This instruction applies to:- / Reference:-
Prisons / PSI31/2013
Issue Date / Effective Date
Implementation Date / Expiry Date
24 October 2013
(Revised) / 01 November 2013 / 29 September2017
Issued on the authority of / NOMS Agency Board
For action by (Who is this Instruction for) / All staff responsible for the development and publication of policy and instructions
NOMS HQ
All prisons
High Security Prisons only
Contracted Prisons*
Governors
Heads of Groups
* If this box is marked, then in this document the term Governor also applies to Directors of Contracted Prisons
Instruction type / Service Specification Support
For information / All staff in prison establishments
Provide a summary of the policy aim and the reason for its development / revision / This instruction has been developed to provide guidelines and mandatory actions for Adjudicators and operational staff to assist in the recovery of monies from prisoners for damage or destruction to prisons and prison property. The intention was announced by Ministers on 30 April 2013.
Update: 24 October 2013 – Amendments have been made as per the Notice to Governors on 24 October 2013 from Simon Greenwood, Joint Head of Policy team, NOMS Equality, Rights and Decency Group. This includes at Annex A the price of replacing a cell locker (whitewood) and revisions to additional adjudication forms DIS 2, DIS 3, DIS 8, IA 3 and IA 4. Paragraph 1.2has been amended to take account of the changes to the aforementioned forms. Paragraph 4.6 and Annex B (which captures further amendments to the revised DIS 7 form that was issued with the original version of PSI 31/2013), have also been amended. The changes reflect the new powers in respect of the non-punitive compensation requirements.
Contact / Equality, Rights & Decency Group
Nigel Mulcaster - Tel: 0300 047 6619
Paul Norman - Tel 0300 047 5687
Associated documents / PSI 47/2011 – Prison Discipline Procedures
PSI 30/2013 - Incentives andEarned Privileges
PSI 26/2011 – 08/2013 – NOMS Finance Manual
Replaces the following documents which are hereby cancelled: - None
Audit/monitoring:- Deputy Directors of Custody and Controllers will monitor compliance with the mandatory actions set out in this Instruction.
Introduces amendments to the following documents: -PSI 47/2011: Prisoner Discipline Manual
UNCLASSIFIED PAGE 1
CONTENTS
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Section / Subject / For reference by:1. / Executive Summary / Governors and Directors of contracted prisons, Finance staff and all staff involved in the adjudication process.
2 / Operational Instructions
Prison & YOI Rules
3 / General Principles
4 / Matters for the Adjudicator
5 / Matters for the Governor
6 / Appeals
7 / Priority of Payment
8 / Replacement of Items
9 / Monitoring
Annex A / Costof Items
Annex B / Revised AdjudicationForms
Annex C / Prisoner Notification of Recovery of Monies
1.Executive Summary
1.1This PSI applies to all prisoners. It sets out amendments to Prison Rules and Young Offender Institution (YOI) Rules which willtake effect on 1November 2013 to i) requireAdjudicators to impose a requirement that a prisoner pay compensation for the destruction or damage caused to prisons and prison property and ii) allow Governors and Directors of contracted out prisons to take monies directly from prisoners’ Private Cash, Savings and Spend accounts to satisfy the compensation requirement.All subsequent references to Governors in this PSI includes Directors of contracted out prisons. Such references identify issues for prison staff rather than Adjudicators (regardless of whether they are Independent or Governor Adjudicators) to consider and it will be for the Governor to determine at which level any decisions are taken.
1.2This PSI supersedes paragraphs 2.84 and 2.129 in PSI 47/2011. It also amends the DIS 2, DIS 3, DIS 7, DIS 8, IA 3 and IA 4 forms and sets out issues for Adjudicators to consider before making an award to recover monies from prisoners.
Background
1.3On 30 April 2013, as part of a wider announcement concerning the outcome of a review of the Incentives and Earned Privilege policy, Ministers made it clear that prisoners would be required to pay for the damage that they cause to prisons and prison property. It was subsequently decided that the adjudication process must be used to determine whether a prisoner should pay for the damage and the amount of money to be recovered.
