Report of the Interception of Communications Commissioner - July 2016
Section 10
Prisons
10.1 This section provides an outline of the legislation governing the interception of
prisoners’ communications, gives details of our prison inspection regime and summarises
the key findings from our inspections.
10.2 Our non-statutory oversight of the interception of communications in prisons
in England and Wales commenced in 2002 at the request of the then Home Secretary.
In 2008 IOCCO was invited by the then Director General of Northern Ireland prisons to
undertake inspections of the Northern Ireland prisons. IOCCO does not currently provide
any oversight in respect of Scottish prisons.
Prison Legislation
10.3 In England and Wales Function 4 of the National Security Framework (NSF)
governs the procedures for the interception of prisoners’ communications (telephone
calls and mail). There are also various Prison Service Instructions (PSIs) (such as 49/2011,
43/2014, 10/2015) that impact on this area. In recent years we have pointed out that the
numerous policy documents are fragmented, overlapping and contradictory in places and
this makes it difficult for the prisons themselves to understand the requirements fully and
for our inspectors to conduct the oversight. After many years in development we were
pleased that in July 2016 the National Offender Management Service (NOMS) issued an
interception PSI (04/2016). Regrettably it does not consolidate all other PSIs that relate
(in part) to the interception of prisoners’ communications. In our view this is a missed
opportunity to streamline and provide much needed clarity to the prisons operating the
interception policies. It does however represent a welcome step forward in a number of
areas, for example, the PSI provides a standardised interception risk assessment template
for prisons to use to authorise and review the interception of prisoners’ communications.
It also requires prisons to maintain electronic logs of any monitoring that is undertaken.
10.4 With regard to the Northern Ireland prisons it has been accepted practice that where
Instructions to Governors are absent or deemed to be out of date the Northern Ireland
Prison Service will accept our recommendations based on PSIs issued to establishments
in England and Wales. For a number of years we have reported that this arrangement is
far from ideal and we again recommend that the Northern Ireland Prison Service should
issue a comprehensive Instruction to Governors to supplement the Northern Ireland
Prison Rules in relation to the interception of prisoners’ communications.
10.5 In our 2015 report the former Commissioner made it clear that it would be preferable
if our prison oversight was formalised as a statutory function. Our understanding is that
the Government intended to do this under the IP Bill.65 However, although clause 47 of
the IP Bill provides that the interception of communications in a prison is authorised if
it is conduct in exercise of any power conferred by or under Prison Rules, there appears
to be no provision for this type of interception to be overseen. The IP Bill (clause 205)
sets out the main oversight functions of the Investigatory Powers Commissioner and this
65 See version of IP Bill introduced in the House of Lords on 8 June 2016 -http://www.publications.
parliament.uk/pa/bills/lbill/2016-2017/0040/17040.pdf
www.iocco-uk.info
75