Prison-related Offences

Updated August 2019: Section on 'The 'potting' of prison officers' amended|Legal Guidance, Violent crime

Revised: 8 May 2019

Introduction

An offence committed in prison by a prisoner may be dealt with:

  • by the prison governor, using the prison's internal disciplinary procedure; or
  • by a police investigation, which may lead to a prosecution.

The decision whether to call the police to investigate is made by the prison governor using guidelines provided by Her Majesty’s Prison and Probation Service (HMPPS) and depends on the nature and seriousness of the alleged offence. A Prison Service Instruction (PSI) provides ‘the test for seriousness is whether the offence poses a very serious risk to order and control of the establishment, or the safety of those within it'. (see PSI 47 /2011 Prisoner Discipline Procedures). Seriousness means "very serious risk to order and control of the establishment or the safety of those within it".

Where a governor / adjudicator decides to ask the police to investigate, he should still lay a disciplinary charge within 48 hours of discovery of the alleged offence, and the hearing should then be adjourned pending the police enquiry and CPS decision.

If the victim requires that the matter be referred to the police, the governor / adjudicator must accede to that request.

Clear evidence of racial motivation will strengthen the case for referral to the police.

PSI 47 / 2011 provides: "All serious assaults on staff or prisoners must be referred to the police for investigation in accordance with the NOMS [HMPPS] policy of zero tolerance to violence".

Guidance to prison officers on offences to be referred to the police

Prison governors have been informed that the following offences should be referred to the police:

  • murder and attempted murder;
  • manslaughter;
  • rape and attempted rape;
  • threats to kill where there appears a genuine intent;
  • where there is the use of a weapon causing or likely to cause serious injury;
  • the occasioning of serious injury by any means;
  • the use of serious violence against any person (providing that more than minor injury was the intended or likely outcome of such an assault, the actual extent of the injuries received may not be significant);
  • personal sexual violation other than rape but where the victim is especially vulnerable or there has been violence or a threat of violence;
  • unlawful imprisonment (hostage taking);
  • escape from a closed establishment or secure escort;
  • attempted escape from a closed establishment or secure escort provided that the attempt amounts to more than an intention to escape and the act done can be regarded as more than mere preparation for the offence;
  • any other serious case where the means of escape have been found and where referral is needed to discover how they were obtained and to prosecute those responsible;
  • possession of unauthorised weapons (firearms, imitation firearms or explosives) and other offensive weapons (knives, home-made weapons, workshop instruments if there is evidence to suggest that the weapon was intended for use in the commission of a further serious criminal offence);
  • supply and possession of Class A drugs with or without intent to supply;
  • supply and possession of Class B drugs with intent to supply unless there is only small scale supply for no payment: possession alone should be referred only when the quantity is substantial;
  • criminal damage to prison or prisoners' property (normally to a value in excess of £2000). (Evidence of concerted action by a group of prisoners will strengthen the case for referral);
  • arson, unless there was little risk of the fire taking hold (a cell fire may be an attempt to commit self-harm - these cases should not normally be referred);
  • robbery, especially where serious violence is used or threatened;
  • major disturbances involving a number of prisoners where the Governor has lost or seems likely to lose control of all or part of the establishment.

Prosecutors should refer to PSI 47/2011 Prisoner Disciplinary Procedures for a full list of offences and referral criteria.

In July 2002, the European Court of Human Rights held that Article 6 was applicable to internal disciplinary hearings conducted by a prison governor. ((1) Okechukwiw Ezeh (2) Lawrence Connors v United Kingdom 39665/98; 40086/98 http://www.echr.coe.int). As a result of this judgment, such hearings are now held before District Judges who act as independent adjudicators.

Crime in Prison Referral Agreement

The Crime in Prison Referral Agreement sets out an agreement between HMPPS, the NPCC and the CPS.  The agreement aims to ensure that acts of criminality within prisons are properly addressed. The agreement can be found on the GOV.UK website.

Suspect refuses voluntary interview and to leave their cell

The investigation of an incident committed in a prison establishment may result in the suspect being offered a voluntary interview and being asked to leave their cell, as opposed to being arrested and taken to a police custody unit.

The suspect’s refusal to leave their cell must be documented by the investigator who should record how the suspect has been informed that the police wish to speak to him / her, and that the suspect has been given a full opportunity to obtain legal advice. It is best practice for a statement to be taken from the person who explained to the suspect their rights.

Where the suspect is offered a voluntary interview and refuses, consideration should be given to whether the necessity for arrest provisions are met (PACE Code G 2.9(e)). An unwillingness to attend a police station voluntarily is sufficient to meet the test at PACE Code G 2.9(e).

Where the suspect is arrested, any refusal to leave his / her cell when ordered to do so by an officer is in breach of the Prison Rules. The matter can be dealt with on adjudication by either the prison governor or by an independent adjudicator (visiting District Judge).

A refusal to comply with a voluntary interview or to attend an interview following arrest should not be considered to be a 'no comment' interview and inferences should not be assumed.

