In July 2016 I wrote a blog “Adjudication hearings in Scottish Prisons.” This is a short update to that blog.  Over the years, I have learnt that the Scottish Prison Service are not always transparent when it comes to publishing  policy and procedure.  During recent Judicial Review proceedings we discovered that the Disciplinary Guide published in 2012 was superseded by new guidance in November 2018 “Guidance on Disciplinary Hearings Nov 2018.”   Unlike the 2012 guidance, the 2018 guidance does not seem to be published on the Scottish Prison Service website.

Part 6 of the guidance deals with requests for legal representation and the manner in which the Adjudicator should consider an application for legal representation from a prisoner.  The advice I would give is that prisoners should always request legal advice prior to the hearing and they should also request representation at these hearings, especially when a not guilty plea is to be entered.  Civil Legal Aid Advice and Assistance is available to provide this advice.

I don’t know if the guidance is available to prisoners.  In the past, we have been told it should be available in the prison library.  My view is that each prisoner facing a charge should be provided with a copy of the guidance and a copy of the Prison Rules so that they can fully understand the procedure and their rights before the disciplinary hearing takes place.

Disciplinary hearings can be very important, as a guilty finding may have an impact in the following ways: –

•  affect prisoner’s ability to progress.
•  trigger a security category review.
•  trigger a requirement for assessment/re-assessment for offence focused               programmes.
•  trigger downgrade from National Top End and/or the Open Estate.
•  be taken into consideration by the Parole Board for Scotland when they make an assessment of risk and ability to comply with licence conditions.

Adjudicators,  in my experience, are willing to allow a prisoner to take advice prior to the hearing.  Proceedings are usually adjourned for a very short period of usually a few days.  However, when it comes to actual representation at the hearing, I don’t think Adjudicators give requests for legal representation the consideration they deserve. I’m guessing these applications are rarely granted and, if they are, the number granted will  probably be in single figures.   SPS record keeping makes it difficult to ascertain the exact position.

If you have any questions please feel free to contact me at theprisonlawyer@gmail.com