Solicitor Harjit Chana draws attention to the adjudication process and says that departure from natural justice within the disciplinary process should be challenged
Each year, approximately 100,000 inmates breach prison discipline and face subsequent adjudications which are carried out by either prison governors or independent adjudicators (both known as adjudicators). The procedure governing adjudications is contained in PSO 2000, which states that an adjudication has two stated purposes:-
The adjudication process is begun when a prisoner is placed on report and is served with a form F1127 (more commonly known as a “nicking sheet”). This must be issued within 48 hours of the alleged offence being discovered and at least two hours before the start of the adjudication. Perhaps surprisingly, the prisons often fall foul of this requirement and inmates should always be alert to the possibility of having a charge dismissed on the basis of late service. Once the nicking sheet is served, there is usually an early appearance before the governor who will decide whether or not the matter is serious enough to warrant a referral to the external adjudicator; a District Judge. External adjudicators usually hear matters alleging possession of mobile telephones, assaults on fellow inmates and possession of other prohibited articles, or items such as hooch. Unlike prison governors, independent adjudicators have the power to award up to 42 additional day’s imprisonment for each finding of guilt. For lifer prisoners, adjudications are almost always determined by a governor in view of the limited impact additional days would have as a sentence.
Before any adjudication, prisoners should ensure that sight is had of copies of all paperwork relating to the charge. If the inmate is represented, the representative will invariably request a copy direct from the prison. A refusal of such requests would be a breach of paragraph 2.20 of PSO 2000 and if not remedied by the adjudicator, together with a reasonable time period in which to prepare for the hearing (particularly where the hearing is contested), will invariably afford a ground of appeal. Paragraph 2.20 states: “if the accused or his legal representative asks before the hearing for a copy of all statements to be submitted in evidence so as to prepare a defence or mitigation, these must be supplied at public expense.”
A record of the adjudication and all preliminary hearings is made. Adjudicators need to satisfy themselves that the prisoner understands the charge and the procedure to follow. Requests for adjournments at the first hearing for legal advice should be granted, and the adjudicator should accede to requests to adjourn for the calling of witnesses. Unreasonable refusals for adjournments to call witnesses and to seek legal advice should always be challenged by way of appeal.
Adjudicators must always be seen to act fairly and justly. If there is apparent departure from reasonableness and fairness, such decisions risk being overturned if the adjudication is reviewed.
Before an external adjudicator a prisoner is entitled, as of right, to have a legal representative present at the adjudication. The presence of a legal representative before a Governor is at the governor’s discretion and a ‘Tarrant’ application must be made. For guidance on how to do this, refer to Alan Burcombe’s article (of this firm) in the March 2009 issue of Inside Time.
Where any appeal against an adjudication is contemplated, the writer would always suggest seeking legal representation. An appeal against a finding of guilt by a Governor is commenced by submitting a Form ADJ1 to the Governor or Director. The application for a review should be made within 3 months of the decision complained of. Once received, the form and details of the complaint will then be sent to the Briefing and Casework Unit or Directorate of High Security Prison’s Support Unit, as appropriate. The ADJ1, whether standing alone or in addition to any written submissions made by a legal representative, will then be considered by the Area Manager. Prisoners are entitled to obtain a copy of the written record of the hearing free of charge before making an appeal.
Regrettably, prisoners cannot appeal against a finding of guilt where the adjudication was heard by an Independent Adjudicator. Appeals are restricted to a review of the punishment awarded; unless it is considered that a Judicial Review of the decision should be pursued.
There is no set form governing a review of an independent adjudicator’s decision, and applications for review should be set out on a blank piece of paper or in the form of a letter. Any appeal must be made within 14 days of completion of the adjudication, and the basis of the appeal must be sent initially to the Governor or Director setting out detailed reasons.
On receipt of the application, the Governor will send it to the Secretariat at the Chief Magistrates Office, City of Westminster Magistrates Court, 70 Horseferry Road, London SW1P 2AX with the ‘nicking sheet’, the record of the hearing, and any wing reports from the adjudication. Applications received out of time will only be considered if exceptional circumstances exist.
The review will be conducted on the papers alone and will be considered by the Senior District Judge (or deputy). The reviewer may 1) uphold the punishment; 2) reduce the number of additional days; 3) substitute a less severe punishment; 4) quash the punishment entirely.
If the punishment is upheld on appeal, it is then open to the prisoner to make a complaint to the Prisons Ombudsman within one month.
Inmates who have been involved in the adjudication process within prison will know that the system is far from being without criticism.
Prison discipline is central to the management of imprisonment; it is also central to the prisoner’s experience of imprisonment. The fairness of the disciplinary process (actual and perceived) is fundamental to its effectiveness and legitimacy. It is very much the writer’s view that any departure from fairness and natural justice within the disciplinary process should be challenged.
* Harjit Chana is head of the Prison Law department at Wells Burcombe
Comments about this article
19/7/2011 Jail Nation - - www.jailnation.com/nj/Adjudication is a form of alternative dispute resolution in which parties involved in a construction contract have a statutory right to use it, where an adjudicator will decide on an agreement to a dispute. It is meant to be quick and cheap, rather than looking at litigation or even other forms of alternative dispute resolution such as arbitration. It is usually to ensure that payment is made, but generally most types of disputes can be adjudicated.
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