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.

Conclusion

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.

Footnotes

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

2 http://www.parliament.uk/business/publications/written-questions-answers-statements/written-question/Commons/2016-01-05/20942/.

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.

8 http://www.publications.parliament.uk/pa/cm201415/cmhansrd/cm141111/debtext/141111-0001.htm#14111148000001.

9 https://www.justiceinspectorates.gov.uk/hmiprisons/wp-content/uploads/sites/4/2015/07/prison-communications-report-web-2015.pdf.

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 Mondaq.com.

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

Authors
 
In association with
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
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
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). 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 & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd 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 or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.