98
IPCO Annual Report 2018
14.16
The decision to authorise the interception of a prisoner’s communications is made by a
Governor. The authorisation and its associated documents are stored in the establishment
and any intelligence is recorded in the prisoner’s file. We request the number of live
authorisations at each prison on the day of inspection and do not collect statistics for
interception of prisoners’ communications. These figures are not centrally collected and we
do not anticipate that this will change in the near future.
14.17
Under Prison Rules the raw intelligence cannot be stored for more than three months
without an exceptional case for retention. The Governor may authorise prolonged retention
of raw interception material for as long as is judged to be necessary, but this provision
is rarely used in reality. We have inspected the necessity and proportionality records in
relation to any prolonged retention and were satisfied that the cases were appropriate and
the records adequate. Relevant circumstances might include material relating to a specific
dispute or criminal act conducted within the prison, or where an individual within the
prison has come to harm.
14.18
In England and Wales, Prison Rule 35A gives a prison Governor the authority to intercept
any communications by a prisoner or a class of prisoners, if this step is necessary and
proportionate. Prison Rule 81 allows Governors to delegate their powers to other officers.
In practice, the responsibility to consider and authorise requests to intercept prisoners’
communications is delegated to the Head of Offender Management or the Head of Prison
Security. We were satisfied that these methodologies were being used appropriately.
14.19
An Interception Risk Assessment needs to be completed whenever there is a request to
intercept a prisoner’s communications. This document should explain the threat, the
proposed course of action, the assessment of necessity and proportionality, the duration
of the proposed monitoring and any other matters taken into consideration by the AO. The
majority of our recommendations relating to interception focused on a failure sufficiently
to set out in an application the necessity and proportionality considerations to a standard
that would enable the Governor to make a lawful decision as to whether to authorise
interception. We made this observation frequently, particularly with regard to prisoners
who pose a risk to the public, such as those convicted of violent assaults, harassment or
sexual offences. We have continued to see deficient paperwork, a general failure to include
sufficient detail of the factors relevant to the particular case, an apparent disregard of any
Human Rights issues that were engaged and an insufficient record of the matters the AO
had taken into consideration.
14.20
We also noted that there was commonly a failure to carry out suitable reviews of the
authorisations. We noted that this was particularly the case when staffing levels were low
or those monitoring lacked appropriate supervision.
14.21
The increase in drug use within prisons is well documented; the posting of correspondence
soaked in illegal psychoactive substances into establishments has risen sharply. In the
disguise of a personal letter or legal correspondence, prisons receive drug impregnated
paper that is subsequently consumed. We have highlighted the powers available to
Governors to intercept suspicious correspondence in a proportionate and intelligence-led
manner and welcome the use of testing equipment that reduces the level of intrusion into
a prisoner’s correspondence. Our inspections have focused on the testing and opening of
mail suspected of containing drugs and overall the processes and procedures in place have
been compliant with Prison Rules and are proportionate.