UK: Equivocal Plea – ‘I Did It But I’m Not Guilty’: The Need For Advice For Prisoners

Last Updated: 27 June 2011
Article by Seher Toguz

Duncan Lewis recently pursued a prison law judicial review case which dealt with adjudication charges against five prisoners. The case (a) highlights the need for proper representation for prisoners, and (b) is sadly illustrative of the attitude of many prisons and their governors towards legal representatives, especially those that request disclosure and challenge the official line.

The facts

The incident

An incident took place in HMP Full Sutton in which the five claimants fought with another group of male prisoners. Hot oil was thrown and a number of prisoners and a prison staff were injured. The Prison Service decided to take disciplinary action against the five claimants under Prison Rule 1999. All five claimants subject to disciplinary action are life-sentenced prisoners.

Duncan Lewis were aware of previous serious incidents involving assaults upon some of these claimants and had already written to the prison expressing our fears of further serious assaults on our clients prior to the incident in question.

Following the commencement of disciplinary action, we wrote to the prison on a number of occasions requesting full disclosure of relevant evidence and for sufficient time to be granted for instructions to be taken following disclosure. These letters were not responded to in full. We therefore wrote a letter before action indicating that we were considering a judicial review action if they failed to respond and provide us with the requested information.

The prison responded to confirm receipt and stated that our requests will be 'considered in due course'. Although this letter was dated the 29th July 2010, it did not even inform us of the date of the adjudication hearing. The next day the claimants (but not Duncan Lewis) were given 24 hours notice of the adjudication hearing which was then heard on the 31st July 2010.

The prison later argued that as the original adjudication had opened on the 21st June 2010, been referred to the police and also adjourned for legal assistance at the request of the claimants. The prison's response to our requests for information was that 'the six week period was more than reasonable opportunity' for our clients to seek legal assistance. This ignored the fact that the claimants had sought legal advice during that time and we were trying to obtain the relevant disclosure from the prison in order for us to advise our clients accordingly.

In their response letter the prison also stated that upon the police deciding not to proceed with the subsequent police investigation, it was decided not to refer the charges to an Independent Adjudicator (as should be done in serious cases) and for the matter to be dealt with by the Governor. In other words the offences had apparently changed overnight form being too serious for the prison system to deal with to insufficiently serious to warrant the safeguard of an Independent Adjudicator within the prison system.

The disciplinary hearing

At the commencement of the hearing on 31 July, all the prisoners pleaded not guilty. The hearing then proceeded with the reporting officer's evidence and the CCTV footage of the incident was shown. The prison stated in their letter that the claimants changed their pleas to guilty and admitted to the assaults after watching the CCTV evidence. All five claimants were punished with 2 weeks segregation.

However, the claimants informed us that their guilty plea was for the fact that they accepted that they were involved in the altercation, and they insisted that they had acted in self-defence.

The adjudication charges were appealed to the Briefing and Casework Unit at Prison Service Headquarters which upheld the Governor's adjudication decision. Their reasons were listed as follows: -

  • The offences took place as described and the appropriate charges were laid within prescribed timescales;
  • All preliminaries were completed thoroughly;
  • The adjudicator fully investigated the charges and took into account any defence or mitigation presented;
  • Guilt was proved beyond reasonable doubt and the punishments awarded were appropriate.

However, their letter failed to deal with all the points we raised in our appeal.

The judicial review

We therefore lodged an application for judicial review against the Governor of HMP Full Sutton (1st Defendant) and the Secretary of State for Justice (2nd Defendant). Judicial relief was sought upon the following grounds:

  1. The failure of the First Defendant to act fairly in his consideration of the claimants' adjudications, to act in accordance with the relevant policy and to act in accordance with the Human Rights Act 1998.
  2. The unreasonable and unlawful decision of the second defendant through the briefing and Casework Unit of the Ministry of Justice, to uphold the First Defendant's decisions.

The Honourable Mr Justice Collins granted permission on the 17th March 2011. He made the following observation in his Order: - 'how it can be asserted that there was a proper and fair procedure before the hearing is beyond me'. He further observed that 'the admissions of assault did not necessarily or invariably lead to a finding of guilty. Legal advice was important.'

Oddly, despite notification of the judicial review challenge the prison proceeded to destroy all of the evidence upon which the charges were based. Following the grant of permission, the defendants have now agreed to quash the adjudication charges and reimburse the claimants for any loss of earnings suffered as a result of the adjudication.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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