Adjudications – fighting your corner

06/02/2012

‘Nicking’s’, ‘Reports’, ‘Notices’, call them what you will, for many prisoners adjudications are a part of everyday prison life. From the short-term determinate prisoner looking to secure open conditions, to the post-tariff IPP prisoner trying to avoid serving yet another year after tariff, having an adjudication on your record can have a real impact.

What actually is an Adjudication?

Prisoners will no doubt be aware that there are various processes in place that the prison use in order to maintain discipline. The Adjudication system is known as the formal discipline process and is used when a prisoner is suspected of committing a disciplinary offence.

The authority to discipline prisoners is contained in the Prisons Act 1952 and the 29 disciplinary offences are detailed at Rule 51 of the Prison Rules 1999 (Rule 50 for young offenders). The list of offences can also be found in the Prison Discipline Procedures PSI 47/2011, which came into force on 1st October 2011 replacing the previous Prison Discipline Manual PSO2000 (Although this manual still applies for adjudications that commenced prior to 1st October 2011). PSI 47/2011 should be available upon request or at least accessible within the prison library.

What will happen if I am Adjudicated?

If a prisoner is going to be Adjudicated then the charge alleging one of the 29 disciplinary offences “must be laid as soon as possible and, other than in exceptional circumstances, within 48 hours of the discovery of the alleged offence” (para 2.2 of PSI 47/2011). The details of the charge(s) will be provided on a Notice of Report (Form DIS1 which prior to 1stOctober2011 was known as F1127A&B).

The Notice of Report form MUST give details of the adjudication (charge, time, date, rule broken, reporting officer’s evidence and details and the time of the hearing).

A prisoner must then appear at an adjudication hearing that “must then be opened, again other than in exceptional circumstances, on the following day, unless that is a Sunday or a public holiday in which case it will be opened the next working day” (para 2.2 of PSI 47/2011).  This hearing will be before a Governor. If the charge is sufficiently serious the Governor must refer the case to the Independent Adjudicator (District Judge).  If this happens then a hearing before the Independent Adjudicator must be arranged within 28 days of the referral being made by the Governor (para 2.26 PSI 47/2011).

Will the Police be Informed?

In some circumstances the prison staff may feel that an offence is so serious that it should be referred to the police. The Decision for referral to the Police is for the adjudicator taking account of the individual circumstances of the case. Even where the matter has been referred to the police disciplinary proceedings will still be laid, except in the most serious offences such as murder. In such cases an adjudication will proceed in the way stated above and then be adjourned until the outcome of the police investigation is known. If the police prosecution goes ahead then the adjudication will not proceed. If a prisoner is not prosecuted in a court then the adjudication may resume. However consideration needs to be given as to whether it is right for the prison to proceed with an adjudication in such circumstances (para 2.18 PSI 47/2011).

Who will fight my corner?

At the start of the hearing, the Governor or Independent Adjudicator must ask the prisoner whether or not he wishes to have legal advice. It is strongly advisable that a prisoner always requests legal advice at the first hearing. A solicitor can advise you as to whether the adjudication procedure has been carried out correctly, confirm whether you have any defence to the charges and of course make arrangements to appear at the hearing if your case has been referred to the Independent Adjudicator.

If the matter is not referred to the Independent Adjudicator then a prisoner is not entitled to have a solicitor actually present at the hearing but a prisoner is still entitled to request that the hearing be adjourned in order to obtain legal advice. Arrangements should then be made to contact a solicitor (if you have not already done so) so that advice can be given. The solicitor may also draft representations for the prisoner to take to the adjudication and read out or present to the Governor.

When a prisoner appears before the independent adjudicator (District Judge) Solicitors can attend and represent you and conduct a defence as in a trial court.  

What happens at the hearing itself?

Adjudications are less formal than Court proceedings but have a similar format. Prisoners are called into the Adjudication room, usually on the segregation unit, and asked to confirm their name, that they have received Notice of Report and whether they understand the procedure.

Prisoners should be asked whether they have had time to prepare a defence and whether they will be submitting a written defence. An adjournment should be sought if you are not fully prepared and you should seek urgent legal advice.

After a plea is taken and if the hearing goes ahead, the Reporting Officer will then give evidence. In most cases this will simply be a matter of him reading out the Notice of Report. The prisoner or the legal representative will then have the opportunity to ask the officer questions in relation to his account of events. It is important when doing so to consider each element of the offence(s) alleged.

Prisoners must also be given the opportunity to give their own evidence and at the end of the hearing submissions should be made as to why a prisoner the charge should not be proved if you have pleaded not guilty. Just as in the criminal Courts, the standard of proof that must be met before a prisoner can be found guilty is “beyond reasonable doubt”. If this high standard cannot be reached, then the charge should not be found proved.

What Sentence Will I Get?

If found guilty there is a broad range of punishments available to the Governor or Judge when passing sentence. An adjudicator should mark on the Notice of Hearing form (now referred to as a DIS7 formally known as a F256) the reasons why a particular sentence was given. Consideration should be given to relevant mitigating factors such as impact on the victim, early guilty pleas and the circumstances and seriousness of the offence. If appearing before the independent adjudicator there is a risk that a maximum of 42 additional days could be added to a prisoners sentence. It is strobgly advisable that in such cases you instruct an experienced Prison Law Solicitor to assist you and ensure that you are properly represented in order that they are able to mitigate on your behalf in advance of the passing of any sentence.

Can I Appeal?

If the adjudication took place in front of the Governor you can request a review under prison rule 61. To do so you must submit complaints form ADJ1 or contact a Solicitor who will write to the prison requesting a review of the adjudication. It is vital that the request for a review is made within six weeks of the date that the adjudication concluded. This review is considered on the papers only. If a prisoner is still unhappy with the decision then an appeal may be submitted to the Prison Ombudsman or Judicial Review proceedings may be considered.

Findings of guilt by an Independent Adjudicator can only be challenged by way judicial review. Judicial review is a highly specialised area of the law and you should therefore instruct a solicitor if you wish to pursue this avenue. An application for Judicial Review will be appropriate if it appears that the hearing was procedurally flawed or unfair.

Punishments imposed by an Independent Adjudicators can however be challenged in writing to  the Senior District Judge at the Chief Magistrates Office, it is wise to request that a solicitor do this for you. This application MUST be done within 14 days of the adjudication and could result in a punishment being reduced, upheld or quashed entirely.

The sting in the tail…

The unseen punishment that an adverse adjudication result carries is the fact it is always be on a prisoner’s record. It will be noted by every Parole Board, Re-categorisation clerk and when considering Release On Temporary Licence or Home Detention Curfew application for the remained of the sentence. This will not be mentioned when you are asked to enter a plea and it is therefore important that you carefully consider instructing a solicitor as soon as you get a “nicking”.

In summary, adjudications are a complex area of prison law and one which can have a hugely detrimental impact on your chances of progressing through the prison system, but you are not alone. You have the right to instruct a solicitor to fight your corner and in most cases this can be done on a legal aid basis subject to means testing.

HINE Solicitors have a specialist Prison Law department who assist prisoners Nationwide with adjudications whether it be by providing representations and advice  for a Governor’s Adjudication or attending and representing a prisoner in person before any Independent Adjudicator.

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