Howard League exposes injustice of prison disciplinary system

The disciplinary system in prisons creates a pervasive sense of injustice, fuelling conflict and overcrowding, and should be overhauled, the Howard League for Penal Reform reveals today (Monday 23 November) as figures show that the number of formal hearings has risen to a record high.

In a new briefing, the charity explores how rule-breaking in prisons in England and Wales is managed through formal disciplinary hearings, known as adjudications, where prisoners can be given punishments including solitary confinement and additional days of imprisonment.

Illustrated with anonymised case-studies from the Howard League’s legal work representing hundreds of children and young adults in prison, the briefing shows how adjudications have been used increasingly and unnecessarily as an everyday behaviour management tool – leading to punitive and arbitrary outcomes.

The Howard League has encountered a host of troubling cases through its work, including teenagers who were punished for attempting to harm themselves and a young adult with learning difficulties who was ordered to spend longer in prison at a hearing where he did not have legal representation.

Official statistics provided by the Ministry of Justice reveal that the number of adjudications rose to more than 210,000 in 2019 – an increase of 76 per cent in eight years, despite the prison population remaining relatively constant.

The briefing states that there is an overwhelming case for abolishing the imposition of additional days of imprisonment, which totalled more than 337,000 in 2019. This would bring England and Wales in line with Scotland, where the practice was ended to positive effect almost 20 years ago.

Although the number of adjudications rose in 2019, the total number of additional days imposed was lower than in 2018, when an all-time high of 380,169 was recorded. Recent figures suggest that the imposition of additional days has fallen sharply during the Covid-19 pandemic, which should prompt discussions about how policy could be reset and improved.

Frances Crook, Chief Executive of the Howard League for Penal Reform, said: “If we must have prisons, they should meet the very highest standards of justice, with disciplinary processes that are fair, discerning and proportionate.

“Rather than solving problems, however, the current system creates new ones. Procedurally unjust and unduly punitive, it succeeds only in driving a pervasive sense of injustice that undermines trust and engagement and leads to more conflict.

“It is time to adopt a different approach. If we look beyond punishment and install procedurally fair processes built on communication, consent and respect, we can make prisons safer and guide more people away from crime.”

The briefing is the second to emerge from the Howard League’s Justice and Fairness programme, exploring how good order can be achieved in prisons in a just and fair way without resorting unnecessarily to punitive disciplinary processes.

It shows how the overuse of adjudications has placed excessive strain on the prison system’s already-stretched resources, leading to inadequate investigations and inconsistent application of the procedures. The number of adjudications that were dismissed or not proceeded with more than doubled between 2011 and 2018, and the proportion of all adjudications which were found proved fell from 73 per cent in 2011 to 64 per cent in 2019.

The chaos arising from the overuse of adjudications often results in procedural rights being threatened and can lead to significant delays and arbitrary outcomes. Even where an adjudication is dismissed, the weeks and months spent waiting can have a profound impact on the prisoner concerned.

As soon as a prisoner has been formally reported for having broken a rule, they will often have privileges removed, frequently by the officer who is making the allegation, without any independent review of the strength of the charge. The sense of injustice triggered by this summary punishment can be compounded when, as often occurs, lost privileges are not restored when charges are dismissed. The loss of privileges can also adversely affect the outcome of future parole hearings, redoubling the unfairness of an ineffective disciplinary process.

The briefing reveals that racial discrimination is entrenched in the system. In 2019 Black, Asian and minority ethnic prisoners accounted for almost a third of all adjudications, while comprising just a quarter of the prison population.

Children and young adults are also affected disproportionately. Between 2011 and 2018 the largest increase in the number of adjudications was for children aged 15 to 17. Young adults aged 18 to 20 received 14 per cent of all the additional days of imprisonment that were imposed in 2019, despite making up just over 1 per cent of the prison population.

Case studies

The briefing features several anonymised case-studies drawn from the Howard League’s legal work representing hundreds of children and young adults in prison disciplinary processes.

‘David’

David, a highly vulnerable 18-year-old with very complex mental health needs and a long history of self-injury, was adjudicated for damaging prison property. The damage was done when David broke off part of his cell to injure himself with. Although the prison rules state that where property is damaged in order to self-injure no charges should be brought, David was charged and found guilty by the governor, who fined him £48. The decision to charge David was a breach of the prison rules and he successfully appealed against the fine.

‘Josh’

Josh, a vulnerable 19-year-old with a history of self-injury, refused to follow an officer’s instruction when asked to stop injuring himself. He received 21 days’ loss of privileges at a governor’s adjudication. An appeal and complaint were not upheld by the Ministry of Justice and the Prisons and Probation Ombudsman respectively.

‘Chris’

Chris, 19, was adjudicated for resisting a lawful restraint. The incident started when two other young people tried to attack Chris in the visiting room. Despite offering no provocation, the teenager was restrained by three prison officers. As the officers held Chris on the floor, one of his assailants managed to get close enough to swing a punch at him. As a result, Chris struggled against the restraint, feeling understandably threatened and vulnerable.

Although three prison officers had restrained Chris, the prison had not provided his legal representative, a Howard League solicitor, with any use of force reports – the records which must be made by each officer after the incident. Eventually one use of force report was produced, but the remaining two could not be found (despite the fact that they are required to be kept in the same place).

The judge adjourned the adjudication at the solicitor’s request and ordered the reports to be served. At the second hearing the reports had still not been served, despite the judge’s order, and so, two months after the original hearing, the judge ordered that the adjudication be dismissed.

‘George’

George, a young person with learning difficulties, was subject to an adjudication and had 20 additional days’ imprisonment imposed on him when unrepresented, despite the Howard League having written to the prison explaining that he required representation. The adjudication had to be appealed, and the Chief Magistrate later set aside the punishment in recognition that the hearing ought to have been adjourned for legal representation to be provided.

‘Max’

Howard League solicitors represented Max, 19, who spent six months on a reduced privileges status while waiting for an adjudication outcome. The adjudication was delayed twice. Max’s behaviour during those six months was excellent, but his previously ‘enhanced’ privileges status was not restored. The reduction in Max’s privileges status will adversely affect his upcoming parole review, meaning that he is being punished twice over, even before there is any finding against him in the adjudication process.

‘Kyle’

Kyle, a teenager, had been held in isolation for many weeks in relation to his mental health problems when he was ‘nicked’ for squirting milk at a prison officer through the opening in his cell door. The officer had received the same treatment from several teenagers on the wing that morning and, on this occasion, she lost her temper and ‘nicked’ Kyle. Kyle was charged with assault and his case was referred to an external adjudicator.

The prison officer concerned expressed genuine shock when she discovered that Kyle might be penalised with extra days. Following extensive representations by the Howard League, the case was eventually dismissed on the basis that it was not sufficiently serious to be heard by an external adjudicator. By that time, however, Kyle had endured the stress of waiting for many weeks for the adjudication to take place.

Notes to editors

1. The Howard League for Penal Reform is the oldest penal reform charity in the world. It is a national charity working for less crime, safer communities and fewer people in prison.
2. Justice does not stop at the prison gate: Justice and fairness in prisons Briefing Two can be downloaded from the Howard League website.
3. Additional days data for each prison in England and Wales is shown in the table below:

^* Population given is for Prescoed and Usk combined.
^** The Verne reopened in 2018.
^*** Feltham, Swinfen Hall and Aylesbury are included here as they all have wings that predominantly hold young adults. Parc holds all ages so is included in the list of prisons holding men.

Contact

Rob Preece
Campaigns and Communications Manager
Mobile: +44 (0)7714 604955
Email: robert.preece@howardleague.org