Yesterday I wrote about the lead up to a prison adjudication. Today I’ll focus on the hearing preliminaries.
At the hearing itself the prisoner is told to stand in front of the governor and give their name and number before taking a seat. This is a relic of the old school prison system but is a traditional one which is not likely to change any time soon. The reporting officer will sit to the left of the governor, and the senior adjudications officer to his right. At least two further officers will usually sit behind the prisoner in case they become aggressive.
The officer who made the report is not meant to enter the room until the prisoner is present, and the prisoner’s prior record should not be in the room unless and until they have been found guilty. This is to prevent the governor from discussing an allegation or checking the prisoner’s record and biasing their judgement. This is vitally important as any governor who is unable to conduct the hearing impartially is expected to adjourn the hearing and make arrangements for someone else to hear it instead. However, in practice both the reporting officer and the prisoner’s record are often already in the room when the prisoner enters and I have never known the adjudicator to admit to being biased. At one adjudication I faced myself I pointed out that my core record should not be in the room and the governor replied that it wasn’t. I then pointed at the bright orange file in front of him which had my name and the words ‘Core Record’ written across the front of it and he just smiled and said: “Well yes, but I haven’t read it!” I asked for an alternative adjudicator but, predictably, my request was denied.
When the initial hearing is opened the governor must consider whether the charge is serious enough to refer it to the police. All serious assaults must be referred, but any other charge is at the discretion of the governor. If the charge is referred then the adjudication will be adjourned for police investigation. In some cases the police will decline to investigate, in others they will investigate and decide to take no further action, and in a few it will lead to a prosecution. If, at the end of any of those three options, no further action is taken against the prisoner, the adjudication can be reactivated. However, it can only continue if the adjudication will not rely upon the same evidence which was considered by the CPS prior to deciding not to prosecute. Since the CPS will consider all evidence, it is near impossible that such an adjudication could be rightfully resumed. In most cases, the prisoner is simply not called up for another hearing and eventually gets told that the adjudication was dismissed. However, if the prisoner is prosecuted then the case becomes one of criminal law and the adjudication is void.
If the governor decides not to refer the charge to the police then they can refer it to an independent adjudicator as an alternative. The independent adjudicator is usually a magistrate who has the power to add days to the prisoner’s sentence, but they also tend to be much fairer when considering the evidence so if you are truly guilty then this is something you definitely don’t want, but if you are really not guilty at all then you should always prefer an independent adjudicator to the governor. I have been placed on report for things I did not do five times since progressing from young offenders to the adult estate and I have requested an independent adjudicator every single time. However, it has also been refused each time. It used to be the case that life sentenced prisoners could not be referred to the independent adjudicator since you cannot add days onto a life sentence. However, this changed following a court case in 2009. The only problem is, governors do not tend to refer cases to the independent adjudicator for the prisoner’s sake – in the interests of independence. They do it only to maximise the punishment that can potentially be awarded. Since this does not apply to lifers, governors ignore the 2009 ruling and continue to insist that cases involving life sentenced prisoners are heard by themselves instead.
If the case is referred to the independent adjudicator then it must be adjourned and heard by them within 28 days. If it is later decided that the case was referred incorrectly, the adjudication has to be dismissed. It cannot return to be heard by a governor.
If the charge is not referred to the independent adjudicator then the governor will continue the hearing. They will ask if the prisoner understands the charge and if they require assistance. Strictly speaking this is asking if the prisoner needs an interpreter, a disability aid, or someone to read the charge sheet to them, etc. However, I would always recommend that the prisoner asks for legal advice and representation at this point as it is the only chance to ask for this until after the prisoner has been asked to enter a plea. Next the governor will ask if the prisoner received the adjudication papers at least two hours before the hearing and if they have had enough time to prepare. The prisoner may then submit a written statement if they have made one. I always submit a written statement so that if the adjudication goes against me and I decide to appeal it or to judicially review it there can be no argument about the evidence I gave. I began doing this after one governor refused to allow me to view CCTV evidence which would have proved my innocence and when I took this to judicial review the judge said there was no proof that I had asked for it because the governor had not written down my request and I had not submitted it in writing. Everything I intend to say at the hearing now gets submitted on paper too.
The next stage is for the governor to reconfirm that the prisoner is fit to proceed with the hearing and then they ask for your plea. However, there is no guarantee that the governor will be more lenient if you plead guilty in the same way that a judge would be and in my experience they usually are not so I would always recommend pleading not guilty as a guilty adjudication can count against you for years and damage your prospects of such things as parole applications. It is much better to contest the adjudication on the off chance that you may be found not guilty. I learnt this by sheer accident when I was on adjudication for fighting after I came to blows with another prisoner who had threatened a female teacher. Another teacher had heard the commotion and had to place both of us on report and, given that I had done it, I pleaded guilty. When it came to questioning the governor asked this teacher if she had actually seen me thrown a punch and she said that she hadn’t. In closing the governor told me that he was aware of my reasons for fighting and that although I had done the wrong thing I had done it for the right reasons. He said that he was disappointed that I pleaded guilty because, given that the teacher saw nothing herself, if I had not done so he would have had to dismiss the adjudication. However, because of my plea he had to find me guilty. Hence a not guilty plea is always the wisest one. It can do no damage and may even prevent unnecessary harm.
After entering a plea the prisoner can ask for any witnesses they wish to call. However the rules state that this is at the governor’s discretion as it would not be recommended to have a long list of witnesses who each would present the same evidence, adding nothing new of relevance. In practice this is often abused by more biased governors who I have seen refuse witnesses on the grounds that they claim the witness is irrelevant when in actual fact they were the only person present other than the reporting officer and the accused. The implication is that they are not relevant because they are a prisoner and even if they back up what the accused says, the word of two prisoners is still not worth the word of one officer.
Following this, the prisoner is asked if they require legal advice, legal representation, a McKenzie friend, or other such help. Legal representation is a right in adjudication before the independent adjudicator, but at the governor’s discretion otherwise. It is rarely granted as no governor wants to invite a solicitor into the argument unless they have to, but even when it is granted legal aid is not available when it is before a governor anyway, so this would be useless to most prisoners. Legal advice is usually granted however and when it is the adjudication is normally adjourned for two weeks so that the prisoner can discuss their defence with a lawyer. A McKenzie friend is any person, usually a layman, who can assist the prisoner during the hearing. They are not allowed to talk on behalf of the prisoner but can help them understand proceedings and advise them on the rules. If any of these things are requested then they are considered on a set list of criteria called the Tarrant criteria which includes such things as the seriousness of the charge, whether any points of law are likely to arise, and the capacity of the prisoner to present their own case. It never works, but I have always argued for legal representation on the grounds that points of law are likely to arise and then, when asked what points of law, said that I don’t fully know or understand so it’s hard for me to say. That’s why I need representation. I think it’s a pretty good argument but no governor has ever been convinced by it.
At this point in the hearing the ‘trial’ begins. More on that tomorrow.