A suspect must be cautioned, questioned or charged before inferences are drawn about their non-compliance with an interview, (section 34 Criminal Justice and Public Order Act 1994). In order for an inference to be drawn, the police must be able to show that the prisoner: was at any authorised place of detention, that he had been allowed an opportunity to consult a solicitor prior to being questioned, and that he / she was questioned under caution.

When making a decision about how to proceed, the cost of arresting a suspect and transporting them to a police station (for what may be a no comment interview) will need to be balanced against the value of an inference in any given case.

Code for Crown Prosecutors

Prosecutors should first check that the offence falls within the HMPPS guidelines issued to prison governors. If it does not, the governor should be asked, via the police, to find out the reason for the referral and whether there are any aggravating features.

If a case is referred to the CPS the principles in the Code for Crown Prosecutors must be applied in the normal way. In assessing where the public interest lies, prosecutors should bear in mind the impact of the offence on the proper running of the institution and the potential impact of a decision not to prosecute.

The following factors are likely to be especially relevant in a prison context:

  • the offence was committed against a person susceptible to violent attack in the course of his or her duties, e.g. a prison officer;
  • the victim was vulnerable, or subjected to personal and / or repeated attacks or put in fear of attack;
  • offences which may otherwise be regarded as trivial can assume a greater significance when committed in an institution because of the wider impact on internal discipline;
  • a prosecution is also more likely if the offence has been committed against a victim who was at the time a person serving the public (Code for Crown Prosecutors paragraph 4.12). A prison officer is a person who serves the public. The fact that a prison officer is assaulted whilst performing his / her duty would weigh heavily in the balance towards a prosecution;
  • the offence is part of, or linked to, organised criminal activity on a wider scale than the offence alone;
  • where an offence involves the conveyance of articles on List A or List B, the possession of mobile phones, weapons, drugs, psychoactive substances, or the transmitting or conveying of 'restricted documents', and the evidential test is met, it is more likely than not that a prosecution will be in the public interest;
  • assaults on prison officers undermine the fundamental principle of control and order which is necessary for the running of any prisons and maintaining safety. A prosecution would convey the right message to all prisoners that assaults on a prison officer will be taken seriously.

Public Interest: effect of likely sentence

The Code for Crown Prosecutors states that when deciding if a prosecution is in the public interest prosecutors should consider whether prosecution is proportionate to the likely outcome (paragraph 4.12f).

When reviewing cases involving assault on prison officers and in assessing the public interest stage, prosecutors should bear in mind the impact of the offence in the proper running of the establishment and the potential impact of a decision not to prosecute.

The importance of a criminal record that properly reflects an individual's offending behaviour is also a factor that prosecutors should consider when reviewing a case involving an assault on a prison officer.

The Sentencing Council Definitive Guideline on Offences Taken Into Consideration and Totality clearly states that consecutive sentences will ordinarily be appropriate where any offence is committed within the prison context.

A prison sentence is not a small or nominal sentence even when it is imposed concurrently. The likelihood that a concurrent sentence will be imposed is not in itself sufficient to refrain from prosecuting an offence committed by a prisoner in prison.

If the prisoner is not convicted of a criminal or disciplinary offence, his or her conduct cannot be taken into account by the Parole Board.

Greater weight may be given by the Parole Board to a conviction than a disciplinary finding.

On the other hand, if a custodial sentence is unlikely to be imposed, the court must impose an absolute or conditional discharge, or a fine. In such cases a prosecution may not be the best way to deal with the case. The governor's powers may be a more effective way of enforcing the law. In such cases, prosecutors should consult the police and, through them, the prison governor before discontinuing, to enable either to make representations. If the governor indicates that disciplinary proceedings will ensue if the criminal case is discontinued, this may point against prosecution where a small or nominal penalty is likely.

Violence in prisons and assaults on prison officers

The Prison Service and the Prison Officers Association have adopted a zero tolerance approach to violence in prisons, and in particular, to assaults on prison officers.

Prosecutors are asked to note that prison officers, while acting as such, have all the powers, authority, protection and privileges of a constable by virtue of Section 8 of the Prison Act 1952. Prison officers have the powers of a constable to arrest, grant street bail and seize property for the purposes of criminal investigations under PACE. The powers of a constable apply to Prison Officers only and not to prison custody officers (employed by private prisons).

The Code for Crown Prosecutors makes clear that prosecutors must select charges which reflect the seriousness and extent of offending. All things being equal, where the available evidence affords the prosecutor a choice between section 39 of the Criminal Justice Act 1988 (common assault) and section 89 of the Police Act 1996, the latter will normally be the more appropriate charge. Where there is evidence of racial or religious aggravation, offences contrary to the provisions of the Crime and Disorder Act 1998 may be appropriate.

Guidance about specific offences

Prison Mutiny

The offence of prison mutiny, contrary section 1 Prison Security Act 1992 is committed when two or more prisoners, on the premises of any prison, engage in conduct which is intended to further a common purpose of overthrowing lawful authority in that prison. The offence is aimed at behaviour intended to make a prison, or part of prison, ungovernable.

