Offences by Prisoners
- Psychoactive Substances Act 2016
An offence committed in prison by a prisoner may be dealt with:
- by the prison governor, using the prison's internal disciplinary procedure; or
- by a police investigation, which may lead to a prosecution.
The decision whether to call the police to investigate is made by the prison governor using guidelines provided by the National Offender Management Service (NOMS) and depends on the nature and seriousness of the alleged offence.
Where a governor decides to ask the police to investigate, he should still lay a disciplinary charge within 48 hours of discovery of the alleged offence, and the hearing should then be adjourned pending the police enquiry and CPS decision.
If the victim requires that the matter be referred to the police, the governor must accede to that request.
Clear evidence of racial motivation will strengthen the case for referral to the police.
Guidance on Specific Offences
Prison governors have been informed that the following offences should be referred to the police:
- murder and attempted murder;
- rape and attempted rape;
- threats to kill where there appears a genuine intent;
- where there is the use of a weapon causing or likely to cause serious injury;
- the occasioning of serious injury by any means;
- the use of serious violence against any person (providing that more than minor injury was the intended or likely outcome of such an assault, the actual extent of the injuries received may not be significant;
- personal sexual violation other than rape but where the victim is especially vulnerable or there has been violence or a threat of violence;
- unlawful imprisonment (hostage taking);
- escape from a closed establishment or secure escort;
- attempted escape from a closed establishment or secure escort provided that the attempt amounts to more than an intention to escape and the act done can be regarded as more than mere preparation for the offence;
- any other serious case where the means of escape have been found and where referral is needed to discover how they were obtained and to prosecute those responsible;
- possession of unauthorised weapons (firearms, imitation firearms or explosives) and other offensive weapons (knives, home made weapons, workshop instruments if there is evidence to suggest that the weapon was intended for use in the commission of a further serious criminal offence);
- supply and possession of Class A drugs with or without intent to supply;
- supply and possession of Class B drugs with intent to supply unless there is only small scale supply for no payment: possession alone should be referred only when the quantity is substantial;
- criminal damage to prison or prisoners' property (normally to a value in excess of £2000. Evidence of concerted action by a group of prisoners will strengthen the case for referral);
- arson, unless there was little risk of the fire taking hold (a cell fire may be an attempt to commit self-harm these cases should not normally be referred);
- robbery, especially where serious violence is used or threatened;
- major disturbances involving a number of prisoners where the Governor has lost or seems likely to lose control of all or part of the establishment.
Prosecutors should refer to PSI 47/2011 Prisoner Disciplinary Procedures for a full list of offences and referral criteria.
In July 2002, the European Court of Human Rights held that Article 6 was applicable to internal disciplinary hearings conducted by a prison governor. ((1) Okechukwiw Ezeh (2) Lawrence Connors v United Kingdom 39665/98 ; 40086/98 http://www.echr.coe.int). As a result of this judgment, such hearings are now held before District Judges who act as independent adjudicators.
Assault on a Prison Officer
In 2008, the Prison Service and the Prison Officers Association adopted a zero tolerance approach to violence in prisons, and in particular, to assaults on prison officers. This is likely to lead to an increase in the number of cases submitted to the CPS following a police investigation.
Prosecutors are asked to note that prison officers, while acting as such, have all the powers, authority, protection and privileges of a constable by virtue of Section 8 of the Prison Act 1952.
The Code for Crown Prosecutors makes clear that prosecutors must select charges which reflect the seriousness and extent of offending. All things being equal, where the available evidence affords the prosecutor a choice between Section 39 of the Criminal Justice Act 1988 (common assault) and Section 89 of the Police Act 1996, the latter will normally be the more appropriate charge. Where there is evidence of racial or religious aggravation, offences contrary to the provisions of the Crime and Disorder Act 1998 may be appropriate, and prosecutors should consider the 'Guidance on Prosecuting Cases of Racist and Religious Crime'.
A joint national protocol has been issued between the CPS, Police and National Offenders Management Service (NOMS) on the appropriate handling of crimes committed in prison. The protocol applies to all offences but particularly focuses on assaults on prison staff. The new guidelines will ensure that different police forces and CPS Areas pursue prosecutions of crime within prison in a more consistent and efficient way. A link to the protocol can be found here.
Code for Crown Prosecutors
Prosecutors should first check that the offence falls within the NOMS guidelines issued to prison governors. If it does not, check with the governor via the police to find out the reason for the referral and whether there are any aggravating features.
If a case is referred to the CPS the principles in the Code for Crown Prosecutors must be applied in the normal way. However, in assessing where the public interest lies, prosecutors should bear in mind the impact of the offence on the proper running of the institution and the potential impact of a decision not to prosecute.
The following factors are likely to be especially relevant in a prison context:
- the offence was committed against a person susceptible to violent attack in the course of his or her duties, e.g. a prison officer;
- the victim was vulnerable, or subjected to personal and/or repeated attacks or put in fear of attack;
- offences which may otherwise be regarded as trivial can assume a greater significance when committed in an institution because of the wider impact on internal discipline.
