mobile phones in prisons

As criminal defence solicitors we always want to be readily accessible to our clients.

Many of our clients are in custody on remand awaiting trial or sentence, some are serving sentences and are receiving advice in relation to an appeal of conviction or sentence, and others are receiving advice from our dedicated Prison Law Department on issues such as adjudications, recall, parole board hearings or release on home detention curfew.

We want and need to be in regular contacts in order to update, advise and receive information from them. We understand that restrictions under the prison regime in terms of lockdown, legal visiting times and slots, access to a prison phone or funds and credit to use such devices often frustrate that process.

As we have seen recently, mobile phones inside prisons are becoming more prevalent and for some the preferred communication medium. As well as contacting friends, family and lawyers, it has recently been reported that prisoners are also commenting and discussing prison life on social media sites such as face book.

Shadow prisons minister Jo Stevens said recently: “Illicit phone usage in prisons is something to which successive Tory justice secretaries have turned a blind eye, making a mockery of the penal system and victims of crime” and Prison Officers Association General Secretary said: “Prison officers are extremely stretched. We don’t have the resources to continue to keep searching and finding these mobile phones because of the cuts by this Government, there just aren’t enough prison officers.” (reported here)

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What happens if a client contacts us using a mobile telephone from prison?

Well bluntly a criminal offence is being committed, which as solicitors we cannot be a part of.

The law is unnecessarily complicated and fully detailed below, but put simply it is an offence for a prisoner to communicate with a person outside a prison, punishable by up to two years in prison, but it is also an offence for the other person if they engage in the communication (which could be by voice, email or text message), if they know or believe that they are communicating with the prisoner who has an illicit mobile phone.

In 2013, Claire McCabe an employee of a law firm in Greater Manchester was sentenced to 6 months imprisonment (reported here) for communicating with a client using a prohibited mobile phone in custody.

If a client does communicate with Burton Copeland using a mobile phone from prison and we know or believe that to be the case, will not inform the police or prison authorities, but we will advise the client (as we are duty bound) that they are committing an offence punishable with up to two years imprisonment. that we will not accept further calls in same circumstances; terminate the call and advise other staff accordingly. Continued calls from a mobile might lead to us being unable to act for that client in the future as they are potentially putting the solicitor into a position where they may be complicit in the commission of a criminal offence.

Should you have any issue with mobile devices in prison, prison or criminal law and need expert advice please contact us immediately we are available 24/7 365 days a year.

Jonathan Wall

The Law

Section 40D of the Prison Act 1952 (as inserted by section 23 of the Offender Management Act 2007) provides:

(1) A person who, without authorisation

(b) transmits, or causes to be transmitted, any image or any sound from inside a prison by electronic communications for simultaneous reception outside the prison, is guilty of an offence.

An amendment in the Crime and Security Act 2010, in force since 26 March 2012, extends this to include 'any image, sound or information'. Section 40D expressly applies to the transmission of a text message, although such a message is arguably included in the concept of 'image'.

For the purpose of section 40D 'electronic communication' has the same meaning as in section15 of the Electronic Communications Act 2000, which defines 'electronic communication' as:

a communication transmitted (whether from one person to another, from one device or another or from a person to a device or visa versa) -

(a) by means of an electronic communications network; or

(b) by another means but while in an electronic form.

Section 40D(3A) of the Prison Act 1952 makes possession, without authorisation, of a device capable of transmitting or receiving images, sounds or information by electronic communications (including a mobile telephone) inside a prison an offence.

These offences are either way offences (triable in either the Magistrates or Crown Court – dependent upon seriousness) and the maximum penalty on indictment (in the Crown Court) is two years imprisonment, and/or a fine.

The section 40D offence can be committed by a person in prison who uses an unlawfully possessed mobile telephone to make an unauthorised call.

But it is also an offence for a person outside a prison to make a call to a prisoner on a mobile telephone, if the call is answered by the prisoner and the prisoner speaks to the person who has made the call.

Section 40D could be interpreted to include a person outside the prison intentionally calling a mobile telephone in the possession of a person in prison, because he or she has intentionally caused the prisoner's voice, inside the prison, to be transmitted over the relevant telecommunications network for simultaneous reception by the person outside the prison.

It is also possible that criminal liability as an accessory could apply to persons outside a prison making a call to a prisoner's unlawfully possessed mobile telephone.

Section 8 of the Accessories and Abettors Act 1861 could be construed so that the outside person would procure the section 40D offence, in that the act of dialing a number to create a connection with the unlawfully possessed mobile telephone would be 'the endeavour', which, combined with an intention that the prisoner will answer the call, could create accessory liability to a section 40D offence.