PART II PRISONERS
OFFENCES AGAINST DISCIPLINE
Offences against discipline51
A prisoner is guilty of an offence against discipline if he—
1
commits any assault;
F711A
commits any assault aggravated by a protected characteristic;
F721B
commits any sexual assault;
1C
exposes himself, or commits any other indecent or obscene act;
1D
sexually harasses any person;
2
detains any person against his will;
3
denies access to any part of the prison to any officer or any person (other than a prisoner) who is at the prison for the purpose of working there;
4
fights with any person;
5
intentionally endangers the health or personal safety of others or, by his conduct, is reckless whether such health or personal safety is endangered;
6
intentionally obstructs an officer in the execution of his duty, or any person (other than a prisoner) who is at the prison for the purpose of working there, in the performance of his work;
7
escapes or absconds from prison or from legal custody;
8
fails to comply with any condition upon which he is temporarily released under rule 9 F67...;
F249
is found with any substance in his urine which demonstrates that a controlled drug F56, pharmacy medicine, prescription only medicine, psychoactive substance or specified substanceF54... has, whether in prison or while on temporary release under rule 9 F68..., been administered to him by himself or by another person (but subject to rule 52);
F2510
is intoxicated as a consequence of consuming any alcoholic beverage (but subject to rule 52A);
F2611
consumes any alcoholic beverage whether or not provided to him by another person (but subject to rule 52A);
12
has in his possession—
a
any unauthorised article, or
b
a greater quantity of any article than he is authorised to have;
13
sells or delivers to any person any unauthorised article;
14
sells or, without permission, delivers to any person any article which he is allowed to have only for his own use;
15
takes improperly any article belonging to another person or to a prison;
16
intentionally or recklessly sets fire to any part of a prison or any other property, whether or not his own;
17
destroys or damages any part of a prison or any other property, other than his own;
F7317A
causes damage to, or destruction of, any part of a prison or any other property, other than his own, aggravated by a protected characteristic;
18
absents himself from any place he is required to be or is present at any place where he is not authorised to be;
19
is disrespectful to any officer, or any person (other than a prisoner) who is at the prison for the purpose of working there, or any person visiting a prison;
20
uses threatening, abusive or insulting words or behaviour;
F7420A
uses threatening, abusive or insulting words or behaviour, which demonstrate, or are motivated (wholly or partly) by, hostility to persons based on them sharing a protected characteristic;
21
intentionally fails to work properly or, being required to work, refuses to do so;
22
disobeys any lawful order;
23
disobeys or fails to comply with any rule or regulation applying to him;
F7523A
fails to comply with any payback punishment;
24
F7624A
displays, attaches or draws on any part of a prison, or on any other property, threatening, abusive or insulting words, drawings, symbols or other material, which demonstrate, or are motivated (wholly or partly) by, hostility to persons based on them sharing a protected characteristic;
25
a
attempts to commit,
b
incites another prisoner to commit, or
c
assists another prisoner to commit or to attempt to commit, any of the foregoing offences.
F1Interpretation of rule 51F7751A
2
For the purposes of rule 51—
a
reference to a protected characteristic means a characteristic listed in section 4 of the Equality Act 2010;
b
a prisoner commits a sexual assault if the criteria in section 3(1) of the Sexual Offences Act 2003 are fulfilled;
c
Sections 3(2), 75 and 76 of the Sexual Offences Act 2003 apply to an offence under rule 51(1B);
d
a prisoner commits exposure if the criteria in section 66(1) of the Sexual Offences Act 2003 are fulfilled;
e
a prisoner sexually harasses a person if the criteria in section 26(2) of the Equality Act 2010 are fulfilled;
f
an offence is aggravated by a protected characteristic if—
i
at the time of committing the offence, or immediately before or after doing so, the offender demonstrates towards the victim of the offence hostility based on the victim having that protected characteristic, or
ii
the offence is motivated (wholly or partly) by hostility to persons based on them sharing that protected characteristic;
g
references to particular protected characteristics, to a person who has a particular protected characteristic, and to persons sharing a particular protected characteristic, are to be interpreted in accordance with sections 5 to 12 of the Equality Act 2010;
h
reference to a person having a protected characteristic includes a person being presumed to have, or associating with those who have, a protected characteristic;
i
reference to persons sharing a protected characteristic includes persons being presumed to share, or associating with those who share, a protected characteristic.
