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The prisoner's position was particularly invidious because he wished to be actively involved in the preparation of his defence against the outside charges, including researching the relevant case law. His restricted access to law books and case reports and the limited number of telephone calls he was permitted to make to his lawyers while he was in H unit were having a marked effect on him in his court appearances. But this prisoner was prejudiced not only in the preparation and presentation of his defence on the outside charges; he was further prejudiced in relation to the internal disciplinary charges pending against him. The majority of those accused with him of being involved in the riot of 7 June had been charged and convicted in disciplinary court in July and had been given sentences which included punitive segregation. By the beginning of September these sentences had been completed and the prisoners had been released into the population or transferred to other institutions. Yet this prisoner had served three months in administrative segregation and, quite apart from whatever sentence might be imposed if he was convicted at the disciplinary hearing on the internal charges, he had already served more time in segregation than any of his co-accused. The prejudice in this case was intensified because the prisoner, by his own account, was not present at certain locations where the incidents that gave rise to the charges against him were alleged to have taken place. In an interview with me he insisted that he was in a completely different part of the prison when the incidents occurred and that his presence there could be corroborated by other prisoners who were not involved in the riot. However, because he had not had a hearing before a disciplinary board and because the Segregation Review Board did not conduct any examination of its own into the incident, his prima facie defence to the charges had not been taken into account by those reviewing his administrative segregation.

Applying the criteria developed in the Segregation Code, this prisoner's segregation for so lengthy a period would not have been justified. The outstanding charges do not warrant segregation after the riot any more than they did before, particularly in light of the prejudice caused by his segregation to the preparation and presentation of his defence. While segregation would have been justified for a limited period after the riot to permit the investigation of the events of 7 June, the institution should have proceeded to have the disciplinary offences against this prisoner dealt with speedily. When this did not happen, and when the threat of any recurrence of a major disturbance in the institution had receded, the prisoner should have been released into the population. If at a later time the charges against him resulted in a conviction and a sentence of punitive segregation, he would have had to serve that sentence at that time.

One of the realities facing the authorities in maximum-security prisons is that they become aware of situations that pose threats to the security of the institution or to individuals within it which, while justifying preventive action by the authorities, may not be amenable to formal methods of proof. This poses a dilemma for the prison authorities as internal disciplinary charges are increasingly subjected to the requirements of due process. At Kent, as at other maximum-security institutions, the authorities receive much information (typically from prison informers) which, in their view, justifies investigation and action but which does not lead to specific charges being laid against prisoners. However, this informal covert intelligence-gathering regularly leads to transfers to other institutions and to decisions to place prisoners in administrative segregation. The need to be able to take such action is compelling from the institution's perspective of preventive security; but the danger of abuse of segregation on suspicion without formal proof of charges is no less compelling from the prisoner's perspective. The criteria I have proposed acknowledge the need for an institutional authority to be able to segregate without preferring formal charges, but seek to limit that authority to a restricted range of situations. Where a decision is made that no charges will be laid, segregation beyond the investigative stage would be authorized only

3... where there are grounds to believe beyond a reasonable doubt that the prisoner has committed, attempted to commit or plans to commit acts which represent a serious and immediate threat to the physical security of the institution or the personal safety of staff or prisoners.

The requirement that the grounds be established beyond a reasonable doubt, like the equivalent standard of proof in a criminal trial, is designed to ensure that the prisoner is not subjected to a serious deprivation of his liberty (albeit institutional liberty) unless there is a clearly established case. Indeed, 'proof beyond reasonable doubt' is the standard required in the commissioner's directive dealing with the hearing of serious disciplinary charges; this is a clear affirmation that such a standard has relevance behind prison walls. However, the incorporation of the criminal standard of proof does not mean that the segregation decision is subjected to the full procedural panoply of a criminal trial. In particular the evidentiary rules are not imported into the code. While the code permits reliance on a wider range of evidence than would be admissible in a criminal court, under section 3 that evidence must meet the same high standards of proof as in a criminal case.

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