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Investigatory Powers Commissioner’s Annual Report 2019
15.5
The ability for prisoners to communicate is undergoing transformation through the
introduction of in cell telephones. This poses new challenges for prisons to ensure this does
not pose a security risk and ensuring that the use of these telephones can be monitored in
accordance with the Prisons Rules and the IPA. We found that HMPPS’s management of this
transition gave clear consideration to compliance and that overall the monitoring regimes
within individual prisons are adequate.
15.6
Following our inspections of the Scottish prisons we made some recommendations and
observations to tighten levels of compliance and improve practices and procedures
for authorisation to monitor telephone calls and the retention of lists of telephone
numbers. SPS informed us that all prisoners are given the opportunity to provide a list of
telephone numbers for friends and family. Any calls to these numbers are preceded by
an announcement that the call emanates from the Scottish Prison Service and alerts both
the prisoner and person being called that the call will be logged, recorded and may be
monitored. Prisoners are also asked to notify the prison of any phone number associated
with legal representatives. This means that any calls to solicitors will be preceded by an
announcement that the call will be logged but not recorded, allowing the prisons to be
confident that they are not inadvertently monitoring and recording calls which should be
subject to legal professional privilege (LPP) safeguards. This is good practice and alerts the
prisoner and persons being called of the restrictions placed on the call, which safeguards
their privacy.
15.7
In Northern Ireland, we found that Hydebank Wood College and Women’s Prison and
Her Majesty’s Prison (HMP) Maghaberry and HMP Magilligan operate to a consistent
standard and made a small number of recommendations and observations. At each, we
recommended that they should adopt a consistent approach in using authorisations to
monitor communications. This is not to suggest that the current approach is substandard;
we found that all prisoners are fully informed about the arrangements for recording and
monitoring their communications and how they can communicate confidentially with legal
advisors and other bodies. We were pleased to note, additionally, that Hydebank Wood
College has adapted this process to meet the needs of both the young offenders and
female prisoners. Like in Scotland, the NIPS uses a recorded announcement to alert both
the prisoner and the person called of the monitoring regime and we believe that this is
good practice.
Covert human intelligence sources (CHIS) and surveillance
15.8
Running CHIS is always challenging and requires careful planning and monitoring to ensure
that appropriate and reliable reporting is obtained while safeguarding CHIS welfare.
Prisons present a uniquely challenging environment for such activity and we have raised
concerns in recent years that considerations of necessity, proportionality and collateral
intrusion in terms of CHIS management have been inadequately documented. In general,
CHIS casework in prisons is not of the same standard as that kept by other authorities
using powers of the Regulation of Investigatory Powers Act 2000 (RIPA) and this is an
issue which we continue to discuss both centrally and with individual prisons. In 2019,
we noted a general reduction in the number of active CHIS authorisations and a marginal
improvement in the quality of the records we examined. We believe that focusing on fewer,
but better run, CHIS will lead to an improvement in compliance which will likely also lead
to operational benefits. We intend to monitor this trend during our 2020 inspections and
will focus on the articulation of proportionality as well as the adequacy of handling and
contact notes.