UK: Prison Rules: Unwarranted And Self-authorised Surveillance Of Prisoners' Legal Consultations

Last Updated: 19 February 2016
Article by Lloyd Firth

In a written answer provided to the House of Commons on 11 January 2016, Andrew Selous MP1 made plain the power of the National Offender Management Service ("NOMS"—an executive agency) to intercept prisoners' purportedly confidential communications with their legal advisers without the need to first seek a warrant.2

Set against the backdrop of the continuing controversy regarding the draft Investigatory Powers Bill (the "Bill") published by the Government on 4 November 2015, the legal framework governing the interception of prisoners' communications benefitting from legal professional privilege ("LPP") has drawn relatively little comment.

This post examines the worrying absence of robust and independent authorisation and oversight safeguards in NOMS' exercise of intrusive surveillance powers and considers the reforms that could go some way to ensure that prisoners' fair trial rights are not fatally undermined.

Current framework: no checks, no balances

The current legal framework governing the interception of a prisoner's communications with his or her lawyer is a hotchpotch of statutes (the Prison Act 1952, "Prison Act" and the Regulation of Investigatory Powers Act 2000, "RIPA"), rules (the Prison Rules 1999, "Prison Rules") and instructions (Prison Service Instruction 49-2011, "PSI").

Section 4(4) of RIPA makes lawful the interception of communications in prisons conducted in accordance with the Prison Rules. Taken together, the Prison Rules and PSI provide that legally privileged communications between a prisoner and his or her lawyer may not be recorded, listened to or read unless the prison governor considers that the arrangements (for the planned interception of the communication) are:

  • necessary based on one of six specified and incredibly broad grounds (including for example, "the protection of health or morals" and, "the protection of the rights and freedoms of any person"); and
  • Proportionate to what is sought to be achieved.3

Where such planned interception is thought necessary, it must be authorised by one of:

  • The Chief Executive Officer of NOMS;
  • The director responsible for the National Operations Services of NOMS; or
  • The duty director of NOMS.

The only grounds for authorising ongoing interception would be a, "reasonable belief that that the communication was being made with the intention of furthering a criminal purpose."4

This framework raises serious constitutional concerns as to a lack of independence, expertise and due process.

Remarkably, the authorisation process offers no place for a detailed warrant application to be rigorously scrutinised by an independent judge. Not only does this subvert the fundamental democratic function of an independent judiciary (to act as a brake on the unfettered use of intrusive powers by state bodies) but it also ignores the fact that judges are best placed both to apply the legal tests of necessity and proportionality to ensure that any surveillance is conducted lawfully, and also to make judgements on a difficult and uncertain area of law (LPP).

That the power to grant such intrusive (and ultimately subjective) authorisations vests in the senior civil servant of an executive agency of the Ministry of Justice appears to be at best a democratic oddity and at worst a concentration of power in a role which is neither democratically elected nor judicially qualified.

The legal status of the Prison Rules also offers little comfort to prisoners and their legal advisers. They were not designed to be legally enforceable and the courts have not allowed prisoners to sue for breach of a statutory duty. As Lord Denning M.R. put it in Becker v Home Office:

"The Prison Rules are regulatory directions only. Even if they are not observed, they do not give rise to a cause of action."5

Nor can any protection be sought from the Parliamentary process. Prison Service Instructions (the supplemental administrative guidance from which the bulk of the detail in respect of the interception of prisoners' legally privileged communications is derived) do not enjoy any legal status and are never debated in Parliament.6

A clear and present danger

The danger with regard to the lack of procedural safeguards for prisoners' privileged communications is that it leads to what Lord Phillips, in his dissenting judgment in re McE, described as the, "chilling factor that LPP is intended to prevent." That is, when the law allows the state to listen in on privileged communications, clients feel unable to speak openly with their lawyers. The consequences of this are potentially devastating. Without the full facts, counsel may not be aware of all potential avenues of legal redress available to the prisoner in respect of, amongst other matters, appeals, probationary hearings and complaints as to his or her mistreatment whilst in prison.

This goes to the heart of the criminal justice system and is a very real concern. On 11 November 2014, the then Lord Chancellor and Secretary of State for Justice was forced to announce to the House of Commons that, between 2006 and 2012, there had been a number of instances where telephone calls between a prisoner and his or her lawyer (and, separately, telephone calls between a prisoner and his or her constituent MP) had been wrongly recorded and in some cases listened to by prison staff.8

The HM Inspectorate of Prisons inquiry (which was commissioned following the Parliamentary announcement) reported that whilst there was no, "evidence of a widespread, deliberate attempt to monitor communications", there was, "widespread ignorance about how the system was supposed to operate among both prisoners and staff."9

Such conclusions will do little to allay prisoners' fears that everything they say to their lawyers goes straight to the people responsible for their everyday well-being whilst in prison.

A new, old Bill?

The question then is what measures of increased protection for prisoners' privileged communications does the current version of the Bill provide for? The mandating of a pre-requisite requirement for a judicially approved intercept warrant perhaps? Or the making explicit of LPP protection in primary legislation, as opposed to legally unenforceable instructions which neatly bypass Parliamentary scrutiny?

The answer, sadly, is that the Bill affords no increased protection to a prisoner's legally privileged communications. Section 4(4) of RIPA is merely replicated, in full, at clause 37 of the Bill: doing no more than re-affirm the unsatisfactory status quo. Indeed, LPP is mentioned only once by name in the entire Bill – all the way down at Schedule 6, which provides that a separate code of practice is to be issued which will set out the procedural safeguards for legally privileged communications. This code will have no bearing on prisoners' privileged communications.


That these are testing times for the continued existence of LPP in its current form is beyond doubt. As has been discussed at length in previous blog posts ( here and here), the ability of a client to consult, in confidence, with his lawyer, faced a substantive recent restriction in the Court of Appeal and the legislative framework provided for by RIPA is in urgent need of wholesale reform.

The Government should be applauded for deciding to reform this area of law. The need for a legal framework that provides for a lawful and proportionate use of intrusive powers by the state to detect and prevent serious crime is accepted by all but a militant minority. The easiest way for the Government to ensure that the Bill is both lawful and proportionate, however, would be to make explicit, on the face of the legislation10 (rather than being squirreled away in a supplementary code) the protections that will be afforded to legally privileged communications. There is no principled reason why the legally privileged communications of prisoners should not also be included in these explicit safeguards.


1 Parliamentary Under Secretary of State for Prisons, Probation, Rehabilitation and Sentencing.


3 Prison Rules (rules 34 – 39 and 35A (2) (a) and (b)) and PSI (Outcome 14.2 (f)).

4 PSI (Outcome 14.2 (f)).

5 [1972] 2 WLR 1193.

6 Livingstone and Macdonald on Prison Law, 5thEdition, 2015, paragraph 1.49.

7 [2009] UKHL 15, paragraph 51.



10 Indeed it seems strange that this has not been done already, given the number of other statutes that provide explicit protection for LPP—including, amongst others, the Police and Criminal Evidence Act 1984, the Criminal Justice and Police Act 2001 and the Proceeds of Crime Act 2002.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions