Charges against prisoners

HM prisons in the UK are experiencing difficult and chaotic times, with prison staff frequently struggling to keep control of the prisoner population. The number of assaults, as well as incidents of self-injury, in UK prisons have risen to record highs – with serious assaults trebling in the last four years (Howard League for Penal Reform).

Adjudications

Where there are allegations of wrong-doing or rule-breaking on the part of prisoners, prisons operate adjudications, which are effectively disciplinary hearings. Typically, adjudications take place where there is alleged disobedience, disrespect or property offences – all of which are increasing as conditions in prisons deteriorate. The adjudication process is most commonly carried out by prison governors.

Independent adjudicators

In the case of allegations which are serious, but are not referred to the police or result in prosecution, an independent visiting district judgemay be asked to conduct the adjudication. A district judge has additional powers to that of prison staff and prison governors, and canimpose up to a further 42 days’ imprisonment on top of the prisoner current sentence for each finding of guilt.

The reasonsfor referring some cases to independent adjudicators include:

  • To maintain order within the prison environment
  • Ensure a safe and controlled environment by ensuring all complaints and offences within the prison are investigated thoroughly
  • Ensure the use of authority within the prison is lawful, within reason and fair in all the circumstances

When a prisoner is to be made the subject of an adjudication they will be served with a Notice of Report.

What is a Notice of Report?

A form DS1 Notice of Report (sometimes called a ‘nicking sheet’) is completed by a prison officer and given to the prisoner. The prisoner must be given thiswithin 48 hours of the alleged offence being discovered by the prison service; and the prisoner must have at least 2 hours between receiving this sheet and beginning the adjudication process (normally, it’s the next day).

The 48-hour rule applies to all alleged offences including those that allegedly take place during the weekend or on public/bank holidays.

What rights does the prisoner have?

Importantly, the prisoner will have the right to see a copy of the adjudication process, Prisoner Discipline Procedures (Prison Service Instruction 47/2011), and any other reference material that will help in their defence.

Before the adjudication process begins, the prisoner will have the opportunity to request all the information and documentation the prison has in relation to the charge/s. The prisoner also has the right to seek legal advice, and the right to any documentation required by the prisoner’s lawyer should be provided efficiently and without charge (including written statements from witnesses and staff). These will be given to the prisoner who must then pass them on to their lawyer.

Will there be a formal record of the hearing?

Yes, the hearing will be recorded in form DIS3. This document will contain all the details of the hearing or adjudication as recorded by the adjudicator.

What’s the adjudication process in practice?

The prisoner will be taken by staff to the room set aside in the prison for the purpose of adjudication hearings. The adjudicator will begin the process by asking various questions, including whether the prisoner has received the nicking sheet and other relevant forms; if they understand the charges and whether the prisoner pleads guilty or not guilty.

The prisoner will then be asked if they wish to speak to their lawyer, and call any witnesses in their defence. If the prisoner refuses to enter a plea at the stage, the adjudicator will take this refusal as a guilty plea, and this will be entered on the prisoner’s behalf.

If the prisoner answers ‘no’ to the question about understanding the charge and the procedure, the adjudicator should take time to explain clearly to the prisoner about the charge against him, what the adjudication procedure is, and how the process will work.

If the prisoner has made any written responses to any witness statements received, these will be read out during the process, either by the prisoner, or the adjudicator.

A prisoner’s right to legal advice

If the prisoner does not have a lawyer and they request access to legal advice, the adjudicator must explain their right to legal advice, and the possible forms of legal representation that will be available. This could take the form of:

  • Legal representation for the hearing
  • Legal assistance for the hearing
  • A McKenzie friend (who will usually be a member of the chaplaincy, probation team, a teacher or a fellow prisoner)

Whether such assistance will be allowed will be in the adjudicator’discretion, though the prisoner has an absolute right to legal representation in front of an independent adjudicator.

The verdict

When all the evidence has been heard, the Governor will decide whether or not the charge has been proved beyond reasonable doubt. If it has not, the case will be dismissed.

If a guilty verdict is delivered, the prisoner will be able to state why they believe they should be treated leniently. The Governor will also hear any reports on their general behaviour in prison (these will include any previous adjudications). An appropriate sanction will then be imposed, effectively immediately, for instance, solitary confinement.