1.4Historically, there has been no provisionin the Prison or YOI Rules to order compensation and/or to deduct monies from prisoners to compensate for the cost of repairing any damage that they caused. A Statutory Instrument was laid before Parliament to amend the Rules accordingly.
Desired Outcomes
1.5 Where a prisoner has committed an offence, on or after 1 November 2013, under Prison Rule51 (17) or 51 (17A) / YOI Rule 55 (18) or 55 (19)in relation todamage caused to prisons or to prison property, and has subsequently been found guilty, Adjudicators mustmake use of the new power to require the prisoner to pay for the damage caused.
1.6Prison staff manage the recovery of monies and ensure P-NOMIS and the prisoner’s records reflect the terms of the debt and any balance owed.
Application
1.7Adjudicators and Governors must be familiar with all sections of this PSI.
1.8Finance staff must be familiar with the financial aspects involved in the recovery of monies from prisoners in relation to damage to prisons and prison property.
Mandatory Actions
1.9 Adjudicators, Governorsand finance staff must ensure that they comply with the content of this PSI.
Resource Impact
1.10We do not anticipate a significant rise in the number of adjudications for damage to property. However, there will be some resource implications for establishments in managing the deductions of monies from prisoner accounts.The cost of these changes should be minimal and will need to be absorbed within existing budgets.
(Approved for Publication)
Digby Griffith
Director of National Operational Services, NOMS
OPERATIONAL INSTRUCTIONS
2.Prison and Young Offender Rules
2.1Prison Rule 55AB and Young Offender Institution Rule (YOI) 60AB, have been introduced to requireAdjudicators to impose a requirement for prisoners to pay fordestroying or damaging any part of a prison or any other property belonging to a prison. The award must be made only following a finding of guilt for a charge under Prison Rule 51 (17) or 51 (17A) or YOI Rule 55 (18) or 55 (19) which involves the destruction of ordamage to any part of a prison or prison property and may include the cost of labour to put it right (see paragraph 5.2 for further details).
2.2Prison Rule 61Aand Young Offender Rule 64Ahave also been introduced to provide Governors with the power to take money directly from prisoners’ prison accounts to satisfy compensation requirements imposed in relation to damage caused to prison property. The power can be exercised only following a finding of guilt on an adjudication concerning destruction of or damage to prison property and only where the Adjudicator has made a specific award requiring the prisoner to pay for the damage.
2.3Furthermore Prison Rule 55B and YOI Rule 60B have been amended to allow for the appeal part of the process to encompass the new award for recovery of monies for the destruction or damage caused.
3.General Principles
3.1The overriding principle is that the recovery of money for the destruction of or damage to a prison or prison property is not a punishment but a way of compensating NOMS for the loss. The intention is that the prisoner should be required to “put right” the damage caused and there must not be any punitive element to the amount the prisoner is required to pay.
3.2A requirement to pay compensation can be made for up to 100% of the damage caused, including labour costs (see paragraph 5.2 for further details). However the maximum must not exceed £2,000 and must never exceed the value of the damage caused.
3.3A requirement to pay compensation must be imposed following a finding of guilt on any of the charges listed in paragraph 2.1 above. The presumption will be that a requirement to pay 100% of the cost of the damage caused will be made when a prisoner is found guilty of damaging or destroying prison property unless there are sufficiently compelling reasons to make a lesser award. Such a reason may be where the prisoner has acted completely out of characterand in response to very distressing personal circumstances.
3.4Payment can be by way of deductions from a prisoner’s prison accounts and can be in the form of i) a lump sumii) periodical deductions or iii) a combination of the two.However, any outstanding debt for a compensation requirement will last no longer than 2 years after the imposition of the award or the prisoner has reached his/her Sentence Expiry Date, whichever occurs first. After this time no further money will be recovered for this compensation award from the prisoner.