Offences under section 1 require the consent of the DPP: refer to Consents to Prosecute elsewhere in the Legal Guidance.
Guidance has been provided to prison governors concerning the type of conduct that should be referred to the police for investigation as a possible prison mutiny. The guidance provides information about types of behaviour in response to which internal measures are generally appropriate and those that may justify prosecution.

A charge of prison mutiny will be appropriate only when the disturbance is serious. It will be particularly appropriate where the evidence fails to show clearly an identifiable culprit who can be prosecuted for a substantive offence. In many circumstances the charging of public order offences, offences against the person or against property will be preferable, notwithstanding that they took place in prison.

Prosecutors should also consider the provision of section 1(4) of the Act which provides that where a prisoner fails to submit to lawful authority without reasonable excuse, he shall be regarded as taking part in the mutiny. The purpose of this sub section is to catch prisoners who, by their presence and refusal to disperse, make the role of the authorities who are attempting to restore lawful control more difficult. However, the offence is confined to failure to submit etc., in the context of a prison mutiny: it should not be used to cover mere defiance of, or a challenge to, lawful authority in a prison in other contexts.

In R v Aaron Barratt, the appellant had pleaded guilty to an offence of section 1(4) of the Act. The appellant argued that the officer’s order to lock up was before the mutiny started, there had been no direction to submit to lawful authority during the time with which he could have complied. The prosecution should prove that there was such an opportunity at a time after the mutiny had started and there was no such opportunity, the only command was made beforehand. The appeal failed. The Court of Appeal held that the offence of section 1(4) of the Act was not committed by failing to follow an express instruction during a mutiny. ‘The fact that an order has been given and not heeded may well be powerful evidence that the defendant did in fact have a reasonable opportunity to submit to authority and failed to do so, but it is not necessary for an order to be given’. The synchronicity is that the failure to submit to lawful authority must be at a time when the mutiny is in process. In this case he had reasonable opportunity to return to a cell, otherwise disengaging.

Prosecutors should be aware that the prison authorities have disciplinary measures available to them which can result in a prisoner losing up to 28 days remission for lesser offences such as:

  • denying a prison officer access to part of the establishment;
  • disobeying a lawful order;
  • detaining a person against his will.

In many circumstances, confirmation of disciplinary proceedings will make a prosecution for prison mutiny, or other substantive offences, unnecessary.

It may be necessary for counsel to draw the background to the decision to prosecute in these cases to the attention of the trial or sentencing court. The points made are of equal application to agents and CPS advocates in the magistrates' courts.

Psychoactive Substances Act 2016

The Psychoactive Substances Act 2016 (PSA) defines 'psychoactive substance' and makes it an offence to produce, supply, offer to supply, possess with intent to supply, import or export psychoactive substances, and possess a psychoactive substance in a custodial institution.

The maximum sentence, on conviction on indictment, for the offence of possession in a custodial institution is two years' imprisonment.

A custodial institution refers to:

  • a prison;
  • a young offender institution, secure training centre, secure college, young offenders institution, young offenders centre, juvenile justice centre or remand centre;
  • a removal centre, a short-term holding facility or pre-departure accommodation;
  • service custody premises.

Where an offence takes place within a custodial institution, save in exceptional circumstances, the public interest test for prosecution will be met.

Prosecutors are reminded that the circumstances in R v Denslow [1998] Crim LR 566 CA are unlikely to apply to alleged social supply in a custodial institution.

Prosecutors should note that, of the known psychoactive substances, only synthetic cannabis is on List A by virtue of it falling under the definition of "controlled drug". Psychoactive substances as defined by the PSA 2016 are not captured by List A of the Prison Act.

The PSA guidance provides full information about offences arising from the Act, advice on charging practice and factors to consider when reviewing such cases.

Misuse of Drugs Act 1971

Where charges under section 40B Prison Act 1952 are being considered in relation to controlled drugs, prosecutors should also consider whether it would be more appropriate to charge an offence under the Misuse of Drugs Act 1971. Depending on the circumstances of the case, the evidence may, for instance, support a charge of Supplying or Possession with Intent to Supply the drugs in question. These Misuse of Drugs Act offences attract greater maximum sentences than the offence under section 40B: life imprisonment for Class A drugs, and 14 years’ imprisonment for Class B and C drugs; compared with 10 years’ imprisonment for section 40B offences.

The 'potting' of prison officers

'Potting' is the act of prisoners throwing excreta at prison officers.

Careful consideration must be given to the charging of such incidents, due to the fear of health issues associated with body fluids.

In certain circumstances, consideration should be given to charging an offence of section 24 Offences against the Person Act 1861 ('OAPA'). A charge of section 24 OAPA may be appropriate in order to reflect the seriousness and the extent of the offending.

By section 24 OAPA: 'Whosoever shall unlawfully and maliciously administer to or cause to be administered to or taken by any other person or other destructive or noxious thing, with intent to injure, aggrieve or annoy any such person, shall be guilty of [an offence]'.