Defences to rule 51(9)52
It shall be a defence for a prisoner charged with an offence under rule 51(9) to show that F61the controlled drug, pharmacy medicine, prescription only medicine, psychoactive substance or specified substance:
a
b
F22Defences to rule 51(10) and rule 51(11)52A
It shall be a defence for a prisoner charged with an offence under rule 51(10) or (11) to show that—
a
the alcohol was consumed by him in circumstances in which he did not know and had no reason to suspect that he was consuming alcohol;
b
the alcohol was consumed by him without his consent in circumstances where it was not reasonable for him to have resisted; or
F29c
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Disciplinary charges53
1
Where a prisoner is to be charged with an offence against discipline, the charge shall be laid as soon as possible and, save in exceptional circumstances, within 48 hours of the discovery of the offence.
2
Every charge shall be inquired into by the governor F5or, as the case may be, the adjudicator.
F43
Every charge shall be first inquired into not later, save in exceptional circumstances or in accordance with rule 55A(5) F51or 53B(3), than:
a
where it is inquired into by the governor, the next day, not being a Sunday or public holiday, after it is laid;
b
where it is referred to the adjudicator under rule 53A(2) F37or 60(3)(b), 28 days after it is so referred.
4
A prisoner who is to be charged with an offence against discipline may be kept apart from other prisoners pending the governor’s first inquiry F6or determination under rule 53A.
F69Determination of mode of inquiry53A
1
Before inquiring into a charge the governor must assess whether—
a
the charge is so serious that additional days could be awarded for the offence if the prisoner is found guilty, or
b
it is necessary or expedient for some other reason for the charge to be inquired into by the adjudicator.
2
Where the governor determines that—
a
sub-paragraph (a) or (b) of paragraph (1) applies, the governor must—
i
refer the charge to the adjudicator immediately;
ii
refer any other charge arising out of the same incident (“an associated charge”) to the adjudicator, and
iii
inform the prisoner who has been charged that the charge has been referred to the adjudicator;
b
neither sub-paragraph (a) nor sub-paragraph (b) of paragraph (1) applies, the governor must inquire into the charge.
3
If—
a
at any time during an inquiry into a charge by the governor, or
b
following such an inquiry, after the governor has found the prisoner guilty of an offence but before the governor has imposed a punishment for that offence,
it appears to the governor either that the charge is so serious that additional days could be awarded for the offence or that it is necessary or expedient for some other reason for the charge to be inquired into by the adjudicator, the governor must act in accordance with paragraph (2)(a)(i) to (iii).
4
Unless there are exceptional circumstances, the adjudicator must inquire into any charge referred in accordance with paragraph (3) no later than 28 days after the referral.
5
Following a referral under paragraph (2), before inquiring into the charge the adjudicator must consider whether—
a
the charge is so serious that additional days could be awarded for the offence if the prisoner is found guilty, or
b
it is necessary or expedient for some other reason for the charge to be inquired into by the adjudicator.
6
Where the adjudicator considers that neither sub-paragraph (a) nor sub-paragraph (b) of paragraph (5) applies, the adjudicator must—
a
refer the charge and any associated charge back to the governor for the governor to inquire into, and
b
inform the prisoner who has been charged that the charge has been referred back to the governor for inquiry.
7
Where the adjudicator considers that alternative action should be taken by the governor, the adjudicator must—
a
refer the charge and any associated charge back to the governor for review, and
b
inform the prisoner who has been charged that the charge has been referred back to the governor for review.
8
If neither paragraph (6) nor (7) applies the adjudicator must inquire into the charge.
9
A charge inquired into by the governor following referral under paragraph (6) may not be referred back to the adjudicator.
10
If—
a
at any time during an inquiry into a charge by the adjudicator, or
b
following such an inquiry, after the adjudicator has found the prisoner guilty of an offence, but before the adjudicator has imposed a punishment for that offence,
it appears to the adjudicator that alternative action should be taken; the adjudicator must refer the charge in accordance with paragraph (7).
