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Justice and Fairness in Prisons · 4 Jun 2020

Prison punishment: the procedural unfairness of prison adjudications

On the same day as the adjudication discussed in the previous Justice and Fairness blog post, we attended a second adjudication at the same prison. The second adjudication was very clearly unfair, in terms of the charge that was brought and the process itself.

Our second client, who was 19 years old, had not been the aggressor in the incident for which he was being adjudicated and was contesting the charge of resisting a lawful restraint. Despite submitting several requests in the week prior to the adjudication, the prison had not provided us with any use of force documents for this case. Non-disclosure of adjudication paperwork is in breach of the prison rule on disciplinary procedure (Annexe 2.9). After initially telling us they could not locate any documentation, the prison eventually produced one use of force report, thanks to the persistence of our solicitor.

When we met with our client before the hearing, he told us that he felt strongly that the adjudication was unjust and was articulate in his own defence. He was close to parole and had been trying hard to stay out of trouble before his parole date: this incident was a case of trouble coming to him. He engaged closely with our solicitor to explain his version of events, an account which he would not have had a chance to give without a legal representative present.

Before the adjudication took place, we all watched the CCTV of the incident – the judge, the solicitor, our client, the prison officers and myself – in the adjudication room. There was no opportunity for us to watch the footage alone with our client and without the judge present. The incident had occurred in the visitors’ room.

We watched a grainy version of our client sitting in one corner of the room, leaning back, clearly relaxed. In the far corner of the room, two other men appear and begin to rush our client. Two staff members manage to restrain them before they cross the room, and another officer approaches our client, who has not reacted, and pushes him back against the wall. At this point one of the aggressors breaks free and rushes our client again, this time getting close enough to swing a punch before an officer pulls him back. By now, two other officers have joined the first and all three are restraining our client, who starts to struggle as he is rushed for a second time. With three officers pinning him against the wall, he is vulnerable to attack.

As he begins to struggle, the officers force him down onto the floor, and in the process one of the officers gets pulled down too. For that reason, our client was given an adjudication – for resisting a restraint which was unnecessary and placed him in a vulnerable position. The judge was interested in the section of footage which showed him resisting the restraint and the teenager had to watch himself being forced to the ground by three prison officers again and again.

We requested a break and went back to the interview cell to take our client’s instructions. It was now clear, having seen that three prison officers had been involved in the restraint, that not all use of force documents had been provided – we only had one. This was a clear example of procedural unfairness. Without full disclosure of the relevant paperwork, our legal representative could not advocate effectively on our client’s behalf. Moreover, the charge itself was clearly unfair, as our client had not been the aggressor in this incident.

The teenager had to watch himself being forced to the ground by three prison officers again and again

We went back into the adjudication room and our solicitor put forward the argument that the charge that had been brought against our client was unfair, as the restraint that he had allegedly resisted had not been lawful. According to the Prison Service Instruction on use of force (2.44), the use of force is only lawful if its use is ‘reasonable, proportionate, necessary, and no more force than is necessary in the circumstances’. The force used against our client, our solicitor argued, was unnecessary, disproportionate and excessive.

The judge dismissed this argument and refused to accept that our client was a victim in the course of this incident. When the teenager raised his hand to contest this point, the judge did not permit him to speak. However, thanks to our earlier efforts, we were able to make an argument around procedural fairness: while three prison officers were involved in the restraint, only one use of force report had been provided. On these grounds, the judge agreed to adjourn the hearing.

Following this adjourned hearing, our legal team put in a complaint against the prison for unlawful restraint. We are still waiting to hear back about the outcome of this complaint. And despite receiving an order from the judge, the prison has failed to produce the outstanding paperwork. For that reason, two months after the original hearing, the judge ordered that the adjudication be dismissed.

Many adjudications proceed without a legal representative, meaning that the client has no voice at all. The advocacy of our solicitor resulted in the eventual dismissal of this case. Without that advocacy, it is likely that our client would have been punished for his involvement in an incident in which he was so clearly a victim – an outcome that would have been procedurally and systemically unjust.

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