Justice and Fairness in Prisons · 8 Jan 2021
It should not require judicial review to overturn unfair findings of guilt in prison
Our latest briefing on justice and fairness in prisons highlighted the continuing problems created by the adjudication process, the shadow court system that operates inside prisons when people are accused of breaking prison rules.
The Howard League legal team continues to receive calls from young people who feel aggrieved by the way in which the process is conducted.
It is striking that young people regularly report being unable to effectively participate in the process, often not being allowed access to legal representation at hearings before the governor, not knowing when their hearings are scheduled or what they are for, and sometimes discovering that the hearings have gone ahead without them.
Leo (not his real name) was 19 when he called our legal advice line upset that he had been found guilty of breaching prison rules, at a hearing which took place without him being there.
Leo had not refused to attend the hearing, nor had he waived the right to attend; in fact he had not been told what day it was taking place. As punishment, Leo would have to serve an additional 21 days in prison. The district judge who found Leo guilty and awarded him additional days, did so without hearing his possible defence to the charge or mitigation on sentence.
Worse still, there is no simple way to challenge a conviction for breach of prison rules resulting from an adjudication by an outside judge. The Chief Magistrate can review a punishment awarded but has no power to overturn the conviction itself.
Young people regularly report being unable to effectively participate in the process, often not being allowed access to legal representation at hearings before the governor, not knowing when their hearings are scheduled or what they are for, and sometimes discovering that the hearings have gone ahead without them
The Howard League wrote on Leo’s behalf to the Chief Magistrate to reduce his additional days to nil in light of the failings, but this was refused. Even if the punishment had been reduced, Leo would still have been left with a guilty finding on his record in circumstances where he had not had a chance to defend himself.
The only recourse available to Leo to challenge the unfairness of the finding of guilt was by way of judicial review to the High Court.
The Howard League served a pre-action letter, challenging the district judge’s breach of prison rules to proceed in Leo’s absence and the infringement of his right to a fair trial. In response to the letter, the prison confirmed that it agreed the procedure had not been fair and was happy to dismiss the charge, but did not have the power to do so.
After we issued a judicial review claim in the High Court, the Independent Adjudicator agreed that the finding of guilt should be quashed and the additional days were removed from Leo’s sentence. The court was invited to seal an order to that effect, which it did.
It is insufficient that, while the Chief Magistrate has the power to review a punishment awarded by a judge for breach of the prison rules, judicial review remains the only way to overturn the finding of guilt.
If people in prison are to be subjected to formal disciplinary hearings where they are at risk of having extra days added to their sentence, the highest standards of fairness should be applied.