3.5Deductions can be made from all three prisoner accounts i.e. Savings, Private Cash and Spends accounts. However, prisoners must be left with a minimum amount to purchase necessary items and remain in contact with their family/friends. It will be for Governors, outside of the adjudication process, to set a minimum amount to be left in the prisoner’s accounts, taking into consideration the prisoner’s individual circumstances, but this must not be less than £5 per week.Anything over the minimum determined by the Governor must be recovered from the prisoner’s accountsuntil the full amount of the compensation requirement has been paid (see paragraph 5.3 below).
3.6Recovery must cease on release from prison custody (excluding ROTL) but the amount owing under the compensation requirementwill remain due until the 2 year time limit expires or until the prisoner reaches his/her Sentence Expiry Date, whichever occurs first. Therefore, if a prisoner is recalled to custody on a sentence that was being served when the compensation requirement was imposedthe balance of the debt can be recovered provided the time limit has not expired.Similarly, if an unconvicted prisoner is bailed and then returned to custody on the same charge(s), recovery can continue. Recovery must not continue if the prisoner is returned to custody solely on a different sentence/charge.
3.7Recovery of any outstanding debt must continue on transfer.
3.8Where offenders transfer from the contracted estate to public sector, the P-NOMIS system must be updated with the obligation prior to transfer or the receiving public sector prison must be informed at the earliest opportunity of all details including the amount paid and supporting adjudication number.
3.9 For offenders received into contracted sites, account balances must be cleared from P-NOMIS and the obligation screen checked in order to transfer any information if required.
3.10Detailed instructions can be found in Chapter 15.15 of PSI 26/2011 – AI 08/2011 - NOMS Finance Manual.
3.11Paragraph 1.13 of PSI 47/2011states that “it would not normally be appropriate to lay disciplinary charges where the prisoner’s actions were related to self-harm or preparations for it.”That principle remains in place and is not amended by the content of this PSI.
4.Matters for the Adjudicator
4.1At the start of the hearing the Adjudicator must inform the prisoner that, if found guilty, the prisoner will be required to pay compensation for the damage caused and that monies will be recovered from the prisoner’s accounts to satisfy the compensation requirement.
4.2The Adjudicator mustalso specify the estimated total value of the damage caused. To assist with their deliberations Governors must make available to the Adjudicator their assessment of the cost of the damaged caused (see paragraphs5.1 – 5.3 below).
4.3The Adjudicator must give the prisoner the opportunity to raise any mitigating factors and these must be recorded in the record of hearing.
4.4Following a finding of guilt, the Adjudicator must:
- Specify the total amount to be recovered – there is a presumption that this will be the full value of the damage unless there are sufficiently compelling reasons to make a lesser award,but the amount must not exceed £2000 (see paragraphs3.2 and 3.3above). Adjudicators must not concern themselves with the process of recovery or attempt to set weekly deductions;
- Make it clear that the process of recovery will be determined outside of the adjudication but that a minimum of no less than £5 will be left in their accounts after payments towards the damage have been taken;
- Explain that the debt will lastfora maximum of 2 years from the date of the award or until the prisoner’s Sentence Expiry Date, whichever occurs first.
- Not suspend the compensation award as the recovery of monies is not a punitive award;
- Not impose a stoppage of, or deduction from, earnings as a punishment, as this may impede the recovery of monies for the damage caused. However, it will remain open to the Adjudicator to award another punishment(s) for the behaviour such as a loss of privileges.
4.5By way of example, an award may be couched in the following terms:
“It is estimated that cost of repairing the damage you have caused is £30. Having taking into account the evidence made available at this adjudication, including your representations, I am making an award for recovery of £30 for the damage. Outside of this adjudication the prison will assess how much will be deducted from your accounts at this stage. Any remaining balance will be recovered as and when further monies become available. You will be left with a minimum amount in your prison accounts, to be determined, but it will be no less than £5 per week after any deductions for this compensation award are taken. Any outstanding debt will last for a maximum of 2 years or until you have reached your Sentence Expiry Date, whichever occurs first.”
4.6The DIS 7 – Adjudication Result form has been amended to include the new award for recovery of monies and a copy is attached at Annex B. Also attached at Annex B are revised adjudication forms that take account of the new powers in respect of the compensation requirements.
