Written and recorded by Dean Kingham, Swain
Hello, I'm doing Kingdom of Swain and Coach Listers. I had the prison or public law and criminal departments, and I'm going to be talking to you about adjudications now. I'm hoping this session is going to be practical and helpful in thinking about tactics, preparation and how to get the best result for your client in adjudications looking at how to achieve the best, any result with a focus on whether or not they will need to be a any subsequent proceedings. The useful starting point is effectively to consider the case of Gifford versus the secretary of state. Now. Gifford versus the secretary of state was in 2014 e w hate c 911 In the admin in court. This concerns a governor only adjudication and weather. Judicial review is a remedy of last resort. Was the appropriate action to be taken when challenging the actions of a governor? Unfortunately, the high court in this case held that the appropriate remedy in the first instance is fire the prison and probation ombudsman, and that's ordinarily the High Court. We're no longer going to be considering challenges against a governor for judicial review when the president probation ombudsman could adequately investigate the complaint. Of course, if the prison on probation ombudsman fouled to properly investigate or foul Teoh, consider a complaint, then judicial review may well still be available. In addition, of course, one could always consider challenge in the prison in probation on Whitman that's highly relevant. That judgment, because it has to have changed the approach of practitioners when assisting prisoners with governor on the adjudications, are certainly from my experience. It's not the case that governors have got better in protecting prisoners or applying the law correctly on you'll see from this next case one of the concerns for practitioners. So I was actually involved in the case of Sore Are Sore versus secretary of state for justice, 2015 e. W hate to see free nine to admin. And this was a fairly innocuous set of facts because, in essence, Mr Sore was on his way to work When an officer searched him on, stuffed down the front, his trousers found a number of slices of bread. He was given a dialect order to return them to his cell, which he refused. And he argued that for medical reasons, given the inadequacies of the prison lunch, he required them to assist him with his diet and his particular medical problems. This went before the governor, who was loathed to investigate it but eventually decided to hear some evidence from the health care department. Robin and half the member of healthcare start for 10 the here, and he took telephone evidence from them critically. Before he did so, he removed the client from the hearing, took evidence in closed session and in in parts off the finding of guilt referred to the evidence off the medical professional. We were astounded by this on Julie challenged it originally. What they were saying was, well, we removed your client from the adjudication room. But there was no unfairness, despite the fact that effectively heard evidenced in closed session did not permit our client to ask any questions nor raise any points on it. My client also instructed that upon making some points in closing the, he referred to the medical evidence and obviously couldn't effectively question on the health care professionals. He hadn't been allowed to naturally thinking this was incredibly unfair. We sought to challenge this. Now we were during proceedings concerned because the judgment of Gifford had recently being handed down, and we had concerns that the high court would simply say that we should have gone to the prison and probation on Minuteman now, at the time the gift of judgment was handed down, would already have permission from the High Court on the basis that the claim that our people and we were proceeding to full here. And fortunately, the admin court said that the ombudsman in this case it was not the route to go down, given the permission ittle bit already been granted and effectively allowed us to air the argument. That, in essence, amounted to the quite simple notion that the adjudicator heard evidence in closed session without any reasonable explanation given to the clients and in utilized the evidence heard in the finding of guilt. The Adam in court effectively quashed the decision, which waas a fantastic result on one for basic legal principles. What was interested in this case was as part of the evidence that the court heard that he adjudicating governor within his witness statement referred to the fact that he had Bean, a governor for 20 years, plus conducting adjudications. I'm one fault well Why was he acting in such a way when you would expect him to, with his experience, to fully be oh fe with the Prison Service instruction on adjudications? Having considered Cem preliminary case law, let's move on to the prison service instruction itself. 