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Prisons (Property) Bill

Volume 742: debated on Friday 18 January 2013

Second Reading

Moved by

My Lords, although it is short and relatively simple, I hope that the House will agree that the Prisons (Property) Bill is nevertheless important. In introducing it, I must congratulate Stuart Andrew, the Member of Parliament for Pudsey, for bringing it forward and successfully piloting it through the other place and express my gratitude to him for giving me the opportunity of continuing his work and putting it before your Lordships. I am conscious that it is not unconnected with the intention of the Prisons (Interference with Wireless Telegraphy) Bill, recently taken through this House by my noble friend Lord Laming.

I do not think I need to delay the House by taking noble Lords through the straightforward text of the Bill, bearing in mind that its provisions are set out in some detail in the Explanatory Notes. However, because some Members of the other place questioned why it was required at all, it might be helpful if I explained its necessity. Very rightly, prisoners are allowed to have in their possession sufficient property to satisfy their daily needs. Such property is authorised by the governor or director of a prison, with each item being recorded on a prisoner’s property card. The purpose of this Bill is not to interfere with a prisoner’s right to have and enjoy authorised items but to deal with property he or she should not have or that has been adapted for an unauthorised use.

Mobile phones are one of the most unwelcome forms of unauthorised property in prisons. Not only are they linked with some serious crimes in prison but they are used to organise crimes, including murder and drug dealing, in the community. The Offender Management Act 2007 and the Crime and Security Act 2010 made the possession of mobile phones in prison a criminal offence and introduced measures to try to reduce the chances of their being smuggled in, on which the National Offender Management Service has since done some excellent work.

However, in 2009, the administrative court found that, in the particular case of a mobile phone, there was no lawful basis for permanent confiscation or destruction of property confiscated from a prisoner. As a result, the Prison Service currently has to store unauthorised property confiscated from prisoners in a central storage facility until their release, at which time the governor is required to return it if the prisoner from whom it was removed asks for it, which, in reality, very rarely happens. For example, in 2011 only 112 out of 41,000 mobile phones—of which only 49% were attributable to specific prisoners—stored at a cost of around £20,000 per year were claimed. Noble Lords will therefore recognise why, in the eyes of the Prison Service, the consequences of the administrative court’s decision are perverse.

However, the problem goes much wider than just mobile phones. Prisoners may be found in possession of unauthorised items, which, while not strictly illegal, are considered to be contrary to the safe and secure running of a prison or need to be controlled for reasons of space. Governors are also faced with the problem of authorised items that have been adapted for an unauthorised use, such as shoes or radios adapted to conceal drugs, or toothbrushes or razors adapted to create offensive weapons. I am sure that noble Lords will agree that it is unacceptable for prison governors and directors not to have appropriate powers to deal with these items.

Therefore, the Bill aims to put that right, supplementing the Offender Management Act and the Crime and Security Act, by giving governors and directors a statutory power to destroy or otherwise dispose of unauthorised, unattributed or adapted property found in a prison or a prison escort vehicle, should they consider such action appropriate.

It is important to note that the Bill does not require the destruction of any property but merely confers a discretionary power on prison governors and directors to destroy confiscated items. In cases where an item is illegal per se, such as a mobile phone, the presumption will be that it will be destroyed or otherwise disposed of, but where an item is not in itself illegal, I expect that governors and directors will confiscate it and then decide whether it should be held in storage, for return on release, or whether the prisoner should be required to have it removed from the prison.

There will be a six-month delay from the commencement of the Bill before any previously confiscated property can be destroyed or disposed of. In all other cases, prisoners will have a limited time period, yet to be agreed, during which they will be able to appeal against destruction or disposal, which safeguards the ruling that this should be considered only after all other options have been explored and deemed inappropriate.

However, the Bill is not about just the destruction of confiscated property. It also gives prison governors and directors what I think is an important option; namely, the power to dispose of an item, including the option of selling it. If confiscated items have a monetary value, why should that not be realised, with any profits raised not kept by the National Offender Management Service but donated to an appropriate charity? Governors could also donate such items directly to a charity or recycle them—subject, of course, to any security or other requirements. I would not want to encourage noble Lords to think that significant sums of money might be raised by this provision, because I suspect that most confiscated items will have little or no monetary value, but I think that it is an option that should be made available.

