Mr McKenzie's Friend

Prisons can be very strange places. Where else can you rub shoulders daily with everyone from multiple murderers and armed robbers on one hand to burglars and bent solicitors on the other? On the other hand, some inmates can be genuinely interesting people with a wealth of practical experience and that can come in very handy when dealing with HMPS' internal ‘justice’ system.

No Legal Aid for cons...?

I think that it’s a fair bet that the vast majority of people outside prisons (other than lawyers and law students) are unlikely to have come across the case of McKenzie v. McKenzie [1970]. It almost sounds like a case of out fiction, rather like Jarndyce and Jarndyce, the famous Chancery inheritance case created by Charles Dickens for his novel Bleak House. However, this is a real case and is of relevance to prisoners facing charges for allegedly breaking prison rules.

McKenzie v. McKenzie was a contested divorce action in which the eponymous Mr McKenzie had lost the services of his lawyers when his Legal Aid was withdrawn. Since he no longer had legal representation, he wanted to have the advice and support during the hearing of an Australian barrister – who was not permitted to practice at the English bar. This request was refused by the judge and Mr McKenzie appeared on his own without assistance. Perhaps unsurprisingly, he lost the case, but then took the matter to the Court of Appeal. Their Lordships were obviously unimpressed by the original trial judge’s ruling and granted Mr McKenzie a retrial on the grounds that the interests of justice had not been served.

The appeal judgment, McKenzie v McKenzie [1970] 3 WLR 47 expressly supports the right of a litigant in person to have the support and advice of another individual (professional or lay) to assist them during the case by taking notes, helping with documents and giving advice (although not usually speaking in court). And this is the origin of the ‘McKenzie Friend’, although, of course, it’s not a requirement that the people concerned are actually friends!

In the strange parallel universe that is a prison an inmate can be changed (‘nicked’) by screws for breaches of the prison rules. Sometimes these alleged actions would constitute criminal offences outside the prison (eg assault or possession of illegal drugs), but many nickings are for breaking rules that wouldn’t be criminal outside the prison environment – for example having a mobile phone or alcohol, or unauthorised possession of a wide range of odd contraband items including chewing gum, blu-tack (useful for copying keys), aftershave (may contain alcohol) or even a digital alarm clock.

As you might expect, prison law doesn’t really follow the normal pattern of what passes as justice on the outside. Assuming that the alleged offence isn’t serious enough to merit police charges and a criminal trial, a prison nicking usually leads to an adjudication (internal hearing) with procedures conducted according to Prison Service Instruction (PSI) 47/2011. A prison officer lays the charge and is essentially the prosecutor, as well as the lead prosecution witness. A governor is the ‘judge’, but also serves as the jury and usually acts as a lead prosecutor. (In the more serious cases an external judge may be brought in to hold a so-called 'independent adjudication').

You might conclude that the accused – the prisoner – doesn’t really stand a chance, and you’d be right. Most adjudications lead to guilty verdicts, pretty much whatever the actual evidence may be. To be fair, some governors do make a stab at getting to the truth, but by and large in most cases the con has been found guilty long before the actual adjudication takes place. Governors – even fair-minded ones - just can’t afford to upset officers by dismissing their nickings.

I’ve been in B-cat prisons where the very fact of getting charged was sufficient to get a con placed straight on Basic level regime (effectively solitary confinement with no rented TV set, dressed in dirty old prison kit and deprived of virtually all personal possessions) before any adjudication had taken place. Although on paper there was a right of prior representation and then a right of appeal against such an administrative penalty, in practice it would have been a very brave prisoner who dared to question the wing manager’s decisions.

Judge Jefferys... no nonsense 'justice'

Although the vast majority of prisoners opt to plead guilty at adjudications (and, to be honest, a good many of them are!) at least part of the reason for this is that the average inmate probably has literacy problems and isn’t articulate or confident enough to speak in his own defence. A fair proportion of cons also have varying types of mental health conditions and this also makes presenting a defence case an uphill struggle. Add to that the fact that it is now almost impossible to get any kind of legal representation for internal adjudications and you have a one-sided ‘justice’ system, to say the least.