47 2000 and 11 Prisoners Discipline Manual. The starting point has to bay for anybody commencing adjudications for the first time. All those that's a gain in experience with adjudications to treat that as the Bible for adjudications because more often than not, your finds that governors independent adjudicators and not perhaps up to up to speed with the manual as one would hope or imagine they would be. From my experience, over the last five years or so, the number of independent adjudication says steadily decreased. This is in part as I understand the fact that the remuneration off independent adjudicators falls within the budget of the prison, and therefore governors are looking to deal with matters before themselves rather than sending the case out to an independent adjudicator. Sometimes this has advantages to the clients is it means that additional days are not going to be awarded in cases where ordinarily, from previous experiences. Additional days would have been, however, one obvious downside, too. Governor only adjudications on the fact that it's incredibly difficult. Tack obtained representation for your client before the governor, and more often than not, governors are not consistently applying the principles within the PS. I appropriately. So you have an adjudication a client rights into to contact you by telephone. The starting point, obviously, is that it's before the governor. On the first appearance, the governor will consider whether or not to send it to the independent adjudicator that's assume that he decides to keep it to himself. What would you say are some of the most critical things to consider at that stage? Well, I would say disclosure of relevant documents, depending on the disciplinary charge. The prisoners being charged with Andi consideration under the Tarrant Principles Deterrent principles, a set out indeed. How in the P s. I like scene certainly from my experience, Reasonable. Andi, you would imagine that you would be quite capable of falling world within the points raised to enable governors to routinely grant representations before themselves. However, they don't I certainly my practice have never come across a case where the governor is going to town principles, representation, and I know from speaking to others. It is a very rare event. Indeed. One aspect to consider when representing prisoners for adjudications is that many prisoners nowadays are diagnosed with some form of condition. And I don't say that, uh, lightly, but certainly from my experience, for instance, personality disorders, a large number of prisoners that diagnosed with antisocial what this social personality disorders. Andi. The reason I raised this is because one should always be thinking about the equality Act in the brought definition off disability. So it's a condition that impacts roughly speaking, a condition that impacts on the day to day activities off the individual effectively. What's what that is getting at is that on a day to day basis, the condition is such that it does impact on the individual's ability to carry out tasks. Thinking about that, that that could be a whole raft of physical or mental health conditions. And the reason the equality acts is important is because if you are able to demonstrate that the person is disabled within the meaning of the act, every public authority has a duty to make reasonable adjustments now, when considering the talent principle, one could say a reasonable adjustment in that case would be to permit representation. And this is important because one has to consider that within the PS I it is clear that Mackenzie friends are unable to question witnesses and therefore their role is limited. The particular into play with someone with a disabled prisoner is that a Mackenzie friend would not be suitable because they cannot question and a witness a prison officer. Andi, the individual prisoner, is vulnerable. Therefore, legal representation would be the best way forward. Now I'm going to talk you through the difference talent, principles, criteria. So the 1st 1 is the seriousness of the charge on the potential penalty. Now adjudicators should use their own judgment and knowledge of how serious the charges in the potential penalty. One of the changes in this Pierce I was that often prisoners will refer to the fact that a proven adjudication will impact on any parole board's decision. The PS I specifically it's under the head in seriousness of charge and potential penalty refers to the fact that this is simply hypothetical. But as someone appears appears before the parole board daily. What I would suggest is if someone's accused off that, say, possession of Hooch fouled M d T possession of a mobile phone commits an assault, and he's in for a violent offence on the matters outstanding at the time of a parole hearing. No sensible panel. Simply disregard that. And certainly from my experience, parable panels always actively consider outstanding adjudications. So I don't think it's fair will write for the PS I to say simply hypothetical the next head in under talent principle, which is that is whether any points of law are likely to arise Now. I would encourage you to think broadly about this because, um, if there's a point of law, it's not going to be appropriate for an individual prisoner to try to argue this. When I say think broadly lease. I'm going to come onto some cases that's have developed fairly recently in trying to argue unique defenses. The third subsection of the talent principles pertains to the capacity of particular prisoners to present their own case. And this is where the Equality Act important definition off disability because prisoners who are unable to follow the proceedings or to present a written on all defense due to language or learning difficulties, and particularly those who have or may have mental health problems may need help from a friend or representative. And that's that's the point. If if there is clear evidence of a disability, you can put that before the governor directly or or are asking them to obtain relevant health care reports. The four flim is procedural difficulties again. This may be related to a disability, but it particularly