An adjudication is the disciplinary procedure used for prisoners in prisons in England and Wales. They are also known as “nickings”.
Adjudications are inquisitorial rather than adversarial in nature.
Adjudications are governed by Prison Service Instruction (“PSI”) 47/ 2011, which can be found here: http://www.justice.gov.uk/offenders/psis/prison-service-instructions-2011
I recommend that you read the relevant PSI if you would like detailed information about adjudications. The information provided here is merely an outline of the process.
The rules relating to adjudications
If an individual has been accused of a disciplinary offence, the charge against him must be laid as soon as possible, and in any event, this must be within 48 hours of the discovery of the alleged offence, save for exceptional circumstances (PSI 47/2011, 2.2). The time limit is strict.
Adjudications are “de novo” hearings. This means that the adjudicator must have no prior knowledge of the evidence against the prisoner, nor any knowledge or information that might lead to bias for or against any of the parties to the hearing. If the adjudicator is unable to conduct the hearing de novo, it must be adjourned and arrangements for a different adjudicator to preside must be made.
Who presides over adjudications?
Certain members of prison staff (including governors), independent adjudicators and visiting magistrates.
It is important that the adjudicator has not had any direct role in the incident that led to the current charge. If he has any prior knowledge of the prisoner or the prisoner’s disciplinary record, he must disregard it as far as is possible (PSI 47/2011, 2.5).
What is the standard of proof in adjudications?
As with a criminal trial, the charge against the prisoner must be proved beyond reasonable doubt (PSI 47/2011, 2.5).
Adjudications are necessary for the following reasons:
Adjudications contribute to the maintenance of order, control, discipline and a safe environment by investigating offences and punishing those responsible. (PSI 47/2011, 1.4).
Adjudications ensure that the use of authority in the establishment is proportionate, lawful and fair. They make sure that a safe, ordered and decent prison is maintained. Prisoners understand the consequences of their behaviour and consider and address the negative aspects of their behaviour as a result. (PSI 47/2011, 2.1).
The first stage in the adjudication process: forms DIS 1 and DIS 2 (PSI 47/2011, 2.3)
The prisoner is put “on report”. This means that any alleged breach of the Prison Rules are reported before a charge is made against a prisoner. Any charge must be in accordance with the offences listed in the Prison Rules or the Young Offender Institute Rules. The prisoner will receive a “nicking sheet” (formally known as the form DIS 1) which explains the charge. As explained, this must be issued to the prisoner within 48 hours (PSI 47/2011, 2.4)
Following this, a form DIS 2 will be issued to the prisoner. This form explains how the adjudication hearing will proceed.
The second stage in the adjudication process: the hearing
Before the adjudication commences, the prisoner should ask to be provided with copies of all paperwork relating to the charge.
At the start of the hearing, the adjudicator will ask the prisoner whether or not he has received the DIS 1 and DIS 2 forms.
The charge against the prisoner is then read out.
The adjudicator then proceeds to ask the following:
- Whether or not the prisoner understands the charge against him;
- Whether or not he understands what is happening;
- Whether or not he wants legal advice or assistance during the hearing before proceeding further;
- Whether or not he has had enough time about what he wants to say in the adjudication and prepare a defence;
- Whether or not he received any witness statements provided for the hearing;
- Whether or not he himself has made a written statement or reply;
- Whether or not he wants to proceed;
- Whether he pleads guilty or not guilty to the charge.
The adjudicator keeps a record of the adjudication hearing on a form known as DIS 3. It must detail the answers to the questions listed above, and must be sufficiently detailed to demonstrate that the adjudicator has properly considered any requests the prisoners has made (e.g. a request for legal representation).
If the prisoner chooses not to plead, a plea of not guilty is entered on his behalf.
If the prisoner indicates that he would like to seek legal advice, he may be granted an adjournment in order for him to do so. It is at the adjudicator's discretion whether to permit this. If however the adjudication is before an independent adjudicator, the prisoner is always entitled to legal representation.
If the adjudication is before a governor, there is a set of guidelines which are applied when considering a request for further assistance. The guidelines are known as the “Tarrant Criteria”. In such cases, the adjudicator must consider:
- The seriousness of the charge against the prisoner and the potential penalty which may be imposed on him should he be found guilty;
- Whether any points of law are likely to arise;
- The prisoner's capacity to present his own case;
- Whether it is likely that procedural difficulties may arise;
- The need for reasonable speed in hearing the charge;
- The need for fairness;
- Any other matter which the prisoner draws to the adjudicator's attention.
Must the adjudicator provide reasons for his findings?