11
Where the adjudicator has referred a charge to the governor in accordance with paragraph (7), the governor must review the charge and may—
a
take such action as the governor considers appropriate;
b
refer the charge back to the adjudicator.
12
Where the governor refers a charge back to the adjudicator under paragraph (11)(b)—
a
the governor must inform the prisoner that the matter has been referred back to the adjudicator;
b
the adjudicator may not refer the charge back to the governor, and
c
the adjudicator must either inquire into the charge, or if the prisoner has already been found guilty, impose a punishment.
F52Determination of mode of inquiry in a coronavirus period53B
1
This rule applies during a coronavirus period.
2
Where a charge has been referred to an adjudicator under rule 53A or rule 60(3)(b) and the Senior District Judge (Chief Magistrate) considers that because of the effects of coronavirus it is not reasonably practicable for the charge to be—
a
first inquired into by an adjudicator in accordance with rule 53(3)(b) or rule 53A(3); or
b
continued to be inquired into by an adjudicator,
the Senior District Judge (Chief Magistrate) may refer the charge back to the governor as soon as possible for the governor to inquire into it.
3
A charge referred back to the governor under paragraph (2) shall be first inquired into by the governor not later, save in exceptional circumstances, than 14 days after the Senior District Judge (Chief Magistrate) referred the charge back.
4
A charge inquired into by the governor under paragraph (2) is not to be treated as one being inquired into by an adjudicator, and accordingly the governor cannot impose a punishment under rule 55A (adjudicator’s punishments).
5
This rule applies to a prisoner who has been charged with having committed an offence against discipline and referred to an adjudicator under rule 53A or 60(3)(b) before the date on which the rule came into force in the same way as it applies to a prisoner who has been charged with having committed an offence against discipline on or after that date.
Rights of prisoners charged54
1
Where a prisoner is charged with an offence against discipline, he shall be informed of the charge as soon as possible and, in any case, before the time when it is inquired into by the governor F8or, as the case may be, the adjudicator.
2
At an inquiry into a charge against a prisoner he shall be given a full opportunity of hearing what is alleged against him and of presenting his own case.
F73
At an inquiry into a charge which has been referred to the adjudicator, the prisoner who has been charged shall be given the opportunity to be legally represented.
F704
The right to legal representation is rescinded if the charge is referred back to the governor by the adjudicator and inquired into by the governor.
Governor’s punishments55
1
If he finds a prisoner guilty of an offence against discipline the governor may, subject to paragraph (2) and to rule 57, impose one or more of the following punishments:
a
caution;
b
forfeiture for a period not exceeding 42 days of any of the privileges under rule 8;
c
exclusion from associated work for a period not exceeding 21 days;
d
stoppage of or deduction from earnings for a period not exceeding 84 days F9...;
e
cellular confinement for a period not exceeding F1021 days;
F11f
. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
g
in the case of a prisoner otherwise entitled to them, forfeiture for any period of the right, under rule 43(1), to have the articles there mentioned;
F12h
removal from his wing or living unit for a period of 28 days;
F78i
payback punishment, unless the prisoner is an unconvicted prisoner.
2
F13... A caution shall not be combined with any other punishment for the same charge.
3
If a prisoner is found guilty of more than one charge arising out of an incident, punishments under this rule may be ordered to run consecutively but F14in the case of a punishment of cellular confinement, the total period shall not exceed 21 days.
4
In imposing a punishment under this rule, the governor shall take into account any guidelines that the Secretary of State may from time to time issue as to the level of punishment that should normally be imposed for a particular offence against discipline.
F2Adjudicator’s punishments55A
1
If he finds a prisoner guilty of an offence against discipline the adjudicator may, subject to paragraph (2) and to rule 57, impose one or more of the following punishments:
a
F79the punishments mentioned in rule 55(1)(a) to 55(1)(h);
2
A caution shall not be combined with any other punishment for the same charge.
3
If a prisoner is found guilty of more than one charge arising out of an incident, punishments under this rule may be ordered to run consecutively but, in the case of an award of additional days, the total period added shall not exceed 42 days and, in the case of a punishment of cellular confinement, the total period shall not exceed 21 days.
