Adjudications, commonly known as ‘nickings’ are the procedures that occur when a prisoner allegedly breaks Prison Rules. Prison Rules were always Governed by what are called Prison Service Instruments (PSI’s) or Prison service Orders (PSO’s). However, in recent times we are seeing these replaced by ‘policy frameworks’. Prior to 31 May 2024, adjudication procedures were governed by PSI 05/2018, but since then, this PSI has been replaced by the Prisoner Discipline Procedures (Adjudications) Policy Framework issued on 13 May 2024.
Many prisoners may have been familiar with the old PSI 05/2018, however there have been a few changes to the procedures since. In this article, we’ll explain the amendments to rules. If someone is facing an adjudication that will be heard by the Judge or Independent Adjudicator, though, it is in their best interest to seek legal representation.
Who Presides Over Adjudications?
Adjudications are carried out by either the Governor or an Independent Adjudicator (District Judge). Governors tend to deal with less serious charges where punishments are normally dealt with by way of loss of privileges. Governors are also not permitted to award additional custodial days. The award of additional days, which is effectively a consecutive sentence, can only be imposed by the Independent Adjudicator (Judge).
The Right to Legal Advice
Whether before the Governor or Judge, there is always a right to consult with a solicitor and an adjournment can be granted to allow for this private legal consultation. However, if the case is before the Governor, there are no provisions for a solicitor to attend the hearing and there is no legal aid available for such hearings, unless it is deemed that the person needs assistance because of a severe mental health issue or impairment. In these circumstances, representations are made by a legal professional in order to request their presence at the hearing, this is called a McKenzie friend.
The reason there is no legal aid available as standard for Governor adjudications is because they are unable to award additional days. Nevertheless, at Reeds, our team can assess whether an application for a McKenzie Friend is justified. We will also be able to assess if we are able to provide short advice on a pro bono basis or more detailed advice or written representations for a fixed fee for these types of adjudication.
If the matter is referred to the Independent Adjudicator, the prisoner is always entitled to legal representation at the hearing. This may be funded by Legal Aid. Legal Aid is means tested, as with any other area of Prison law. However, Legal Aid can usually be granted provided there are no savings. If for any reason you are ineligible for Legal Aid, we can act on a private paying basis.
As a prisoner runs the risks of a possible consecutive sentence, i.e. additional days in custody, it is always highly advisable to obtain legal representation. At Reeds, our solicitors are very experienced and will be able to assess that the correct procedures have been followed, advise you on the strength of the evidence, your defence, mitigation and possible sentence. It should be noted that the Prison may try to persuade the prisoner to attend unrepresented, this is because it is the easier option for the Prison however, this is not the best option for the Prisoner. They should insist on representation. The Prison may provide the date of the IA with short notice or make it difficult for Solicitors to get booked on to represent people. If this happens, this should result in the Prisoner requesting an adjournment.
The Rules Relating to Adjudications
There are certain administrative rules that the prison must adhere to. This includes reasons for any applications for adjudications to be dismissed. Therefore, it is extremely important to seek assistance from a prison law advisor in order that they can properly represent your interests.
Can I Appeal the Decision?
There are certain rules for appealing decisions depending on whether it was a Governor adjudication or an adjudication before the Judge.
If a solicitor represented you for the adjudication, they will be able to conduct the appeal as part of the Legal Aid funding if the matter was before the Judge. However, if you were unrepresented, represented by another firm, or want to appeal a Governor adjudication, this would need to be done by paying privately and we offer assistance on a fixed fee basis for this.
Virtual Adjudications
Since COVID-19, most adjudications are being listed by video link and very often at very short notice. The rules are the same and you remain entitled to legal representation at the hearing if it is before the Judge.
You should always utilise this right in order to have a fair and proper hearing even if being heard virtually. You need to be clear with the officers that you want legal representation and they will make arrangements for our legal representative to represent you virtually. If you are brought before the Judge without legal representation, you should tell the Judge that you would like an adjournment so that legal representation could be arranged.
At Reeds Solicitors, we have represented numerous clients virtually before the District Judge. A practical point would be to provide the Segregation staff our 24/7 monitored email address ([email protected]) so your representation can be arranged.
Still Not Convinced?
Even if you are not awarded additional days at the hearing, you should be aware that any finding of guilt, whether before the Judge or Governor, can also have considerable implications on your sentence. If you have to go through the parole process to be released like IPPs, EDS and recalled prisoners or if you are looking to be downgraded to a DCAT prisoner, a finding of guilt can affect this.
Many prisoners do not understand the risk when deciding on whether to have a Solicitor. A question to ask is whether you would represent yourself in a trial before the Magistrates or would you have a Solicitor? If the answer is to have an experienced solicitor to the latter, why take the risk on an adjudication – contact Reeds Solicitors immediately if you have been nicked!
