Prison Adjudications: Part Three

After covering the pre-hearing process and the hearing preliminaries over the last two days, today I’ll be finishing off the ‘trial’ and ‘punishment’ process.

When the adjudication proceeds the reporting officer will read out their evidence from the notice of report and then the prisoner should have an opportunity to question them about it. Unless they are being confrontational this should be done directly but I was once on an adjudication where I had not even got my first question out before the governor insisted that I put the questions to him first and he would put them to the officer. When I did this the governor simply answered the questions on behalf of the officer without even putting them to him. But still he insisted that he was not biased.

The witnesses against a prisoner can then be called upon to give evidence and to be questioned in the same way, one at a time, and the reporting officer may also ask some questions. Then, if there is any, the physical evidence can be produced. This might include CCTV recordings or any unauthorised items the prisoner is alleged to have had, leading to the adjudication.

Next, the prisoner can put their defence forward, verbally or in writing and any witnesses in support of the prisoner can be called and questioned.

Then the governor comes to a verdict. If they find the allegation proved beyond reasonable doubt (and not just on the balance of probabilities) then they should find the prisoner guilty. Otherwise they should dismiss the charge. If the governor cannot come to a conclusion or if, at any point during the adjudication, it becomes impossible or unfair to continue (such as if a vital witness has been released, the case has been adjourned for longer than six weeks in total, or the notice of report is significantly flawed) then the charge should be listed as ‘not proceeded with’.

The prison discipline manual lists each and every charge which a prisoner might face with standards of proof for each one. Interestingly, it is these standards which are the most important thing to a prisoner having a charge dismissed. They may well be in the right but if they do not frame their defence around standards of proof for the charge in question then they will probably be found guilty anyway. For example, I once acted as a McKenzie friend for someone who had language difficulties. He had been placed on report for ‘disobeying any rule or regulation’ which is designed to be a catch all for things which do not fit into other, more specific charges. The standard of proof states that the rule the prisoner is accused of disobeying does not even have to be a written rule, so long as it is one which the prisoner can safely be said to have been aware of. This might make it seem like an easy offence to prove but that is not so. The prisoner in question was accused of booking out a knife to use in the kitchen and then letting another prisoner use it, which was against the rules. This only came to light because the other prisoner ‘lost’ the knife and there was a full lock-down for staff to search for it. At the hearing we gained exceptional permission for me to speak on his behalf on the grounds of language difficulties. I asked the reporting officer specifically which rule he had disobeyed and she confirmed that it was that he allowed another prisoner to use a knife booked out in his name. I then asked if prisoners ever returned items to the office which were booked out to other people. She said that they did. Finally I asked if prisoners are ever reprimanded for doing this. She said no, they weren’t. So I said that if prisoners have always been allowed to return items to the office which were booked out by other people it is understandable that they would think they are allowed to let others use items that have not been booked out in their name and unreasonable to expect them to know that this isn’t allowed only once something goes missing. The standard of proof required the governor to show that the prisoner knew they were breaking a rule. In this case he couldn’t do that, so the adjudication was immediately dismissed.

Every charge in the manual has a clause like this. Some people see them as loopholes. I see them as fair play. The rules are written as they are for a reason. If you know what those rules are and you keep within them then I see nothing wrong with using those rules for your own defence if you are ever put on report for something which is not your fault. However, some governors don’t like being told what the rules say. I was even threatened by a governor during an adjudication once when he said “If you carry on reading from that [the prison discipline manual] I’m going to hold the hearing in your absence!” Of course, if he had been keeping to the rules as set out in the manual itself he would not have been so bothered, but he just didn’t want to be told that he wasn’t king of the castle. He found me guilty.

And when a prisoner is found guilty then the governor must consider what punishment would be appropriate. However, first the prisoner (and any representative present) will be asked if there is anything they wish to say in mitigation. I would avoid this though since, after being found guilty of one adjudication which I was in fact not guilty for, I said that “I didn’t do what you’ve said, but if I had done you can see from my record that it would have been out of character. Not the sort of thing I usually do.” When I later appealed this adjudication it was argued that my mitigation actually amounted to an indication of guilt, because if I wasn’t guilty then there would be nothing to mitigate. Personally I think that is crazy logic but I don’t run the place.

Next the senior adjudications officer reads out the prisoner’s adjudication record and reports on conduct from wing staff and the prisoner should be able to question the authors of these reports. However, in practice the authors of the reports are never at the hearings or available for questioning and the reports are taken as gospel. That said, they are never very detailed and there is rarely enough in them for anything to be too drastically wrong.