Yes. The adjudicator must give the prisoner adequate and sufficient reasons for his finding. If he fails to do this, the prisoner may have grounds to judicially review his decision-making process.
Can an adjudication be heard in a prisoner's absence?
Yes. If a prisoner refuses to attend a hearing, or the adjudicator refuses to allow attendance (if, for example, the prisoner is behaving in a disruptive manner), he will be warned that the hearing will proceed in his absence. The adjudicator may allow entry during the course of the hearing if he is satisfied that the prisoner has ceased to be disruptive or has expressed a wish to attend.
If a prisoner is unable to attend a hearing through illness or court appearances, the adjudicator may adjourn the case to be heard at a later date.
If the hearing proceeds in the absence of the prisoner, he will be informed of the outcome at the end of the hearing.
Can a prisoner appeal the decision of an adjudication?
Yes.
Appealing a decision made by a governor or director
If a prisoner wishes to an appeal a finding of guilt by a governor or director of a prison, he must submit the form DIS 8 within 6 weeks of the hearing's conclusion. The prison must then forward the form to the Briefing and Casework Unit (“BCU”), who will then consider the prisoner's request. The BCU will then make a recommendation to a Deputy Director of Custody or the Director of High Security who will decide the appeal. The decision is them communicated to the Governor and prisoner of the decision.
If a prisoner is legally represented, his solicitor may write directly to the BCU to appeal.
The following options are available to the reviewer:
- To uphold the adjudicator's decision;
- To reduce the penalty imposed and insert something less severe;
- Quash the finding of guilt and punishment.
Appealing a decision made by an Independent Adjudicator
If a prisoner wishes to review a decision made by an independent adjudicator, the body to appeal to is the Chief Magistrate's Office.
In such appeals, the prisoner or their legal representative should set out their grounds for appeal on form IA4 or in a letter. This must be done within 14 days of completion of the hearing. This must be sent to the Governor of the prison, who will then forward all the adjudication papers to the Senior District Judge at the Chief Magistrate's Office in London.
The review will be considered by a Nominated District Judge, who will consider the appeal. He will then inform the Governor and the prisoner of his decision within 14 days of receiving the request.
The following options are available to the Nominated District Judge:
- To quash the punishment;
- To reduce the penalty imposed and insert something less severe.
The Nominated District Judge may not quash a finding of guilt by an Independent Adjudicator.
What if the appeal is unsuccessful?
If an appeal is unsuccessful, the following options may be available:
- A complaint to the Prison and Probation Ombudsman;
- Applying for the decision to be Judicially Reviewed.
Lodging a complaint to the Prison and Probation Ombudsman
Whilst this is not an avenue of appeal, the Ombudsman is an independent body that investigates complaints from prisoners. You can find more information on the PPO here: http://www.ppo.gov.uk/
Application for Judicial Review
Judicial Review is a procedure by which the lawfulness of a decision or action made by a public body (such as prisons) is reviewed. It is not a route of appeal: that is to say it does not challenge the conclusion of the decision. It challenges the way that decision was made, or the way that conclusion was reached. If, for example, there was an element of procedural unfairness in the adjudication, this may be a ground for Judicial Review. Or, if an adjudicator does not follow the guidance set out in PSI 47/2011, and this compromises the fairness of the proceedings, their decision may be liable to review.
Judicial Review will not reverse the decision of an adjudication. It will simply mean that the prison will be able to make the decision again, but in a lawful way (i.e. in a way which is not procedurally unfair).
If you are seeking to judicially review a decision arising out of an adjudication, you should seek legal advice.
What relevance does the finding of an adjudication have?
Adjudications can be taken into account when the prisoner is eligible for parole. They will be included in the prisoner’s OASys report. If. for example, a prisoner has many adjudications, it may impact the question of whether he has reduced his risk or complied with his sentence plan.
If an adjudication is subsequently quashed or was not proceeded with, it should not normally be included in the OASys dossier (Prison Service Order 6000, Chapter 5, Appendix G, paragraph 9, which can be accessed here: http://www.justice.gov.uk/offenders/psos) unless exceptional circumstances warrant its inclusion.
What happens after a finding of guilt?
A punishment may be imposed. The punishment must be proportionate and in accordance with the Prison or YOI Rules (PSI 47/2011, 2.1).
Prisoners must be advised of the outcome of the adjudication and any punishments to be imposed (PSI 47/2011, 2.1)
Prisoners must have the means of requesting review explained to them (PSI 47/2011, 2.1).
Days can be added onto a sentence as punishment. This is for circumstances whereby the adjudicator considers that the offence is so serious. (PSI 47/2011, 2.2).
