Report of the Interception of Communications Commissioner - July 2016
includes the exercise of functions by virtue of section 80 of the Serious Crime Act 2015
(prevention or restriction of use of communication devices by prisoners etc.) and the
exercise of functions by virtue of sections 1 to 4 of the Prisons (Interference with Wireless
Telegraphy) Act 2012. Both of these are new areas of oversight which we have not yet
started to undertake as we have only so far been informally asked by the Home Office
and the Ministry of Justice to oversee their use. We have agreed to, subject to receiving
a formal direction from the Prime Minister and some additional resource. It seems odd
that these new areas of oversight are provided for in the IP Bill, but that there appears
to be no oversight provisions covering our current oversight regime of the interception
of prisoners’ communications (conduct which will take place under Chapter 2 of Part 2
of the IP Bill). We recommend that this is remedied by an amendment to clause 205 of
the IP Bill.
Authorisations to Intercept Prisoners’ Communications
10.6 Necessity. A Governor may make arrangements to intercept a prisoner’s (or class
of prisoners) communications if he believes that it is necessary for one of the purposes
set out in Prison Rule 35A(4) (or Northern Ireland Prison Service Prison Rule 68A(4)).
These are:
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the interests of national security;
the prevention, detection, investigation or prosecution of crime;
the interests of public safety;
securing or maintaining prison security or good order and discipline in prison;
the protection of health or morals; or
the protection of the rights and freedoms of any person.
10.7 Proportionality. A Governor may only give authority to intercept a prisoner’s (or
class of prisoners) communications if he believes the conduct authorised is proportionate
to what is sought to be achieved by that conduct.
10.8 Types of monitoring. Interception is mandatory in some cases, for example, in
the case of high risk or exceptionally high risk Category A prisoners and prisoners on
the Escape list. All other prisoners may be subject to monitoring where the Governor
believes that it is necessary and proportionate for one of the purposes set out in Prison
Rules. Monitoring is conducted on the basis of an interception risk assessment and
an authorisation signed by a Governor. For example, it is often necessary to monitor
prisoners for offence related purposes, for example, those who have been convicted of
sexual or harassment offences or who pose a significant risk to children.
10.9 Communications which are subject to legal privilege are protected and there are
also special arrangements in place for dealing with confidential matters, such as contact
with the Samaritans or a prisoner’s constituency MP.
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