R v Simon Paul Gillard [1988] 87 Cr App R 189 provides that on the true construction of section 24 OAPA the word ‘administer’ includes conduct which whilst not being the application of direct physical force to the victim nevertheless brings the noxious thing into contact with the body.

The jury has to consider the evidence of what was administered both in quality and quantity and to decide as a question of fact and degree whether the thing was noxious. A substance which may be harmless in small quantities may yet be noxious in the quantity administered: R v Marcus 73 Cr App R 49 CA. The court further held that 'noxious' did not mean harmful in the sense of injury to bodily health. Urine is capable of being a ‘noxious thing’:  R v Veysey and others [2019] EWCA Crim 1332

A two-stage test for determining ‘noxious substance’ is provided by R v Veysey and others [2019] EWCA Crim 1332:

‘… it will be for the judge to rule as a matter of law whether the substance concerned, in the quantity and manner in which it is shown by the evidence to have been administered, could properly be found by the jury to be injurious, hurtful, harmful or unwholesome. If it can be properly so regarded, it will be a matter for the jury whether they are satisfied that it was a noxious thing within that definition.’

The substance does not therefore need in fact to be harmful – in all the circumstances it may be hurtful or unwholesome.

Where the offending involves the throwing of excreta to the prison officer's head or face, consideration should be given to preferring a charge of section 24 OAPA. The prosecutor must consider whether the charge reflects the seriousness and extent of the offending.

Where the offending involves the throwing of excreta to the prison officer's lower body and clothes, it would be appropriate to charge section 39 Common Assault.

In circumstances where a prison officer has been subjected to repeated incidents of 'potting' to their lower body and clothes, consideration should be given to the appropriateness of charging section 24, in order to reflect the extent of the offending.

Guidance as to the appropriate level of sentencing in ‘potting’ cases is provided in R v Veysey and others [2019] EWCA Crim 1332: ‘… offences of this nature will generally attract a starting point after trial in the range of two to three years’ imprisonment, with offences involving urine falling at the lower end of that range and offences involving faeces at the upper end’. ‘… Where a prisoner is serving a sentence at the time conviction, a consecutive sentence will usually be necessary.   Where he has been released by the time of his conviction, a further sentence of imprisonment will usually be necessary’.

Possession of unauthorised weapons and other offensive weapons

Prison governors have been informed that incidents involving the possession of unauthorised weapons and other offensive weapons (knives, home-made weapons, workshop instruments if there is evidence to suggest that the weapon was intended for use in the commission of a further serious criminal offence) should be referred to the police.

Section 78 of the Serious Crime Act 2015 makes it an offence to possess any article which has a blade or is sharply pointed, or other offensive weapon, in prison without authorisation. This includes makeshift weapons manufactured by prisoners from everyday items. The offence applies to all persons in prison including prisoners, staff and visitors.

Section 78 is an either-way offence and on conviction on indictment it carries a four year maximum prison sentence or a fine or both. On summary conviction, it carries a maximum six month prison sentence or a fine or both.

Prosecutors should note that authorisation may be given to individuals in prison to possess offensive weapons provided it is for legitimate use. Authorisation may be given by the Governor or on behalf of the Secretary of State. PSI 21 / 2015: Unauthorised possession within prisons of knives and other offensive weapons introduced the following central authorisations:

  • Knives, tools or other items that may be classed as offensive weapons in the possession of delivery drivers if such items remain in the delivery vehicle
  • Possession of tools / equipment required for prisoners in workshops or kitchens or for activities where permission has been given locally and where the items has not been removed from the area in which it is authorised for use
  • Possession of cutlery issued by the prison for the purposes of preparation or consumption of food and where the cutlery has not been removed from the area in which it was authorised for use
  • A kirpan in the possession of a Sikh Chaplain visiting prisons (although a kirpan is not recognised in law as an offensive weapon)
  • Tasers and items of personal protection equipment held in possession by police when visiting a prison (tasers to be left at reception other than during an operational emergency)
  • Such items already authorised by Prison Service Instructions to be in the possession of staff in the course of their duties such as batons and cut-down knives including specialist equipment and tools carried as part of national response teams whilst operating within prisons
  • Items such as safety razors authorised for shaving.

See also the legal guidance Offensive Weapons, Knives, Bladed and Pointed Articles.

Acid attacks

Acid and other corrosive substances (for example, bleach or ammonia) may be used as weapons to attack victims. Acid and corrosive substance attacks have a devastating effect on victims, and when thrown on to the victim's body - usually their face - cause the skin and flesh to melt, sometimes exposing and dissolving the bones below. The long-term consequences of acid or corrosive substance attacks may include blindness, permanent scarring of the face and body, and social and psychological difficulties.

There is a strong public interest in prosecuting offences of acid or corrosive substance attacks committed in a prison environment.

Deliberate cell fires

Deliberate cell fires have the potential to place prisoners, prison staff and fire crews in significant danger, and cause major disruption to the running of the prison. Prosecutors should note that a cell fire may be an attempt to commit self-harm - these cases should not normally be referred by the prison to the police.