In order for this new power to be truly effective, it must be retrospective in respect of unauthorised cameras, sound recording devices and electronic communication devices or mobile phones found before the commencement of the Bill. Noble Lords will quite rightly expect that where a retrospective power is claimed, safeguards for its limitation and proper use are included. I hope, therefore, that noble Lords will note that the retrospective provisions in the Bill are strictly limited, being intended primarily to enable the Prison Service to deal with the large number of mobile phones currently held in storage.

This Bill strikes a fair balance between a prisoner’s property rights and interests on the one hand and, on the other, the public interest in removing from prison and destroying property that may prejudice good order and discipline or prison security. Guidance on the exercise of the powers it contains will be given to governors and directors in a Prison Service instruction. I beg to move.

My Lords, one of the great attractions of Private Members’ Bills is that they often provide an opportunity to bring forward a non-controversial measure that is so straightforward and makes such sense that one is left wondering why it has not been done before. This appears to be one such Bill, and I welcome the fact that it does not seek to be overly complex, as sometimes can seem the case with legislation. I concur with the noble Lord, Lord Ramsbotham, in congratulating Stuart Andrew on bringing this Bill forward in the other place and welcome the fact that the noble Lord, Lord Ramsbotham, has brought it to your Lordships’ House.

I suspect that most people, had they given this issue much thought, would have assumed that the powers this Bill seeks to provide were already in place. My understanding is that governors, officers, parliamentarians and others will welcome the Bill because of the clarity it provides about the powers held by a prison governor or director. The aim of the legislation is clear and realistic, as we have heard. It will allow a governor of a prison, young offender institution or secure training centre to,

“destroy or otherwise dispose of”—

including by selling—any unauthorised property. Unauthorised property includes items that are unlawful to possess. We all know that unauthorised items such as drugs and mobile phones are found in prisons.

My first position in government was as Parliamentary Private Secretary to the Prisons Minister—now the noble Lord, Lord Boateng—and it does appear that, whatever the level of security, these items still find their way into prisons. Clearly, this proposed legislation does not mean that the work to address that issue will not continue, but it is in itself a useful, practical and sensible measure.

However, if the issue of drugs, knives, mobile phones and iPhones getting into prisons could be tackled, this Bill would not be needed—or would be rarely used. I will take this opportunity to ask the Minister about the action being taken to stop such unauthorised and sometimes illegal items getting into prisons. I am happy to have that in writing because it is the central problem that this Bill is seeking to address.

Although it has been argued that items can be stored in a prison for a certain period and returned to the prisoner on release, as we have heard, not only does the cost of that storage fall on the National Offender Management Service but there is the issue of whether it is appropriate to hold and return unauthorised items. I cannot imagine anyone suggesting that illegal items should be returned to prisoners on release. The current rules state that any article belonging to a prisoner that remains unclaimed for more than a year after he leaves prison, or a year after his death, may be sold or otherwise disposed of. But at present governors cannot destroy property, even unauthorised property, if the prisoner says they want it returned at some later date.

As we have heard, mobile phones are some of the most commonly found items in prisons. The noble Lord, Lord Ramsbotham, did the House a service by being very clear about the dangers and problems that are caused by mobile phones in prison. In case anyone is in doubt, the use of mobile phones in prison is not a benign or minor infringement of the rules. I vividly recall, when I was a Member of the other place, the case of a constituent whose daughter had been murdered. The man convicted of the murder used a mobile phone to telephone the press about the case, and articles based on the interviews with him were profoundly distressing to my constituent. There are several more detailed aspects to that case that are not relevant to this debate, but I use it to illustrate the point—which was also very well made by the noble Lord, Lord Ramsbotham—that the rule not to allow mobile phones in prison is there for very good reasons.

Clearly, mobile phones are legal outside prison—although some people who travel on public transport might have doubts about that—and it could be argued that these should be returned to a prisoner on release. Few prisoners would confess that a phone was theirs, and it is not always easy to identify ownership, so it is not always possible to return the phone to its “rightful” owner, and this Bill clarifies what should happen in such situations.