Referral to the Police to Investigate
4.7Disciplinary charges should be laid in the normal way within 48 hours of the incident, and an adjudication opened on the following day. After the opening procedures have been completed the Adjudicator should consider whether the charge against the prisoner is serious enough to be referred to the Police for further investigation, and possible prosecution in the courts. The decision on referral to the police is for the Adjudicator, taking account of the individual circumstances of the case. If the charge is referred the adjudication hearing must be adjourned until the outcome of any police investigation is known. The case should not be referred to an Independent Adjudicator at this stage, since the 28 days time limit for an Independent Adjudicator to open a hearing may expire before the police/Crown Prosecution Service reach a decision. The prisoner should be kept informed of any progress at suitable intervals. If a prosecution goes ahead, the adjudication will not proceed. If the prisoner is not prosecuted in a court the adjudication may then resume, provided the delay in reaching a decision on prosecution has not made it unfair to proceed (natural justice), or the adjudication would rely on the same evidence that was known to the Crown Prosecution Service, which they had decided would not support a prosecution.
Referral to Independent Adjudicators
4.8In accordance with PSI 47/2011only those matters where the offence is serious enough to merit the award of added days if the prisoner is found guilty should be referred to an Independent Adjudicator. The test for seriousness is whether the offence poses a very serious risk to order and control of the establishment, or the safety of those within it. Governors should also bear in mind that Independent Adjudicators are an expensive resource, as is the legal aid that prisoners may claim for representation at such hearings. Each case must be assessed on its merits.
Requests for Legal Representation
4.9This PSI does not alter how Adjudicators should consider requests for legal representation. In accordance with paragraph 2.17 of PSI 47/2011:
“If the accused prisoner requests legal representation or a McKenzie friend at the hearing the Adjudicator must consider this request under the ‘Tarrant Principles’ ……... If the request is refused the reasons must be recorded on the record of hearing.”
5.Matters for the Governor
5.1Governors must ensure that theAdjudicator is provided with an assessment of the cost of the damage caused. To assist in assessing the cost of the damage, a list of the replacement cost of some items is attached at Annex A. The list is based on 2013/14 prices, is only intended as a guide and is not exhaustive.Governors will need to assess the cost of damage to items on a case by case basis, taking appropriate account of any localissues which may affectcostings of materials.
5.2To help simplify matters and to ensure that the adjudication process is not unnecessarily delayed, where there is no better evidence available,the cost of labour must be set at £12.80 per hour. This is based on a generic cost of prison staff time but, for the purposes of this process, it applies equally to contractor’s time where there is no better evidence of their actual cost.
5.3Where possible the damage caused should be photographed and a copy should be made available to the Adjudicator.
5.4Where an Adjudicator makes anaward for compensation to be paid, the Governor must:
- Take into account the prisoner’s individual circumstances and determine the minimum amount that he/she should be left with in their accounts after deductions are made for compensation towards the damage caused. This must not be less than £5and any consideration should include, but is not limited to:
i)The prisoner’s need to maintain contact with family/friends;
ii)The need to purchase any necessary items;
iii)Any specific needs on ROTL or release, if appropriate;
iv)When considering the recovery of monies from young people (under 18s), Governors must pay particular attention to the requirement to protect and safeguard their welfare and the heightened need to maintain family contact;
- Decide how much can be taken from the prisoner’s accounts by way of a lump sum. This must be everything that is available above the minimumset by the Governor;
- Arrange for any outstanding balance to be recovered as soon as any monies above the minimum become available. This should be before any monies are authorised for purchases or sent out of the prison from the prisoner’s accounts;
- Inform the prisoner of the decision. To assist Governors in notifying prisoners and the prison’s Finance Department of their decisions, a pro forma is attached at Annex C.
5.5Governors must ensure that recovery does not adversely impact on our aim to reduce reoffending by causing prisoners financial hardship on release. Discharge grants are exempt from deductions. If a prisoner has insufficient monies to contribute even a small amount to the damage caused whilst still allowing the minimum (which must be at least £5 per week – see paragraph 7.3) in their accounts, then no money should be taken from their accounts.