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

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...