Following the High Court ruling in the case of Coleman in 2009, I understand—and it has been confirmed by the noble Lord, Lord Ramsbotham—that governors have been told that they do not have a general power to confiscate permanently or destroy a prisoner’s property, although they had previously done so. I also understand that items had been sold in the past and profits or proceeds have been made available to Nacro.

We are very supportive of this Bill, but it would be helpful to have some clarification on just a couple of issues. Will the Bill remove any possibility of legal challenge, as in the Coleman case, and ensure that there is not a case for compensation from prisoners for their property after they have left prison? What consideration has been given to how items will be disposed of? We have all read and heard reports of where computers have not been wiped. There is clearly a need to ensure that if items such as mobile phones, including iPhones, and small notebooks have information stored on them, it is removed before they are sold. Will the Government issue guidance on whose responsibility that will be and what should happen to the proceeds of any sales? I know that in the other place, although it was accepted that Nacro was an appropriate body to receive such proceeds, it was asked whether Victim Support could also be included. Other organisations may wish to be considered, but I suspect that we are not talking about vast sums of money.

This is a sensible Bill; it clarifies the law; and it has our support.

My Lords, first, I thank the noble Lord, Lord Ramsbotham, for introducing the Bill for your Lordships’ consideration and, as ever, for his important contribution. I fully acknowledge and pay tribute to his extensive knowledge of the Prison Service. As always, his knowledge and experience is of great assistance to the House; we are eternally grateful for that. I also thank the noble Baroness, Lady Smith of Basildon, for her full support of the Bill. Although, as has been acknowledged, the Bill is short, it is also essential. It will make a very useful contribution to the package of measures already in place to keep good order and security in our prisons.

As the noble Lord, Lord Ramsbotham, said, the Bill complements the Prisons (Interference with Wireless Telegraphy) Bill, which I also supported in this House last month, introduced by the noble Lord, Lord Laming. I also thank my honourable friend in another place, Stuart Andrew, for bringing forward this valuable Bill, which has the full support of the Government.

It may be of assistance at this juncture if I explain to the House the current arrangements for dealing with property that a prison governor or director has not authorised a prisoner to possess. When discovered, an item will be confiscated unless it is noxious, in which case it will be destroyed. If it is something such as an offensive weapon or a controlled drug it will be passed to the police for them to deal with; all other items may be confiscated but only temporarily. It is this anomaly, which the noble Baroness picked up, of being able only temporarily to confiscate an item and having to return it to a prisoner on release that the Bill aims to address.

The consequence of the current limited power of confiscation is that confiscated property has to be stored either locally at the prison or at the Prison Service’s central facility until the prisoner is released from custody. If the prisoner asks for the item to be returned to them on release, the prison must do so. This limitation on prison governors’ and directors’ authority cannot be right. It also places a considerable but unnecessary burden on the Prison Service in that it has to find storage facilities and meet the cost of that storage.

It is extraordinary what lengths prisoners will go to to try to smuggle illicit items into prison and the ingenuity that they show at times in adapting ordinary, everyday items for an illicit purpose. An illustration of that is the example highlighted by the National Offender Management Service’s north west search team, which reported the seizure of three weapons at Her Majesty’s Prison in Wymott, near Preston. During the course of a search of prisoner accommodation, three adapted slashing weapons, wrapped together in a strip of bed sheeting, were found wedged behind copper piping in a wing toilet. The weapons had been adapted from authorised items: namely, a disposable razor, toothbrush handles, a strip of bed sheeting and disposable razor blades.

The intention behind the Bill, therefore, is to provide a lawful basis for the disposal of all unauthorised property found in prisons or authorised property which has been adapted for an unauthorised purpose. It will give a discretionary power—that is important; it is a discretionary power—to prison governors and directors which will allow them to confiscate and then destroy, dispose of or sell property that prisoners have in their possession that they should not have.