- a prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public (Code for Crown Prosecutors paragraph 4.12). A prison officer is a person who serves the public. A prison officer who is assaulted whilst performing his/ her duty would weigh heavily in the balance towards a prosecution
- assaults on a prison officer undermine the fundamental principle of control and order which is necessary for the running of any priosns and mainatinting safety. A prosecution would convey the right message to all prisoners that assaults on a prison officer will be taken seriously.
Public Interest: Effect of likely sentence
The Code for Crown Prosecutors states that when deciding if a prosecution is in the public interest proecutors should consider whether prosecution is proportionate to the likely outcome (paragraph 4.12f).
The Sentencing Council Definitive Guideline on Offences Taken Into Consideration and Totality clearly states that consecutive sentences will ordinarily be appropriate where any offence commited within the prison context.
A prison sentence is not a small or nominal sentence even when it is imposed concurrently. The likelihood that a concurrent sentence will be imposed is not in itself sufficient to refrain from prosecuting an offence committed by a prisoner in prison.
If the prisoner is not convicted of a criminal or disciplinary offence, his or her conduct cannot be taken into account by the Parole Board. Greater weight may be given by the Parole Board to a conviction than a governor's punishment.
On the other hand, if a custodial sentence is unlikely to be imposed, the court's only option is to impose an absolute or conditional discharge. In such cases a prosecution may not be the best way to deal with the case. The governor's powers may be a more effective way of enforcing the law. In such cases, consult the police and, through them, the prison governor before discontinuing, to enable either to make representations. If the governor indicates that disciplinary proceedings will ensue if the criminal case is discontinued, this may point against prosecution where a small or nominal penalty is likely.
(Archbold 28-219 to 28-222)
The offence of prison mutiny, contrary Section 1 Prison Security Act 1992) is committed when two or more prisoners, on the premises of any prison, engage in conduct which is intended to further a common purpose of overthrowing lawful authority in that prison. The offence is aimed at behaviour intended to make a prison, or part of prison, ungovernable.
Offences under section 1 require the consent of the DPP: refer to Consents to Prosecute elsewhere in Legal Guidance.
Guidance has been provided to prison governors by NOMS concerning the type of conduct that should be referred to the police for investigation as a possible prison mutiny. The guidance provides guidance on types of behaviour in response to which internal measures are generally appropriate and those that may justify prosecution.
A charge of Prison Mutiny will be appropriate only when the disturbance is serious. It will be particularly appropriate where the evidence fails to show clearly an identifiable culprit who can be prosecuted for a substantive offence. In many circumstances the charging of public order offences, offences against the person or against property will be preferable, notwithstanding that they took place in prison.
You should also bear in mind the provision of section 1(4) of the Act which provide that where a prisoner fails to submit to lawful authority without reasonable excuse, he shall be regarded as taking part in the mutiny. The purpose of this sub section is to catch prisoners who, by their presence and refusal to disperse, make the role of the authorities who are attempting to restore lawful control more difficult. However, the offence is confined to failure to submit etc., in the context of a prison mutiny: it should not used to cover mere defiance of, or a challenge to, lawful authority in a prison in other contexts.
You should bear in mind that the prison authorities have disciplinary measures available to them which can result in a prisoner losing up to 28 days remission for lesser offences such as:
- denying a prison officer access to part of the establishment;
- disobeying a lawful order;
- detaining a person against his will.
In many circumstances, confirmation of disciplinary proceedings will make a prosecution for prison mutiny, or other substantive offences, unnecessary.
It may be necessary for counsel to draw the background to the decision to prosecute in these cases to the attention of the trial or sentencing court. The points made are of equal application to agents and CPS advocates in the magistrates' courts.
Handcuffing of Prisoners at Court
If a prisoner is thought to be violent or likely to attempt to escape, the prison/police should request the CPS to make an application for the prisoner to wear handcuffs in court. The CPS should be provided with a report from the governor giving full reasons why an application is necessary. The CPS advocate must decide whether the application is appropriate.
A full file note should be made of the grounds of the application and any reasons for decisions. This is particularly so when verbal information is given by the police. The report from the governor should be kept on the CPS file. Refer to Handcuffing of Defendants elsewhere in Legal Guidance.
Psychoactive Substances Act 2016
The Psychoactive Substances Act 2016 (Commencement) Regulations 2016 (SI 2016) brought the provisions of the Psychoactive Substances Act 2016 into force on 26th May 2016, in so far as they were not already in force.
The Psychoactive Substances Act 2016 introduces a legal definition of a psychoactive substance, which will be used to enforce a range of criminal offences and civil sanctions. The criminal offences are:
- producing a psychoactive substance
- supplying, or offering to supply a psychoactive substance
- possession of a psychoactive substance with intent to supply
- importing or exporting a psychoactive substance
- possession of a psychoactive substance in a custodial institution
The maximum sentence, on conviction on indictment, for the production, supply, possession with intent to supply and import/export offences is seven years imprisonment. The maximum sentence, on conviction on indictment, for the offence of possession in a custodial institution is two years imprisonment.
A custodial institution refers to
(a) a prison;
(b) a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;
(c) a removal centre, a short-term holding facility or pre-departure accommodation;
(d) service custody premises.
For full information on offences arising from the Psychoactive Substances Act 2016, advice on charging practice and factors to consider when reviewing such cases, please refer to the Legal Guidance on Psychoactive Substances.