Offences by Prisoners
Principle
Venue
An offence committed in prison by a serving 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 Home Office and depends on the nature and seriousness of the alleged offence.
Where a governor decides 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 should accede to that request.
Clear evidence of racial motivation will strengthen the case for referral to the police.
Guidance
Guidance on Specific Offences
Prison governors have been informed that the following offences must be referred to the police:
- murder and attempted murder;
- manslaughter;
- rape and attempted rape;
- threats to kill, where there appears a genuine intent;
- where there is the use of a weapon likely to cause serious injury;
- the occasioning of serious injury by any means;
- the use of serious violence even if minor injury only is caused;
- personal sexual violation, especially where the victim is vulnerable or there has been violence or a threat of violence;
- unlawful imprisonment (hostage taking);
- escape from a secure establishment or secure escort, and attempted escape from a secure establishment or secure escort;
- attempt to escape especially if it involved the possession of items intended to facilitate the escape (eg. weapons);
- escape from a non-secure environment will not normally be serious enough to refer to the police unless further offences were committed in the course of the escape;
- criminal damage by an individual (i.e. over £2000) or group action, even where the value is less;
- arson, unless there was little risk of the fire taking hold (a cell fire may be an attempt to commit harm - these cases should not normally be referred);
- robbery, especially where serious violence is used or threatened.
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 http://www.echr.coe.int). As a result of this judgment, such hearings are now held before District Judges who act as independent adjudicators.
Code for Crown Prosecutors
Check first to see if the offence falls within the above guidance given to prison governors. If it does not, check with the governor via the police to see if 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.
Public Interest: Effect of likely sentence
The Code advises that the balance of the public interest may be against a prosecution if the court is likely to issue a very small or nominal penalty, or the offence involved minor harm or loss.
Concurrent sentences are frequently imposed on serving prisoners who commit offences in prison. This is always the case for life prisoners. 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.
Prison Mutiny
(Archbold 28-17 to 28-222a)
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 DPP consent . <refer to Consent to prosecute, elsewhere in this guidance>.
Guidance has been provided to prison governors by the Home Office 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 subsection 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.
Procedure
Crown Court
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
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. <see also Handcuffing of Prisoners, elsewhere in this guidance>
Useful links
<Crown Court Case Preparation Package>
<Handcuffing of Prisoners (Section 15)> elsewhere in this guidance
Further information
((1) Okechukwiw Ezeh (2) Lawrence Connors v. United Kingdom http://www.echr.coe.int )