The items that that includes are: those that would be illegal to possess in the community, such as illicit drugs; those items which can threaten prison security and good order, such as mobile phones, which the noble Baroness and the noble Lord mentioned, which are unlawful to posses in prison; authorised items that have been adapted to conceal illicit items, as the example that I mentioned illustrates; and items that have been smuggled into the prison or coerced from another prisoner. The Bill will provide the required power to deal with items such as these.

The power to destroy confiscated property is discretionary, and I assure the House that this power will be exercised in a proportionate manner. It is right that items that are illegal to possess per se should be destroyed. However, prisoners may also be found in possession of items which are not illegal to possess in themselves, but which they are nevertheless not authorised to have in their possession. Those items of property will, I believe, be dealt with differently in practice. I expect that both governors and directors will normally confiscate the unauthorised item and then, subject to concerns such as good order, discipline or prison security, will consider other methods of dealing with the property short of destruction or disposal. That may include authorising the item in question, holding it in storage for return to the prisoner on release, or requiring the prisoner to remove the item from the prison. However, destruction of property will remain an option for the governor should other disposal options be deemed inappropriate. As is normal practice, guidance on the exercise of the powers conferred by the Bill will be set out in a Prison Service instruction—a point on which the noble Baroness sought clarification.

The noble Lord, Lord Ramsbotham, explained that the Bill will specifically enable the destruction or other disposal of certain property which was seized prior to commencement of the Bill and which remains unclaimed six months after commencement. The retrospective nature of this power obviously may cause some concern, but it is limited, and safeguards have been built in that I believe should provide reassurance to the House. However, in order for the power to be effective, a limited retrospective power is, in our view, necessary. The power will apply only to some unauthorised property found before the commencement of the Bill, namely cameras, sound recording devises and electronic communication devices; that is, as has been referred to previously, mobile phones. Noble Lords will be aware that mobile phones are some of the most unwanted items of property that we have in prisons. Again, as the noble Lord illustrated, there are examples where they are used for a variety of crimes within prisons. They can be linked to serious crimes and have been used to organise crimes ranging from murders to drug dealing in the community. The destruction of such property will assist in our legitimate objectives of crime prevention and public safety.

The Bill contains a specific provision to give prisoners and others an opportunity to claim back the property before destruction or disposal. The period for claiming back the property is generous enough, I think, at six months. I hope that the House will be reassured by that.

The noble Baroness raised some specific questions about legal challenge on items that have been taken; how those items will be disposed of; and the issue of the proceeds of the sale. If I may, I will take the liberty of writing to her after the debate with the detail; I will of course ensure that that letter is shared by placing it in the Library of the House.

As has been acknowledged by both the noble Baroness and the noble Lord, the Bill is a common-sense measure. It strikes a fair balance between a prisoner’s property interests and the public interest in removing from prison and destroying property which may prejudice good order and discipline or, most importantly, prison security. I am sure that many ordinary people will be startled and surprised—as I was—to learn how the law stands. Prisons can find items that should not be on the premises but have no power to destroy them. The Bill is an important step forward, and one that rectifies an unacceptable anomaly. It will allow governors to run safe, secure regimes, with rules that are meaningfully enforceable.

Once again, I thank the noble Lord, Lord Ramsbotham, for taking up this issue. I fully commend the Bill to the House; the Government are pleased to lend it their support.

My Lords, I am very grateful to the Minister and the noble Baroness, Lady Smith of Basildon, for their support for this Bill, which echoes the support given by all sides in the other place. I am also very glad to note that the Bill enjoys the full support of the Prison Governors Association and the Prison Officers’ Association, whose operations inside prisons will be made much easier by having statutory provision to take action against things which have always caused problems. I have no doubt that it will also resonate with the ombudsman. When you look at the cases that the ombudsman has to deal with in a year, most are to do with property and many are to do with legal property. I was always amused by how some ragged pair of old jeans became designer jeans when it came to a claim. There is also the business of being unauthorised and the question of space.

I am very grateful to the Minister for taking up the two questions raised by the noble Baroness about legal challenges and disposal. I look forward to that answer. I therefore very much hope that the House will give this Bill a Second Reading.

Bill read a second time and committed to a Committee of the Whole House.