This article is part of the Prison law during the coronavirus pandemic series:

With all prison visits being cancelled it is highly unlikely that adjudications before Independent Adjudicators will be taking place.  Restricted movement in prisons combined with potential self-isolating prisoners, suggests that segregation units (sometimes used for the purpose of adjudications) could be used to house either those with COVID-19 and related symptoms or those at high risk of obtaining the virus. As adjudications often taken place in small cramped rooms, prisoners, lawyers and judges alike should be extremely cautious to let them proceed.

To date there has been no published statement online from the Chief Magistrate as to whether he will continue to send Independent Adjudicators to prisons. From the response we have seen in the criminal courts, it is anticipated that Independent Adjudicators will not attend prison to deal with cases. Whereas in crime in the Crown Courts, judges have been attending remotely via telephone and dealing with lists of cases via using a digital case system, there are limited facilities to develop such a working method in prisons.

Additionally, with resources running low, it could be anticipated that prison staff may lay less charges against prisoners during this difficult time. Prison Governors may also not be able to comply with their duties under Rule 53(A) of the Prison Rules 1999 (as amended) to inquire into any charges laid the next day, or at a later date in ‘exceptional circumstances’. If prison adjudications go ahead, they could be adjourned due to staff having other pressing duties. It will always be important where the evidence of an officer is not accepted that they be called for cross-examination, to do so otherwise would be relying on hearsay evidence, and absent any other evidence, a finding of guilt on hearsay alone is highly likely to be challengeable in the courts.

It therefore appears that it is highly likely that all proceedings before the Independent Adjudicator will be adjourned until a later date. This is not an uncommon phenomenon for those who cut their teeth attending these hearings. Whole lists of adjudications are often moved suddenly and without warning.

Due to the inevitable delay that will occur in adjourning proceedings prison law practitioners should be mindful of the Prison Rules 1999 (as amended) and how they apply to their client’s cases.

Prison governors under Prison Rule 53(3)(A) must refer a case to the Independent Adjudicator and an Adjudicator must inquire into the charge, save in exceptional circumstances no later than 28 days after the charged was laid. Previous experience has suggested some London prisons use a video link to Westminster Magistrates’ Court in order to comply with this critical time limit. It is unclear if this will continue given the current climate.

If a charge has not been inquired into by an Adjudicator within the 28-day time limit, absent exceptional circumstances they have no power to hear it, and the referral should be quashed as a nullity. Prison governors referring charges to the IA may be able to rely on exceptional circumstances for referring charges late due to COVID-19. However, any such application must be based on evidence. A general response that these are difficult times for the prison service should not trump the requirements of procedural fairness. Independent Adjudicators should be cautious in their approach to this question and should not consider charges that have not been properly brought within time. A failure of an Independent Adjudicator to turn their mind to these issues leaves a prisoner with a potentially strong claim for judicial review.

In the perhaps unlikely event that either independent or standard adjudications go ahead it is important that prison lawyers turn their minds towards issues regarding procedural fairness. Whilst legal advisers cannot currently obtain access to clients, it would be unlawful to proceed with an adjudication if a prisoner had requested legal advice and/or representation but had not had sufficient time or opportunity to obtain either. Both prison governors and Independent Adjudicators have a duty to comply with the duties of procedural fairness. Independent Adjudicators also have a duty under Article 6 of the European Convention on Human Rights to make sure that a prisoner has had the opportunity to be represented, if the charge is serious, and there could be an award of additional days. By refusing such a request, in the current climate, an independent adjudicator would surely be opening themselves up to potential litigation.

Philip Rule, Head of Public Law, No5 Barristers’ Chambers Chambers

Ian Brownhill, Deputy Head of Public Law, No5 Barristers’ Chambers.

Stuart Withers, Barrister

Benjamin Harrison, Barrister

Avril Rushe, Barrister