Prison Adjudications and Added Days Explained

An adjudication is a prison disciplinary hearing, and the most serious punishment it can produce is additional days in prison, which push a release date further back.

Most people in prison will see an adjudication at some point, either their own or someone else's.

The paperwork is short, the hearing is quick, and the consequences can last months. This is how the process actually works in England and Wales.

What an adjudication is

If a prisoner is accused of breaking prison discipline, the allegation is written up as a charge. Prison Rule 51 sets out the offences against discipline. They cover a wide range of conduct, from assault and possessing an unauthorised item to disobeying a lawful order.

The charge is then heard at an adjudication. This is not a criminal court and it does not create a criminal conviction. It is an internal disciplinary process, but it is governed by rules, and those rules give the prisoner real rights.

The 48-hour rule

HM Prison and Probation Service policy says charges "must be laid on the prisoner/child as soon as possible and, other than in exceptional circumstances, within 48 hours of the discovery of the alleged offence".

The hearing is then opened quickly. Policy says the opening "will still be in time as long as it takes place before the end of the day (or next working day) after the charge is laid". The first hearing is often adjourned, but it has to be opened in that window.

Who hears it: governor or independent adjudicator

There are two routes, and the difference matters more than anything else in this article.

A governor's adjudication

Most charges are heard by a governor, or by a delegated officer of at least Band 7 who has passed adjudications training. A governor cannot award additional days.

A governor can impose a caution, forfeiture of privileges, loss of earnings, cellular confinement, removal from a cell or living unit, forfeiture or restriction of social visits, and a payback punishment, which policy defines as "a requirement to complete unpaid work that is rehabilitative or reparative in nature". Punishments can also be suspended, with either a condition of no further offending or a rehabilitative activity condition, which can run for up to six months.

An independent adjudicator

Serious charges are referred to an independent adjudicator. Independent adjudicators are District Judges or Deputy District Judges approved by the Lord Chancellor. A charge is referred where it is serious, or where referral is "necessary or expedient" under Prison Rule 53A. Once a case is referred, the hearing has to be re-opened "no later than 28 days after the date of referral".

An independent adjudicator can impose the governor's punishments, apart from payback and rehabilitative activity conditions, and can also award additional days.

How many added days

HMPPS policy sets the maximum at "up to 42 additional days for young offenders and 84 additional days for those subject to the Prison Rules", where the prisoner is eligible for that punishment.

That is per charge. Two separate charges heard on the same day are two separate awards.

What added days do to a release date

They move it. Policy requires that where additional days are awarded, "staff responsible for sentence calculation must be informed and any necessary adjustment to the prisoner's release date must be made within five days of the hearing".

Added days are applied to the actual release date, whether that is a Conditional Release Date, an Automatic Release Date, a Non-Parole Date or the end of a fixed term recall, before any discretionary Friday or pre-bank-holiday release is considered.

So the practical effect is simple and worth being blunt about: a single finding of guilt can add weeks to time in custody, and the family waiting outside will find out about it from a changed date rather than from the hearing.

Your rights at the hearing

The rules give the prisoner the right to understand what is alleged, to be present, to present their case and to call witnesses. Where the evidence is CCTV or a recording, there is provision to view it at the prison, and a copy of the adjudication paperwork must be provided.

On legal help, the two routes differ again.

• Before a governor: legal representation is not automatic. If a prisoner asks for legal advice, the governor "must adjourn the hearing for a sufficient time to allow the prisoner/child to consult a legal adviser". A request for representation is decided on what are known as the Tarrant principles, and reasons for refusing must be recorded.
• Before an independent adjudicator: "Prisoners and children are automatically entitled to be legally represented at hearings by IAs if they wish."

That entitlement is the single most useful thing to know about an independent adjudicator hearing, because it is the hearing where added days are possible.

The standard of proof

The same as a criminal court. Policy states that "the adjudicator must be satisfied that the charge has been proved beyond reasonable doubt".

When the conduct is also a crime

Where the disciplinary offence involves conduct which also amounts to a criminal offence under the general criminal law, policy says the governor must refer the charge to the police. The disciplinary process and any police investigation are separate things, and a referral does not mean a prosecution will follow.

Challenging the outcome

There are two separate routes, matching the two types of hearing.

Independent adjudicator decisions. Prison Rule 55B provides for review of an adjudicator's punishment. The application goes to the Senior District Judge, the Chief Magistrate, and policy gives the prisoner 14 days to apply. A review can cover the finding as well as any award for damage caused.

Governor decisions. These are dealt with inside the system, through the Prison Group Director.

Separately, Prison Rule 61 allows punishments to be remitted or mitigated, and allows a finding of guilt to be quashed. Policy also requires a system to be in place for eligible prisoners to apply for added days to be remitted for good behaviour.

What this means for you

• If a charge is referred to an independent adjudicator, added days are on the table. Ask for legal representation. You are entitled to it at that hearing if you want it.
• Ask for the paperwork, and ask to see any CCTV the case rests on. Both are provided for in policy.
• The charge should normally be laid within 48 hours of discovery, and a referred hearing should be re-opened within 28 days. If dates have slipped badly, that is worth recording at the time.
• The test is beyond reasonable doubt, not whether something probably happened.
• If added days have been awarded, check that the release date has actually been recalculated, and keep a copy of the adjudication paperwork and the new calculation. Errors in sentence calculation are easier to spot when both documents sit side by side.
• There is a 14-day window to apply for review of an independent adjudicator's decision. Short windows are easy to lose while waiting for post.
• No one can tell you in advance what an adjudicator will decide. Be careful of anyone who says otherwise.

An independent view of the paperwork

Case Review UK provides independent written assessments of criminal cases by senior UK lawyers and barristers, at the pre-trial, post-sentence and post-appeal stages. Fixed fee, no hourly billing. You send the documents securely and you get a written report in 7 to 14 days that says honestly what the paperwork shows, independent of the police, the CPS and the court that dealt with the case. Our Release Date and Probation Address Review looks at how a sentence has been calculated, including where added days have changed the date.

WhatsApp: +44 7417 361696
Email: enquiries@casereviewuk.co.uk

This article is general information about the law in England and Wales. It is not legal advice on any individual case, and a case review is not a substitute for a solicitor.