The most appropriate charges in connection with deliberate cell fires are likely to be drawn from the following:

  • Criminal damage, section 1(1) Criminal Damage Act 1971
  • Destroying or damaging property with intent to endanger life, section 1(2) Criminal Damage Act 1971
  • Arson, section 1(3) Criminal Damage Act 1971.

Prosecutors should, in all cases involving a deliberate cell fire, request the offender’s mental health records.

See legal guidance about Criminal Damage.

Conveyance of articles

Section 39 of the Prison Act 1952 provides that:

'intending to facilitate the escape of a prisoner ... (ii) causes another person to bring, throw or otherwise convey anything into prison ... is guilty of an offence'

Section 40 of the Prison Act 1952 concerns the unlawful conveyance of spirits or tobacco into prison etc.

Section 40A of the Prison Act 1952 defines the categories of article referred to in sections 40B and 40C.

Section 40B deals with the conveyance of List A articles in or out of prison.

Section 40C deals with the conveyance of List B or C articles in or out of prison.

Prohibited articles are graded according to their seriousness and perceived threat to security and safety within a prison. Prohibited articles are classified as List A, List B or List C articles:

  • List A articles - drugs, explosives, firearms and ammunition and any other offensive weapon;
  • List B articles - alcohol, mobile telephones, cameras, sound recording devices (or constituent parts of the latter three items);
  • List C articles - any tobacco, money, clothing, food, drink, letters, paper, books, tools, information technology equipment.

List A and B offences and penalties

A person (including prisoners, staff, social and professional visitors) commits an offence if he / she carries out any of the following listed activities without obtaining prior authorisation:

  • brings or throws or otherwise conveys List A or B items in or out of a prison by whatever means;
  • causes another person to do so;
  • leaves a List A or B item in any place (in or out of the prison) intending it to come into the possession of a prisoner;
  • knowing a person to be a prisoner gives a List A or B item to him / her.

Offences in respect of List A items are triable on indictment for which the penalty is imprisonment for a term not exceeding 10 years or to a fine or both.

Offences in respect of List B items may be tried either way. The penalty on indictment is imprisonment for a term not exceeding two years or a fine or both, and on summary conviction to imprisonment not exceeding 12 months or a fine not exceeding the statutory maximum or to both.

Proving the mens rea in connection with List A and B offences

For the purposes of establishing the commission of an offence of conveying 'List A' or 'List B' articles into a prison contrary to section 40B(1)(a) and section 40C(1)(a), the Crown must prove that the offender knew that he was conveying something prohibited into the prison, but does not have to prove that he knew precisely what that item was, (R v Johnson (Wayne) [2017] EWCA Crim 189).

List C offences and penalties

A person (including prisoners, staff, social and professional visitors) commits an offence if he / she carries out any of the following listed activities without obtaining prior authorisation:

  • brings, throws or otherwise conveys a List C article into a prison intending it to come into the possession of a prisoner;
  • causes another person to bring, throw or otherwise convey a List C article into a prison intending it to come into the possession of a prisoner;
  • brings, throws or otherwise conveys a List C article out of a prison on behalf of a prisoner;
  • causes another person to bring, throw or otherwise convey a List C article out of a prison on behalf of a prisoner;
  • leaves a List C article in any place (whether inside or outside a prison) intending it to come into the possession of a prisoner;
  • or while inside a prison, gives a List C article to a prisoner.

Offences relating to List C items are triable summarily only for which the maximum penalty is a fine not exceeding level 3.

Section 40C(4) Prison Act 1952 provides defences (reasonable belief that authorisation had been given or overriding public interest justifying the act) for individuals accused of committing offences connected with List B or List C articles, but not List A.

In R v Boyton [2010] 1 Cr App R (S) 40, the Court of Appeal stated that for an offence of bringing a mobile telephone into prison under section 40C a starting point of 9 months’ imprisonment is not manifestly excessive.

In R v Smak [2013] 1 Cr App R (S) 45, the Court upheld the sentence of 12 months’ imprisonment imposed for smuggling a SIM card intended for a category A prisoner.

Proving the mens rea in connection with List C offences

Offences in relation to List C articles require the mens rea of 'intending' the article to come into the possession of a prisoner. However, the main offences in relation to List A and List B articles (bring, throw or convey the article into prison, or cause another person t do so) do not contain any such express mens rea.

In R v B and M [2010] 2 Cr App R 33 CA the court considered whether the offence under section 40C(1)(a), to bring, throw or convey a List B article into or out of prison, was a strict liability offence, or one that contained a mens rea.

The court made clear that there is a presumption of law that mens rea is required before a person can be found guilty of a criminal offence; and the presumption applies to statutory offences, and can only be displaced where the statute is concerned with an issue of social concern, such as public safety.

Applying this principle, the Court held that section 40C(1)(a), and all the other relevant sub-sections, 'require the same presumptive mens rea element, 'knowingly'. This mens rea is further clarified as the prosecution having to prove 'the absence of a genuine belief on the part of a defendant that the offence was not being committed'.