4
This rule applies to a prisoner who has been charged with having committed an offence against discipline before the date on which the rule came into force, in the same way as it applies to a prisoner who has been charged with having committed an offence against discipline on or after that date, provided the charge is referred to the adjudicator no later than 60 days after that date.
5
Rule 53(3) shall not apply to a charge where, by virtue of paragraph (4), this rule applies to the prisoner who has been charged.
F38Requirement to pay for damage to prison property55AB
1
This rule applies where a prisoner is found guilty of an offence under rule 51(17) or 51(17A) in respect of destroying or damaging any part of a prison or any other property belonging to a prison (“the relevant disciplinary offence”).
2
3
A requirement imposed under paragraph (2) is referred to in this rule and in rules 55B, 61 and 61A as a “compensation requirement”.
4
The amount required to be paid under a compensation requirement must not exceed the cost of making good the damage from, or replacing any property destroyed as a result of, the commission of the relevant disciplinary offence and, in any event, must not exceed £2,000.
5
A compensation requirement may be imposed instead of or in addition to any punishment imposed under rule 55 or 55A.
6
A compensation requirement ceases to have effect after two years from the date on which it was imposed regardless of whether or not the full amount has been paid.
F23Review of adjudicator’s punishment55B
1
A reviewer means F34the Senior District Judge (Chief Magistrate) or any deputy of such a judge as nominated by that judge.
2
F40Where an adjudicator imposes a punishment under rule 55A(1), a compensation requirement under rule 55AB(2) or both, a prisoner may, within 14 days of receipt of the punishment F41or the imposition of the compensation requirement, whichever is later, request in writing that a reviewer conducts a review.
3
The review must be commenced within 14 days of receipt of the request and must be conducted on the papers alone.
F424
The review may be of the punishment, the compensation requirement or both (whether or not the prisoner requested a review of both) but must not be a review of the finding of guilt under rule 55A.
5
On completion of the review, if it appears to the reviewer that the F43imposition of the punishment, the compensation requirement or both was manifestly unreasonable he may F44do such of the following as he considers appropriate—
a
reduce the number of any additional days awarded;
b
for whatever punishment has been imposed by the adjudicator, substitute another punishment which is, in his opinion, less severe; F45...
c
quash the punishment entirely;
F46d
reduce the amount of the compensation requirement.
6
A prisoner requesting a review shall serve any additional days awarded under rule 55A(1)(b) unless and until they are reduced.
Forfeiture of remission to be treated as an award of additional days56
1
In this rule, “existing prisoner" and “existing licensee" have the meanings assigned to them by paragraph 8(1) of Schedule 12 to the Criminal Justice Act 1991 M1.
2
In relation to any existing prisoner or existing licensee who has forfeited any remission of his sentence, the provisions of Part II of the Criminal Justice Act 1991 shall apply as if he had been awarded such number of additional days as equals the numbers of days of remission which he has forfeited.
Offences committed by young persons57
1
In the case of an offence against discipline committed by an inmate who was under the age of 21 when the offence was committed (other than an offender in relation to whom the Secretary of State has given a direction under section 13(1) of the Criminal Justice Act 1982 M2 that he shall be treated as if he had been sentenced to imprisonment) rule 55 F15or, as the case may be, rule 55A shall have effect, but—
a
the maximum period of forfeiture of privileges under rule 8 shall be 21 days;
b
the maximum period of stoppage of or deduction from earnings shall be 42 days F16...;
c
the maximum period of cellular confinement shall be F17ten days;
F18d
the maximum period of removal from his cell or living unit shall be 21 days.
2
In the case of an inmate who has been sentenced to a term of youth custody or detention in a young offender institution, and by virtue of a direction of the Secretary of State under F19section 99 of the Powers of Criminal Courts (Sentencing) Act 2000F53or section 276 of the Sentencing Code, is treated as if he had been sentenced to imprisonment for that term, any punishment imposed on him for an offence against discipline before the said direction was given shall, if it has not been exhausted or remitted, F20continue to have effect:
a
if imposed by a governor, as if made pursuant to rule 55;
b
if imposed by an adjudicator, as if made pursuant to rule 55A.
