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The Offender Management Act 2007

Principle

The measures provided by Sections 21-24 of the Offender Management Act 2007 ("OMA") are designed to ensure tighter control of items taken into and out of prisons, particularly sensitive documents and mobile telecommunication technology, as well as introducing options to pursue criminal charges against anyone in breach of the relevant sections of the Act. Sections 21-24 OMA come into effect on 1 April 2008.

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Guidance

Introduction

Sections 21-24 OMA 2007 update and introduce changes to the Prison Act 1952, which tighten prison security arrangements and controls. The sections aim to prevent illegal activities within a prison context.

Sections 21-24 OMA 2007 create a number of new criminal offences namely:

  • making the bringing in and/or taking out of prison without authorisation of certain articles graded into one of three categories - A, B and C, with the unauthorised conveyance in/out of prison of list A articles being the most serious criminal offence and list C the least serious;
  • the unauthorised use within prison of certain items, for example cameras and sound recording devices;
  • the conveying out of prison of "restricted documents", such as prisoner files and photographs, without prior authorisation.

The provisions take into account new technology, particularly mobile telephones and other electronic media, and the potential threat to security that these pose within a prison environment.

Summary of changes to legislation

Section 21 of the OMA 2007 amends section 39 of the Prison Act 1952. The amendment provides that:

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

Sections 22- 24 of the OMA 2007 replace section 40 (unlawful conveyance of spirits or tobacco into prison) of the Prison Act 1952 with new sections 40A - 40F.

Section 23 (2) of the OMA abolishes section 41 of the Prison Act 1952 (unlawful introduction of letters and other articles).

In addition, Prison Rule 70 has been amended. The Rule now prohibits unauthorised items on penalty of confiscation by the authorities. There are no criminal offences now associated with this particular rule.

Conveyance of articles (Section 22 OMA 2007)

Section 40 of the Prison Act 1952 is replaced by Sections 40A, 40B and 40C OMA 2007. The new sections clarify the existing law, make changes to the penalties for certain offences and create new offences of taking mobile phones, sound recording devices and cameras into a prison.

Section 40A 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 now 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 or 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.

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.

Defences

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.

Other offences relating to prison security (Section 23 OMA 2007)

Section 40D of the revised Prison Act creates new 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.

Definitions

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 or operation of the prison.

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

Defences

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.

Authorisation for legitimate conveyance and use

Prosecutors should note that there will be instances in which there are legitimate reasons why staff or professional visitors may seek to convey a 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 new Prison Act 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 persons 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 40B-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.

Mobile Phones

Mobile phones are a serious threat to the security of prison establishments. Where there is a 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.

Prosecutors should note that it has always been an offence, under the previous Prison Act and Rules, to take into prison items included in List C with the intent of giving them to a prisoner.

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 by HM Prison Service 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, at present, an offence under this legislation. IT equipment is a List C item. 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. (See separate guidance concerning weapons).

Useful references

Offensive weapons, knives, bladed and pointed articles, in our legal guidance section
Offender Management Act 2007

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