When considering the evidential stage of the Full Code Test, prosecutors should bear in mind the mens rea to be proved in relation to these offences. This requires a distinction to be made between those persons who make a genuine mistake in bringing a prohibited article into prison and those who deliberately do so.

By way of example, the following may assist when assessing the strength of the evidence regarding the suspect’s knowledge:

  • Do all the facts and circumstances of the case lead to an inference that the suspect knew he was committing the offence?
  • Evidence of the defendant having been made aware by the prison of the items that are prohibited: it is a legal requirement for prisons to display the detail of these offences and their penalties on a fixed sign at or near the entrance; additionally, prisons may, for example, make persons aware by reminding them before a search, by leaflets or by general circulars to professional visitors. Prison staff must be made aware, and reminded on occasions, of items they are not allowed to bring into prison
  • What was the reaction / explanation of the person when the article was found in his possession?
  • What explanation does the suspect give in interview?
  • What is the relationship of the suspect to the prisoner: is he a friend or relative, or is he carrying out professional duties, such as legal advisor?
  • Was this the person's first visit to a prison and were they therefore unfamiliar with the prohibitions?
  • Where was the article found, and did it appear to be concealed?
  • Did the person attempt to hide the item when searched?
  • Where the article is a component part of a mobile phone, camera or sound recording device, is there a good reason for the suspect to be carrying such an article?
  • Where the article is a phone or SIM card, what information is stored on the phone or card, such as contents of texts, and contact details?
  • If two or more persons are in possession of separate component parts and visiting the same prisoner, consider whether they are involved in a joint enterprise.

Throwing articles or substances into prisons

Section 40CB of the Prison Act 1952 provides the offence of throwing any article or substance into a prison without authorisation. The offence does not apply where the article or substance in question is one specified in List A (which covers controlled drugs, explosives, firearms, ammunition or any other offensive weapon), List B (alcohol, mobile phones, cameras and sound recording devices) or List C (tobacco, money, clothing, food, drink, letters, paper, books, tools and information technology equipment) as it is already an offence (pursuant to sections 40A to 40C of the Prison Act 1952) for a person without authorisation to convey List A, B or C articles into a prison (which includes throwing them into prison).

The maximum penalty on summary conviction of the offence is six months’ imprisonment. The maximum penalty on conviction on indictment is two years’ imprisonment.

Transmitting or conveying information into prisons

Section 40D of the Prison Act 1952 creates offences of without authorisation:

  • taking a photograph or making a sound recording within a prison;
  • transmitting any image or sound electronically from within a prison for simultaneous reception outside a prison;
  • conveying or causing to convey a 'restricted document' out of a prison;
  • transmitting or causing to transmit a 'restricted document' or part of it from inside a prison by means of electronic communication.

The offence is triable either way.

The maximum penalty for offences under section 40D relating to photographs, sound recordings and restricted documents, is two years' imprisonment.

Section 40E sets out interpretations in relation to section 40D.

'Restricted documents' are defined for the purpose of section 40D as meaning:

  • a photograph or sound recording taken / made inside the prison;
  • personal records of prisoner (serving or past) or staff personal records;
  • any document containing information relating to an identified or identifiable individual (including families of prisoners or staff) if the disclosure of that information might prejudicially affect the interest of that individual;
  • any other document containing information relating to any matter connected with the prison if the disclosure of that information might prejudicially affect the security of operation of the prison.

Prosecutors should refer to section 40E(4) for further detail.

Section 40D(4) provides defences for individual accused of committing any of the above offences, namely reasonable belief that authorisation had been given or overriding public interest justifying the act.

Possession of mobile phones

Section 40D(3A) Prison Act 1952 provides that it is an offence within a prison for anyone to possess, without authorisation, devices capable of transmitting or receiving images, sounds or information by electronic communications. This includes not only a mobile phone but also any component part or article designed or adapted for use with such a device, such as a SIM card or a charger for a mobile telephone.

The maximum penalty on conviction for possession of a mobile phone is two years' imprisonment or a fine or both.

Possession of a mobile phone in prison is a serious offence. Where there is sufficient evidence to provide a realistic prospect of conviction, the public interest will normally require a prosecution. In assessing the public interest, prosecutors should consider the seriousness and culpability of the offence committed. This could be determined by a number of factors such as the suspect is alleged to have committed the offence on a previous occasion, his explanation, the number of mobile phones found on him and whether analysis of the phone shows a pattern of continuous usage indicating to criminal activities.

Prisoners throwing boiling water over other prisoners or prison staff

Where a prisoner throws boiling water over other prisoners or prison staff, a charge under the Offences Against the Person Act (‘OAPA’) 1861 that reflects the injury sustained by the victim or an attempt to commit such an offence will usually be appropriate. There may, however, be some cases where it is appropriate to authorise a charge of Section 29 OAPA 1861. Such cases require careful consideration.

Section 29 OAPA 1861 provides: “whosoever shall unlawfully and maliciously … cast or throw at … or otherwise apply to any person, any destructive … substance ... with intent … to burn, maim, disfigure, or disable any person, or to do some grievous bodily harm to any person, shall, whether any bodily injury be effected or not, be guilty of [an offence] …”.