Cellular confinementF3158
Before deciding whether to impose a punishment of cellular confinement the governor, adjudicator or reviewer shall first enquire of a registered medical practitioner or registered nurse, F36working within the prison, as to whether there are any medical reasons why the punishment is unsuitable and shall take this advice into account when making his decision.
Prospective award of additional days59
1
Subject to paragraph (2), where an offence against discipline is committed by a prisoner who is detained only on remand, additional days may be awarded F21by the adjudicator notwithstanding that the prisoner has not (or had not at the time of the offence) been sentenced.
2
An award of additional days under paragraph (1) shall have effect only if the prisoner in question subsequently becomes a F50... F32fixed-term prisoner whose sentence is reduced, under section 67 of the Criminal Justice Act 1967 M3F33or section 240 of the 2003 Act, by a period which includes the time when the offence against discipline was committed.
F3Removal from a cell or living unit59A
Following the imposition of a punishment of removal from his cell or living unit, a prisoner shall be accommodated in a separate part of the prison under such restrictions of earnings and activities as the Secretary of State may direct.
F82 Suspended punishments60
1
Subject to any directions given by the Secretary of State, the power to impose a disciplinary punishment (other than a caution or payback punishment) includes the power to give a suspended punishment direction.
2
A suspended punishment direction is a direction that the punishment is not to take effect, unless the prisoner breaches a condition.
3
A condition may be either that the prisoner—
a
does not commit another offence against discipline during a specified period (a “non-offending condition”), or
b
complies with or completes a specified rehabilitative activity during a specified period (a “rehabilitative condition”).
4
For the purposes of paragraph (3), a condition’s specified period may not be any longer than six months from the date of the direction.
5
An adjudicator may only give a suspended punishment direction containing a non-offending condition.
6
A governor may give a suspended punishment direction containing either a non-offending condition or one or more rehabilitative conditions.
7
Subject to paragraph (11), where a prisoner breaches a non-offending condition, the governor or adjudicator (as the case may be) must take one of the steps set out in paragraph (10).
8
Where it appears to a governor that a prisoner may have breached a rehabilitative condition without good reason, the governor must inquire into, and come to a finding as to, whether they had done so.
9
If a governor finds that a prisoner has without good reason breached a rehabilitative condition, the governor must take one of the steps set out in paragraph (10).
10
The steps referred to in paragraphs (7) and (9) are—
a
direct that the suspended punishment will be activated;
b
reduce the period or amount of the suspended punishment and direct that it will be activated as so reduced;
c
vary the original suspended punishment direction by substituting for the period specified a period expiring not later than six months from the date of variation;
d
direct that the suspended punishment will not be activated and the suspended punishment direction will remain in force.
11
A governor may not direct that a suspended punishment be activated where the suspended punishment is in respect of an award of additional days.
Remission and mitigation of punishments F48, variation of compensation requirements and quashing of findings of guilt61
1
F27Except in the case of a finding of guilt made, or a punishment imposed, by an adjudicator under rule 55A(1) the Secretary of State may quash any finding of guilt and may remit any punishment or mitigate it either by reducing it or by substituting another award which is, in his opinion, less severe.
F471A
Where a compensation requirement has been imposed by a governor under rule 55AB(2), the Secretary of State may reduce the amount of the requirement.
F39Enforcement of compensation requirements61A
1
Where a compensation requirement has been imposed under rule 55AB(2), the governor may debit any amount of money with which the prisoner has been credited in the books of the prison under rule 43(3) in order to recover the whole or part of the amount required to be paid under the compensation requirement.
2
The amount debited under paragraph (1) on any occasion must not be such as to reduce below £5 the amount with which the prisoner is credited in the books of the prison under rule 43(3).
3
Where—
a
a compensation requirement has been imposed under rule 60AB(2) of the Young Offender Rules 2000, and
b
the person against whom the compensation requirement was imposed is detained in a prison,
the compensation order may be enforced under paragraph (1) as if it was a compensation requirement imposed under rule 55AB(2).