In R v Knaggs [2015] EWCA Crim 1007, a recent interim judgment, giving directions, the Court of Appeal identified the issues that arise out of the use by police and prosecuting authorities of prison intercept.

The interception of prison communications may be lawful under s 4(4) of the Regulation of Investigatory Powers Act 2000, if it is conduct in the exercise of any power under s 47 Prison Act 1952 (s 39 Prisons (Scotland) Act 1989 or s 13 Prison Act (Northern Ireland) 1953). The Investigatory Powers Bill mirrors the provision in clause 37. There are rules issued under the 1952 Act, the Prison Rules 1999 as amended by the Prison (Amendment) Rules 2000, the Prison (Amendment) (No 2) Rules 2000 and the Prison (Amendment) Rules 2002.

The Crown Prosecution Service has issued Guidance in relation to the interception of inmates’ letters and calls. It must only be done with the Prison Service’s consent, any letters or recordings should be handled in a proper evidential manner, compliant with section 27 Criminal Justice Act 1988 and produce a statement from the relevant prison officers. In any case where an interception has taken place, the Chief Crown Prosecutor should be notified and a decision taken by him or her as to whether there is a need for it to be used as evidence.

If the interception is not properly authorised, then the product will be unlawful and inadmissible.

The provisions were considered in R v Abiodun [2005] EWCA Crim 09, an appeal against convictions for conspiracy to commit false imprisonment and blackmail. The Court of Appeal examined exhaustively the provisions both under RIPA, the Prison Act 1952 and the relevant Rules and was satisfied that the interception of prisoners’ communications was in accordance with law, necessary and proportionate. In Mahmood and Khan v R [2013] EWCA Crim 2356 the appellants argued that a general or blanket policy of interception within the prison system was outside the scope of section 4(4) since rule 35A of the Prison (Amendment) (No 2) Rules 2000 required the issue of interception of prisoners’ communications to be considered, not against the prison population at large, but on the basis of the individual prisoner’s classification. The Court of Appeal dismissed the appeal holding that the ‘class’ of a prisoner could be inferred from the type of prison they were held in and rejected the restricted interpretation advanced by the appellant’s as unpersuasive.

The Interception of Communications Commissioner provides non-statutory oversight of the interception of communications in prisons. His 2013 Annual Report expressed concern about the number of Prison Service Instructions on the subject, which he considered ‘fragmented and contradictory in places’. The Commissioner made a significant number of recommendations and noted that ‘[overall] the proportion of prisons achieving a good level of compliance has steadily risen’. He also opined that it would be preferable for oversight of prisons by his office to be formalized as a statutory function, although it appears that this is not proposed in the Investigatory Powers Bill.

The Court in Knaggs referred to Abiodun and Mahmood and Khan, although the issues in the case are quite different.

The issues that will be explored in due course are likely to include whether there has been compliance with the Prison Rules 1999 as amended and if not, what the implications of this are for the product generated. This distinction appears to have been lost on Crown’s witness at least at the date of the hearing. The extracts from the witness statement referred to in the judgment appears to look at the issue from a Mahmood standpoint: i.e. there is a policy, it has held to be lawful and it has been applied. The Court will assess in due course whether there has been compliance with the requirements the Rules impose on the governor. There are at least two requirements of significance.

The first is that, notwithstanding the overall lawfulness of the policy, there is still a requirement on the part of the governor to be satisfied whether in the case of an individual or class of prisoners that the interception is necessary (by reference to the grounds upon which an interception can be authorised) and proportionate. The wording of the Rules implies that this involves a reasoned decision at the time consideration is given to whether to intercept or not but the Commissioner’s reports makes it clear that such a decision is required (see the relevant extracts from the 2013 Report, in particular, paragraph 7.23). A risk assessment should exist in respect of the decision to intercept. This would be a key document in determining the lawfulness of the governor’s conduct and disclosure of it should be axiomatic.

The second is the requirement on the part of the governor to “arrange” for a permanent log to be kept of the prisoner’s communications under rule 35B(1). This does not include the content of the communications. If so, then the governor must direct his mind specifically to the requirements of rule 35C before disclosure can be made of the material.

There appears to be three bases upon which disclosure can then take place. First, where the governor determines it is necessary (by reference to the grounds upon which interception can be authorised) and proportionate. This requires a reasoned decision to be made at the point in time when disclosure is being contemplated. The Crown ought to produce this rationale. The other two bases, requires the consent of the persons affected. In relation to the log, if the decision to disclose was not necessary and proportionate, it could only lawfully be disclosed if the prison consented.

Where there is retained intercept material, there needs to be a reasoned decision at the three months point to continue to retain it and thereafter, at three monthly intervals.

The Court of Appeal in Knaggs is likely to derive some assistance from Her Majesty’s Inspectorate of Prison’s report into prison communications. This was prompted by concerns over the interception of communications between prisoners and their MPs. It identified serious and significant shortcomings and failings.

There are a number of practical points that can be identified even at this interim stage:

  1. It is essential there is compliance with the obligations under the 1952 Act and Rules otherwise the interception will be unlawful and inadmissible.
  2. Demonstrating compliance may be important: see Knaggs at paragraph 15, the difference between the duty to disclose material that might assist demonstrating a lack of lawful authority on the one hand, and on the other hand proving a positive case of lawful authority in respect of which the court had no power to direct the evidential content of.
  3. The prosecution ought to aspire to deal comprehensively with requirements of the rules and disclose evidence of non-compliance.
  4. The evidence should deal with the following: any relevant extracts from the Prison Manual; deal with the decision to intercept (a) prisoner; or (b) class of prisoner; the risk assessment; the log; the decision to disclose; the question of consent if appropriate; the decision to retain the material; details of the three monthly reviews thereafter; and any adverse findings from previous inspections

© Simon McKay (2016). Please ask for my permission before using or copying the material contained on this blog. If you do attribute it to me with a link to the original content. This is opinion, not legal advice.