I recently represented a client at an adjudication hearing before the Governor in relation to an alleged breach of prison discipline. This was the first time in my career that I had been allowed to attend such a hearing. It was suggested to me in the run up to the hearing that it may not have happened for over a decade. It is definitely not a regular occurrence but, surely, that cannot be true?
Prison discipline is regulated by Part 11 of the Prisons and Young Offenders Institution (Scotland) Rules 2011. An adjudication in not a criminal court. However, its purpose is to enforce the Prison Rules and, where a breach of discipline is found to have occurred, to punish accordingly.
Whilst the Prison Rules regulate the procedure, the Scottish Prison Service (SPS) produced a Disciplinary Hearings Guide in 2012. It will be noted from reading the manual that it provides guidance on the procedure to be followed at an adjudication hearing.
The purpose of this blog is to highlight that a prisoner can request the attendance of a solicitor at the hearing. The test applied is as follows:-
“The Governor may, on the application of a prisoner, permit the prisoner to be represented at the hearing by a legal adviser where in exceptional circumstances the Governor considers such representation is necessary or desirable.”
The criteria that the adjudicator requires to consider are detailed in Part 4 of the Disciplinary Hearings Guide. In short, they require to consider the seriousness of the charge, any points of law that may arise, the capacity of a particular prisoner to present their own case, procedural difficulties, the need for reasonable speed and the need for fairness.
If a solicitor is allowed to attend they are able to prepare for the hearing in a similar way to a criminal trial in that they will be allowed to interview witnesses and carry out locus inspections etc. An adjournment will ordinarily be granted for this purpose. The function of the solicitor representing the prisoner is dealt with at Annex 1 of the Disciplinary Hearings Guide. Civil ABWOR Legal Aid is made available to financially eligible prisoners to fund the representation.
It was interesting to note that as a result of my attendance, the SPS were also represented at the hearing. The function of the solicitor representing the SPS is dealt with also in Annex 1.
The hearing is inquisitorial in nature. The standard of proof is beyond reasonable doubt however there is no requirement for corroboration. Evidence can be led from written statements, oral evidence, CCTV and any other physical evidence, if available. The prisoner is also entitled to lead evidence in his or her defence. At the end of the evidence the adjudicator will make a finding on guilt. There was some discussion at my hearing as to whether either solicitor was entitled to make submissions before the decision was made. I would suggest that fairness should always make it appropriate to allow submissions to be made and that this should be insisted upon.
If the prisoner is found guilty the solicitor will be entitled to make a plea in mitigation before the punishment is decided.
There is an internal appeal process and if that is not successful a judicial review of the decision can be considered in certain circumstances. The appeal process and judicial review process are detailed at Parts 9 and 10 of the Disciplinary Hearings Guide.
Over the years I have been asked to provide advice on many occasions both before and after an adjudication hearing. I have in the past raised a handful of judicial review actions where failure to allow legal representation was the issue in question. I have never, until recently, been allowed to attend a hearing. I have always wondered whether there is an institutional reluctance to allow the attendance of a solicitor at the hearing or whether prisoners do not fully understand their rights to make a request for a solicitor to attend. I have always wondered if the Disciplinary Hearings Guide is readily available to all prisoners prior to hearings so that they can fully understand the process and their rights.
It may be thought, since the adjudicator cannot provide a punishment of additional days in prison, that there is no requirement for a solicitor to be present. It is accepted that the procedure is summary in nature and should be dealt with relatively quickly. However, it must be borne in mind that breaches of discipline can have considerable consequences for a prisoner in terms of his category, location and progression to less secure conditions.
It is to be hoped that in the future more solicitors will be allowed to attend such hearings, especially when the consequences of guilt may have a significant impact.