In R v Crawford (1845) 2 Car & Kir CCR, it was held that boiling water is ‘destructive’ by nature, under the predecessor legislation OAPA 1837 which refers to ‘destructive matter’. In R v Martin (1877) 62 LT Jo 372, Huddleston B’s directions to the jury indicated that boiling water was not ‘destructive matter’ pursuant to the OAPA 1861 That decision is not binding however and it remains open to prosecutors to argue that boiling water is indeed a destructive substance.

A Section 29 OAPA 1861 charge may be appropriate where the defendant, who claims not to have intended really serious harm, nonetheless cannot deny an intent to burn (or maim, or disfigure, or disable the victim), either because on the prosecution evidence it is appropriate to accept this lesser level of intent or because it will reduce this matter to one to be resolved by a Newton hearing, rather than a trial issue.

Prosecutors should recognise that attempting to commit an offence will not normally attract the same sentence as committing the full offence (R v Johnson [2001] 2 Cr App R (S) 88). Section 29 OAPA 1861 recognises the gravity of those who are armed with substances which burn, maim, disfigure, disable or do really serious harm to others, and who cast them, and this is reflected in the maximum penalty of life imprisonment, whether or not injury is caused.

Authorisations for legitimate conveyance and use

To commit any of the section 40 Prison Act 1952 offences, the activity must be carried out without authorisation.

Prosecutors should note that there will be instances in which there are legitimate reasons why staff or professional visitors may seek to convey List A, B or C items into or out of a prison, take documentation or transmit information out of a prison or use cameras or sound-recording equipment within a prison. In such instances, an authorisation needs to be in place to enable an individual to convey items or conduct activities which are prescribed and restricted by the Act.

There are three main types of authorisation methods available, namely:

  • under Crown Immunity;
  • under an extension of Crown Immunity which is provided for by the Act;
  • as an explicit written authorisation under sections 40B (List A articles) or 40E (for other articles) of the Prison Act.

Authorisations may be given to specific groups or organisations or to specified individuals for a particular purpose, as appropriate. Prisons are responsible for issuing authorisations but, in certain circumstances, individual written authorisations are not needed for all instances in which individuals are required to carry out restricted activities.

Crown Immunity: Crown Servants

Directly employed staff and other public servants (servants or agents of the Crown) are exempt from prosecution for offences under sections 40B, 40C and 40D of the Prison Act 1952 if they contravene the provisions of the Act whilst carrying out their normal, designated work-related duties. This level of authorisation is applicable in circumstances in which it is clear to both management and staff that the act of conveyance or use of the prohibited articles is wholly within the normal duties of the individual concerned.

Crown Immunity: others working in a prison

Prison staff who are not Crown Servants can have Crown Immunity extended to them. Section 40F of the Prison Act allows for the Secretary of State to designate any person who work at a prison, but who are not Crown Servants or Agents, to be treated as if they were Crown Servants. Once designated, they assume Crown Immunity but only for the purpose of the offences specified in sections 40 - 40D of the Prison Act. This includes all staff working at contracted prisons and all voluntary and contract staff working regularly in public sector prisons.

Authorisations under section 40B and 40E of the Prison Act 1952

Where Crown Immunity does not apply and where it is not desirable to extend Crown Immunity, and instances where Crown Immunity is not an appropriate means of authorising activity, there will be a need for specific authorisation under the terms of section 40B (for List A items) or 40E (for other authorisations) of the Prison Act 1952. Such authorisations are already provided to a number of individuals and groups for specific purposes on behalf of the Secretary of State. Other authorisations can be made locally, where considered appropriate, by governors and directors of contracted out prisons for their individual establishments or by the Area Manager on behalf of the Secretary of State.

Points to note on authorisations:

Mobile phones

Mobile phones are a serious threat to the security of prison establishments. Where there is legitimate use of mobile phones by staff within a prison, their use should be covered by a specific section 40E authorisation.

The additional restrictions concerning the use of mobile phones do not apply to fully open prisons, due to the lower level of security concern. Subject to the local agreement of the governor, a section 40E authorisation for conveying of mobile phones for staff or professional visitors working at open prisons can be operated.

Passing of List C items to prisoners

The taking in to prison of items listed under List C becomes an offence and will only need authorisation under these rules if the intention is to give one of these items to a prisoner. For example, there is no offence committed by taking money into a prison, but there is an offence if the intention is to pass money to prisoners or money is actually passed to prisoners. There may also be local prison rules prohibiting the taking in of some of these items or more than a certain quantity of these items. The local rules must be adhered to.

The giving of any of these items to a prisoner is an offence unless the person's normal duties are to give / sell these items to prisoners. If prison staff need to give any List C item to a prisoner and it is not part of their job to do so, they must seek specific authority from the governor.

Solicitors

Solicitors and other legal advisers to prisoners have been issued with central authority to take into prison sound recording devices to allow them to record interviews with their clients. The recording devices can be digital or mechanical devices, but must not contain a camera, video recorder or mobile phone. The devices must not be passed to prisoners. The Law Society and Criminal Bar Association have been informed of the authorisation and associated restrictions.

