary charges.

Andrew Lawrie Drew, an inmate at Paparua Prison, had tested positive for a chemical that indicated heroin use. He denied it and said a combination of legal substances had caused the test result.

The prison authorities disagreed and so did a visiting judge who heard the appeal. Drew was punished with a week's cell confinement, a month's loss of privileges and the addition of a week to his final release date in January 2003.

His lawyer told the Court of Appeal that the regulations stopping lawyers representing inmates on disciplinary charges were outside the law because the Bill of Rights guaranteed representation and overrode the regulations.

Justice Blanchard, delivering the judgment of the court, allowed the appeal and quashed the penalties on Drew. He also awarded him $10,000 costs.

Justice Blanchard said the ability of an inmate to put forward an adequate defence to a charge was relevant because an immature or intellectually dysfunctional inmate might have difficulty mounting even a simple defence.

Drew was a mature person of at least average intelligence and yet he had no idea how to question a witness.

Justice Blanchard said the Attorney-General had not been able to satisfy the court that there were protections in place to ensure a fair hearing when an inmate could be at risk of substantial penalties.

He said that without legal representation inmates were out of their depth and their right to cross-examine witnesses was effectively denied.

The visiting judge should not have denied Drew a lawyer simply because a regulation said he could not have one at the hearing, Justice Blanchard said.

Instead, the judge should have considered whether natural justice required that Drew be represented.

Justice Blanchard said it would probably be rare for a prisoner to need a lawyer in a hearing before the prison superintendent.

If an inmate appealed the superintendent's ruling, the visiting judge would decide if the inmate needed a lawyer.

He said administrative difficulties or inconvenience alone were not enough to deprive an inmate of a fair hearing.

The Crown had expressed concern about the length of time it would take to hear a case if a lawyer got involved.

The court heard that in the 12 months to June 30 last year there had been 2876 positive drug tests, from which 2600 internal drugs charges were likely to result.

The Council for Civil Liberties said it was delighted with the decision.

Council secretary Michael Bott said the right to have representation was founded on natural justice and was of special importance because on its face, the Penal Institution Regulations prohibited a right to representation.

- NZPA