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Equivocal plea – ‘I did it but I’m not guilty’ (31 May 2011)

Date: 31/05/2011
Duncan Lewis, Public Law Solicitors, Equivocal plea – ‘I did it but I’m not guilty’

By Seher Toguz

A recent prison law judicial review case dealt with adjudication charges against five prisoners. 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.

Following our instruction by all the claimants, 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 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.

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 were involved in the incident and accepted that they were involved in the altercation. They informed us that they were in fear of being attacked as a result of previous altercations with the same group of male prisoners which the prison was well aware of, and about which we had already written to the prison expressing our fears of further serious assaults on our clients.

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.

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.’

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.

We are grateful for Declan O’Callaghan from Landmark Chambers for his assistance in this matter.


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