focuses on whether they would be able to question experts or prison officers. I think it's always important to consider that prison officers, our professional witnesses, Andi. There it there's no equal balance. If an individual prisoner was asked a question, a prison officer who would have been before a governor, independent adjudicator or even court given evidence on a number of occasions within this limb, it does point to the fact that a Mackenzie friend is often not sufficient, Um, because they can only advise or questions, so that's a good point. To always refer to the need for reasonable speed is the fifth limb. Now this is an interesting one because it's the pier, so I suggests, but having legal representation. It's going to slow down and delay proceedings, but isn't certainly not my experience. One can always arguing submitting the Tarrant principal request that a certain dates should be the next occasion, which the adjudicator his the matter. Therefore, it takes away the force of any argument they may seek to counter with and finally, the need for fairness. Now, this is an interesting one, because what is fairness now? They say you appear so I specifically said, said it for prisoners granted legal representation. Then consideration should be given us toe whether or not the Treasury Mr should be contacted to arrange representation. Now, procedural fairness is something that interests myself because off the Supreme Court judgement in Osborne on Booth versus the Parole Board, on the scope to argue the procedural fairness as a concept is much wider than the probe all proceedings itself. I take the view that there certainly in argument to apply this across the across a wide number of different prison or scenarios. Oh, and as part satanic principles representations, I always argue that procedural fairness should be applied in the representation should be granted now for procedural fairness, you can always look to the judgment off Lord Reid in North Born and Boof and pick out some of his useful parts off his judgment, where he makes general points as to the need to act in a fair manner. So having considered talent representation if the governor refuses, there is a duty to give written reasons. I'm currently involved in a case at the moment where we submitted a talent representation application to the governor for a individual who is disabled, and we were asking to make reasonable adjustments, given his particular vulnerabilities on and the prison simply responded, saying, there is no duty for legal representation. They fell to consider the application, and they found to give any written reasons, and in that case we felt it was appropriate to submits a letter before claim that stage challenging the for you to consider. But I'm quite hopeful in that case that we will achieve representation given the prisoners vulnerabilities. So defenses before the governor or the Independence adjudicator Now there was an interesting case that one of my colleagues was involved in Wilson versus the independent adjudicator key w hate see 176 admin. And this was a wire wire who Waas found in possession off quite a large quantity of alcohol. Andi effectively his defense amounted to. He was put on to do arrest, to hold on to it and whilst he was possessing it, he did so because of your arrest. This was running at the time when it was widely acknowledged and still is that there's large amounts of violence in the y o our state. Someone would have fought, given the overlap and interplay with the criminal courts, particularly before, and independent adjudicate so that the defense of duress would be quite capable being run on successfully. However, the Independence adjudicator fouled Teoh have Juba guard to the defense of duress, arguing that it wasn't a defense that could be applied naturally. This was challenged in the high court, and the high court also ruled that it was not capable of being relied upon in as a defense because there was a general distinction between criminal and disciplinary offenses. And as such, the prison rules that apply to adjudications are effectively a separate noncriminal disciplinary code for the purposes of the application of the Common Law defense of your arrest. Now, to me, that's appeared incredibly unfair. This was taken to the court of the pill, and the Court of Appeal upheld the decision of the admin course. When considering relevant defenses, one should have in mind the new Psycho Substances Act 2000 and 16 whereby it is a specific criminal offense to possess psychoactive substances in a custodial institution with the knowledge that it is such a substance and intent to consume it. There are now mandatory drug tests that can test for spice on the maximum sentence is one of up to two years on criminal proceeding status. Now, in respect of spots, we've always had the issue of passive smoking. Passive spice use is certainly something that I have seen were in evidence for probable proceedings. So it's something to their mind bringing this weapon are together. What I would urge is always think creatively how you can best represent your client before the governor or the independent adjudicator. I say that because through the cases that I've referred to within this weapon are you've seen evidence off potential bad practice, unlawful practice and the failure to have due regard to the pierce right. So one should always have in mind how you would best challenge a decision if you feel that it's unlawful, unreasonable or irrational. Thank you
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