Further to a letter, dated 17 January 2019, sent to Michael Spurr, Chief Executive of HM Prison and Probation Service, from Lubia Begum-Rob, Director of Prisoners’ Advice Service (PAS), the governor of HMP Durham has been ordered to undergo training after delivering two unlawful verdicts in adjudications that were spotted by the charity when they were broadcast on Paddy Wivell’s Channel 4 documentary ‘Prison’ on Monday 14 January 2019.
The episode – third in the series of three – focussed on violence between prisoners and staff at Durham, and included the details of an incident in which a prisoner, named as Tommy Calder, was put on the Basic regime – a reduction in privileges and removal of his TV – for an alleged assault on a staff member.
This resulted in an investigation both into the prisoner’s allegation that staff had assaulted him and into adjudication proceedings that were lodged against him.
The documentary shows a governor, who is not named, conducting two adjudications against the prisoner; the first being for possession of a weapon and the second for the above-mentioned assault. In the episode, the governor found Mr Calder guilty on both counts. In relation to the first, she stated: ‘You have given me no reason to doubt the statement of the officer, so I find the charge proven’ and on the second, that: ‘On the balance of probabilities, I find the charge proven’.
Although the standard of proof applied in the first decision is somewhat unclear, PAS noted that the standard of proof applied in the second was clearly unlawful. The charity recognised that all guidance on prison adjudications very clearly states that the appropriate test is ‘beyond reasonable doubt’, and not the ‘balance of probabilities’. PAS cited Prison Service Instruction 47/2011, which was in force at the time the documentary was filmed, and which states:
1.6 Adjudications are inquisitorial rather than adversarial – i.e., the role of the adjudicator is to inquire impartially into the facts of the case, hearing evidence from the reporting officer, the accused prisoner and any witnesses, and taking into account any written or other physical evidence (e.g., witness statements, MDT reports, CCTV recordings, items alleged to have been found, etc). The adjudicator then weighs up all the evidence and decides whether or not the charge has been proved beyond reasonable doubt, and if proved, the appropriate punishment. The adjudicator will dismiss the charge if not satisfied that it has been proved beyond reasonable doubt.
2.43 An adjudicator satisfied beyond reasonable doubt that a charge has been proved will find the prisoner guilty or, if not satisfied, will dismiss the charge.
In her letter to Michael Spurr, PAS’ Director asked for the adjudication against Tommy Calder to be quashed, along with all adjudications that this governor has sat on.
In his response letter, dated 1 February, Michael Spurr stated, “You are correct that the third episode of Prison did show a member of staff improperly conduct two adjudications, in contravention of Prison Service Instruction 47/2011 (which was in effect at the time). As you say, the appropriate test for adjudications is proof beyond reasonable doubt, and not on the balance of probabilities.
“I can confirm that as soon as we found out about this issue, we quashed the findings of the two adjudications completed for Mr Calder. The adjudicating Governor in this instance will also receive additional training, and has not undertaken any adjudications since. We are currently in the process of reviewing other adjudications which have been conducted by this member of staff.”
In their coverage of the incident, The Guardian newspaper quoted PAS’ Director, who said that she was, “pleased that the prison service had faced up to its responsibilities in the matter, but concerned that what the documentary showed could be the tip of the iceberg”.
The episode in question was seen by 1.4 million viewers.
You can read The Guardian article here: Prison service quashes governor’s rulings seen in Channel 4 show