That is where the McKenzie Friend comes in. PSI 47/2011 makes specific provision for such support: “a McKenzie friend is a person who attends the hearing to advise and support, but may not normally actively ‘represent’ the accused prisoner by addressing the adjudicator or questioning witnesses.” Although a McKenzie Friend can be a social friend, an unpaid solicitor or a member of the public, in practice it is usually another prisoner.

As a prison Insider, I acted as a McKenzie Friend on many occasions and at one B-cat we succeeded in having 11 nickings dismissed in a row. Often, these were on technicalities: wrong charge being laid; papers served out of time; hearings adjourned for longer than six weeks… To be honest, I was amazed at just how sloppy the administration could be. Governor after governor read the statement (or request to dismiss the charges) sighed and agreed with us that the case had to be dismissed, much to the mounting fury of the wing screws.

During these months I spent a hell of a lot of time locked down the Block (segregation unit) myself. The usual practice was to place the accused prisoner in the Block and lock his McKenzie Friend in the cell with him while awaiting the hearing. This sometimes took all morning, occasionally most of the day. If the case was then adjourned, it meant repeating the whole procedure yet again.

I recall getting one fellow prisoner off an assault charge because the works officer who claimed he had actually witnessed the punch was nowhere near the incident. Rather than agree to accept his written statement, we requested an oral examination of the officer’s evidence.

The governor – a pretty fair man – asked if we could do this by telephone conference call to save time, to which we agreed. His face was a picture when the works screw had to admit that he hadn’t seen who threw the punch as he’d been in the office at the time. “But your statement said you saw it…” said the governor, shaking his head. We knew it was over when he clicked the button to end the call. “I dismiss the charge.”

Outside, the Block screws were waiting to take the ‘guilty’ prisoner away to be stripped and searched before locking him down in the segregation unit. It was not to be. 

“So, what did you get laddie?” asked the Block SO (senior officer), “14 days is it?”

“Charge dismissed” replied the con, trying and failing to conceal his broad grin. 

“What! Charges never get dismissed in my Block!” exclaimed the SO in genuine shock.

Needless to say, my rising success rate attracted negative attention from the wing screws, as well as security officers. If there’s one thing screws hate it’s an educated con who helps other prisoners beat the system and in prison small victories are highly significant - and a potential threat to discipline. The staff soon started regretting having approved my appointment as an Insider.

They always found silly little ways to get their own back. On one occasion I was deliberately confused with the accused (we were both in prison uniforms) and it was me who got taken to the Block for a humiliating strip search before they ‘realised’ I was only the McKenzie Friend for the case. Sometimes they’d ‘forget’ to feed us if we were locked down in the Block over lunchtime ahead of the adjudication hearing.

And naturally, when a pair of 12-inch scissors was mislaid in the tailoring workshop (where I didn’t even work) and the whole prison was on lockdown, it was me and my long-suffering pad-mate whose cell was quite literally ripped apart – the only one on the spur treated in that way. Quite how the security screws imagined either of us could conceal a foot long pair of steel cloth shears in our foreskins or rectums was a mystery, but it certainly didn’t stop them searching us there or between our toes for that matter.  These petty harassments and humiliations were all designed to punish me (and my innocent cell-mate) for daring to take on the system down in the adjudications room.

"Does Magna Carta mean nothing to you? Did she die in vain?"

Eventually, I was ‘ghosted’ (prison slang for being transferred without notice) because the security staff at the establishment clearly regarded me as a troublemaker and a danger to ‘good order and discipline’. Since I was careful never to break prison rules myself, that was the only reason they could find to have me shipped out. I ended up at a much better nick, so I had the last laugh. 

Looking back now, I regret nothing about my work in prison as a McKenzie Friend. I enjoyed the intellectual challenge of deconstructing a poorly written charge sheet or demolishing a less than honest witness statement. More than that, it actually gave hope to prisoners, some illiterate, others with mental health conditions, who had sometimes spent years being bullied and victimised that small victories could be won, even when the odds were completely skewed in favour of the system.