Solicitors do not have central authority to take mobile phones into prison, other than at open prisons, and only then if the local prison regulations allow this.

Taking a laptop computer into a prison is not an offence under this legislation. An offence is only committed if the intention of taking the item into the prison is to pass it to a prisoner. Solicitors must follow current rules and regulations on taking IT equipment into a prison. Solicitors must obtain authorisation to take disks and other IT storage media into a prison, in order to permit IT accessibility for prisoners with Access to Justice laptops.

Delivery drivers

Delivery vehicles are often required to drive directly into prisons. The vehicles may be conveying unauthorised items. Central authorisations have been issued to allow delivery drivers to take into prisons, for example, controlled drugs to a pharmacy. The authorisation is valid where the driver has a legitimate delivery note for the item. The delivery note must detail the name of the prison being entered.

Delivery vehicles will often have mobile phones. A central authorisation has been issued that allows these phones to enter the prison in the cab of the delivery vehicle. The phone must remain in the cab of the vehicle, and the vehicle must be the subject of staff supervision whilst in the prison.

Pest control

On rare occasions, prisons are granted authority to employ a licensed marksman to shoot pests. A local Section 40B authorisation will be needed to take firearms and ammunition into a prison.

Medication

A central section 40B authorisation is provided for staff to bring in controlled drugs as part of prescribed medication for their own use, subject to the agreement of the governor / director. Under the authorisation, visitors may also bring in prescribed drugs for their own use, as long as they declare them and state it is necessary for them to take the drugs whilst in the prison, follow any relevant prison rules, and the prison agrees.

Gangs in Prison

There is evidence that serious and organised criminals are coordinating crimes both within and outside the prison walls. This contributes to high levels of violence in prison: violence is used to enforce debts, and fighting, self-harm and fire-setting may be used by debtors in an attempt to escape their debt. Existing gang affiliations will continue in prison and new gangs will form. In addition, urban street gang membership in the community leads to violence between rival gangs in prison.

Where a crime is reported to the police, the prison governor will ensure that all appropriate actions are taken by the establishment to support a successful prosecution. This may include the provision of information about high risk prison groups, such as Urban Street Gangs or Organised Crime Groups.

This police will, where appropriate, gather evidence of gang affiliation from the prison estate. The evidence may be admissible as bad character evidence under section 101(1)(c) or 101(1)(d) of the Criminal Justice Act 2003 (R v Awoyemi and others [2016] EWCA Crim 668). A police officer, whose training or practical experience has given him a balanced body of specialist knowledge about criminal gangs, can give evidence as an expert witnesses (Myers and others v The Queen [2016] Ac 314, Privy Council; R v Lewis [2014] EWCA Crim 48).

Prison intelligence about gang affiliation should be provided to the CPS at the earliest opportunity, in a format which is easy to understand. Such intelligence may indicate prisoner affiliations and / or why an act of violence is prison happened. Prosecutors should be alert to the possibility of the intelligence being marked as 'sensitive'.
The file submitted to the CPS will, ideally, include a Prison Community Impact Statement, the content of which may assist in making the decision as to whether or not it is in the public interest to bring proceedings.

When considering the public interest stage, prosecutors should note that gang-related offending is a factor standing in favour of prosecution; especially so if there is also evidence of racial or religious aggravation.

Gang related issues may be relevant to witness reluctance. Prosecutors should consider applications for anonymity for prisoner witnesses in the same way as they are relevant to other witnesses.

Evidence of gang activity in prison is potentially relevant to a subsequent application for a Serious Crime Prevention Order (SCPO). The evidence will be relevant to the statutory test in section 19(2) of the Serious Crime Act 2007: the court may make a SCPO if it has reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting involvement by the person in serious crime in England and Wales.

Prison Community Impact Statements

The purpose of the Prison Community Impact Statement (PCIS) is to provide relevant and useful information on behalf of the prison about the impact the offence has had on the prison. Offences committed within prison can often have wider implications on matters such as control and order, and fear of crime, both of which have a different dynamic in the prison environment when compared to the wider community.

Prosecutors may use PCIS to assist in deciding whether a prosecution is required in the public interest. See also the legal guidance about Community Impact Statements.

Procedure: Handcuffing of Prisoners at Court

If a prisoner is thought to be violent or likely to attempt to escape, the prison / police should request the CPS to make an application for the prisoner to wear handcuffs in court. The CPS should be provided with a report from the governor giving full reasons why an application is necessary. The CPS advocate must decide whether the application is appropriate.

A full file note should be made of the grounds of the application and any reasons for decisions. This is particularly so when verbal information is given by the police. The report from the governor should be kept on the CPS file. Refer to Handcuffing of Defendants elsewhere in the Legal Guidance.

Sentencing

The Sentencing Council Definitive Guidelines on Offences Taken into Consideration and Totality states that consecutive sentences will ordinarily be appropriate where any offence is committed within the prison context.

Further reading