Alan Burcombe, Partner with Wells Burcombe Solicitors, highlights problem areas for prisoners having adjudications before the Governor.
Adjudications within the prison system are either dealt with by the Prison Governor or otherwise by an outside District Judge and depends entirely upon the nature of the charge and whether the inmate is a lifer or an inmate serving an indeterminate sentence. Lifer inmate adjudications are not heard by the external District Judge.
Issues such as disobeying orders and the less serious complaints against an inmate are routinely dealt with by the Prison Governor, whereas the more serious matters such as possession of unauthorized articles such mobile phones, drug related issues and more serious violence will usually be dealt with by the independent adjudicator, the District Judge.
Unquestionably the biggest concern relating to adjudications before the Governor concerns the fact that such hearings do not allow inmates to be legally represented unless one or more conditions are deemed to apply, known as the ‘Tarrant Criteria’.
The ‘Tarrant Criteria’ set out the circumstances in which a prison governor will consider permitting an inmate to be legally represented during an adjudication. The process will commence when the inmate first appears before an inmate and then requests an adjournment to seek legal advice, an application which never be refused.
The application must be in writing and it is best if it is drafted by a lawyer. The issues the Governor will need to address include:
- The seriousness of the charge and the potential penalty
- Whether points of law are likely to arise
- The capacity of the prisoner to present their own case
- Whether there are likely to be any procedural difficulties
- The need for reasonable speed
- The need for fairness between prisoners and prison staff.
If any one or more id found to exists, the Governor should allow the inmate to have representation present when hearing the adjudication.
Unfortunately, such applications are rarely made, and even or rarely granted.
It is hardly surprising that such applications are rarely made. The entire process in unfair and unjust. It is difficult to see how any adjudication before a Governor can be fair, especially in cases where the complaints are being made by prison officers and when the Governor is being asked to to decide who is telling the truth between prison officers and inmates. The outcome is almost always going to be in favour of the prison officer. The inmate, not being skilled in testing complaints and challenging evidence, is left to fend for himself. Many inmates don’t even understand the nature of the case against them before the process begins. Many have learning or mental health issues, all of which place them at a considerable disadvantage sand creates unfairness.
Adjudications before a Governor are often dealt with very quickly and often without hearing the full picture. Inmate applications to adjourn are often refused and so hearings begin without an inmate having valuable evidence capable of supporting their case.
It would appear that few inmates really know of the existence of the Tarrant criteria and procedure. Governors in my experience don’t seem to remind inmates before them facing adjudication of the right to make such an application.
Wells Burcombe have an extensive prison law department and have a specialist team dealing with prison adjudications across Hertfordshire, London and the South East.