Finally the punishment must be decided upon. Each establishment should have a local punishment guidelines document which shows what punishments are likely to be imposed for each charge but governors can adjust the punishment higher or lower than those set out in the guidelines as long as they don’t go over the maximum specified in the national rules of the discipline manual. The punishment could be a caution, forfeiture of privileges such as TV, canteen, pay, or association time, exclusion from work, extra work, cellular confinement, or segregation. As I said above, the independent adjudicator can also award additional days in prison. However, if the governor feels it is appropriate, the punishment can be suspended so that it only has to be applied if the prisoner commits a further offence within a given timescale.

If the prisoner wants to appeal this can be done on a simple form which is considered by Briefing and Casework unit. If this is unsuccessful it can be referred to the Prison and Probation Ombudsman. If they are still unsuccessful and have a strong case then the last port of call is to apply for a judicial review of the case in the High Court. However, this is now much harder due to cuts in the availability of legal aid.

So, as I said, the rules in prison are complex at the best of times. When you consider not just how things are meant to work but how they actually work, it only becomes even more complicated. But knowing the rules remains vital to long-term survival in prison. Especially if you want to minimise the number of wrongful adjudications you end up facing. I just with I had realised that earlier. As a last example I will explain why. When I faced my very first adjudication (aged 17) for fighting, I pleaded not guilty and explained that I had not been fighting as alleged, but defending myself from assault. The governor told me that there was no such thing as self-defence in prison law and that if I didn’t plead guilty he would give me a harder punishment for wasting time. I believed what he told me and changed my plea to guilty. He awarded me 21 days loss of TV, association, canteen, and earnings as punishment. However, I later found out that his claim that self-defence has no basis in prison law was completely untrue, and at that particular prison the maximum time he could have given me as punishment was 21 days. He couldn’t have given me a harsher punishment if he tried. The lesson? Know the rules, and never trust a governor’s word.

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2 thoughts on “Prison Adjudications: Part Three

  1. Excellent overview Adam, very informative.

    1) You said the right to legal representation has been refused. In your experience, has the right to have a McKenzie friend present ever been refused? It might make sense to insist on having a fellow prisoner present, if only to corroborated your version of the proceedings in any appeals to the Ombudsman?

    2) I presume the appeal to the Briefing and Casework unit and the Prison and Probation Ombudsman are free (minus the costs of postage). Is this correct?

    3) I was wondering your thoughts on if it is worth applying for judicial review if you have the money to do so, versus the possibility the governor and screws could likely make your time inside more miserable (losing an orderly job or ghosting etc).

    If a governor genuinely believed that his decision making process might come under serious scrutiny, then perhaps an offhand remark along the lines of “I’ll be taking the matter up with my solicitor” at the end might force him to consider his final decision more carefully.

    On the other hand, the regime might make your time inside more intolerable.

    What are your thoughts on this?

    • Good questions, Tommy. I can’t really say whether McKenzie friend applications are often refused. I have been lucky in that I have never needed to ask for one myself, but I have advised others to ask for one, whether myself or someone else, and in come cases this has not been granted. However, there are people in prison who like to ask a hundred people for advice until they get told what they want to hear. Whether they have requested McKenzie friends with a strong argument and had it refused out of hand, requested it without presenting a strong argument, or failed to ask at all, I will never know. But I believe that if you present your argument int the best way possible it can be very hard to refuse (and if they do that is always an added ground for appeal).

      Yes, appeals to Briefing and Casework Unit or the Ombudsman are free.

      With regards to whether it is worth applying for Judicial Review of a negative verdict if you have the money it very much depends. Money shouldn’t be an issue anyway as Judicial Reviews can be free if you don’t have any money. The question is what the benefit would be. If the charge is breaking any rule or regulation such as for shaving your head against local rules (as I once did) then it probably isn’t worth the hassle. And even if the charge is serious but you are on a fixed term sentence (guaranteed release on a given date) and you haven’t been given any extra days to serve by the Independent Adjudicator then even if you win the Judicial Review it won’t be before you’ve already completed the irreversible punishment and is probably pointless. On the other hand, if you are a lifer and either have less than five years left to serve of your minimum tariff or have already completed offending behaviour programmes then the guilty verdict can easily affect when you will be released and should always be challenged. Screws might not like it but nothing is worse than facing more time in jail. However, I would never recommend telling a governor that you will be taking the matter up with your solicitor because very few governors actually care about this and, in my experience, such comments are viewed as threats and just make them want to stick the boot in even more. It is far more sensible to prepare a written statement which is both full proof and full of legal jargon, including case law where possible, as this lets them know you are capable of taking the case to court and winning without ever having to threaten them with it.

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