KLS Criminal Justice Notes January 1, 2019 Criminal Justice Notes In this month’s edition of KLS Criminal Justice Notes: • The Prisons (Interference with Wireless Telegraphy) Act 2018 has come into force. It empowers the Home Secretary to authorise mobile phone service or network providers to block phone/internet signals in prisons. The aim is to help combat the carrying on of criminal activities from within prison, but the Act’s provisions raise deeper issues of privatisation in criminal law enforcement and surveillance. • In a recent decision in R (Stott) v Secretary of State for Justice [2018] UKSC 59, the UK Supreme Court decided by a three to two majority that the harsher treatment on parole eligibility for a single category of prisoners does not amount to unlawful discrimination contrary to Article 14 of the European Convention on Human Rights. However, the majority’s reasoning is not entirely convincing. • On the 18th December 2018, the Irish government published an Implementation Plan for the recommendations contained in the report of the Commission on the Future of Policing in Ireland. The style and substance of the Plan do not inspire confidence that the Commission recommendations will be implemented in full or wholly to the effect envisaged by the Commission. ___________________________________________________________________________ Mobile Phones in Prison sections and a schedule. One of the sections inserts four new subsections in the 2012 The Prisons (Interference with Wireless Act, while the other is a technical section. Telegraphy) Act 2018 was one of three The schedule effects consequential Acts to receive the Royal Assent on the 20th amendments to three sections of the 2012 December 2018, although it will only come Act. However, there may be more to the into force when the Home Secretary makes Act than meets the eye. the relevant regulations. It began life as Problems caused by the use of illicit mobile part of the Prisons and Courts Bill which fell phones in prison are increasing rapidly as at the last election. Subsequently, its mobile phone technology and design are provisions were carved out of that Bill and advancing. Devices no larger than a finger re-presented as a Private Members Bill can be easily smuggled into prisons and which was supported by the government have the capacity to provide the full range and the opposition. of electronic (including internet) Superficially, the Act appears quite communications. They are being used by innocuous. Essentially, it amends the Prisons some prisoners to carry on criminal (Interference with Wireless Telegraphy) Act activities outside prison, including: terrorism 2012 to permit mobile phone service or and organised crime operations, contract network providers to interfere with phone murders, the importation of large quantities signals in prisons. It consists of a mere two of drugs and firearms into the UK, the intimidation of witnesses and the continued 1 KLS Criminal Justice Notes January 1, 2019 harassment of victims of abusive behaviour authorised governor can deploy equipment as well as the importation of drugs and to detect and block mobile phone signals contraband into prison. They also, of and to investigate the use of illicit phones in course, present a potent threat to the the prison. internal safety and security of prisons, especially by facilitating the importation of The Prisons (Interference with Wireless drugs and contraband, and generally Telegraphy) Act 2018 amends the 2012 helping to drive the illicit economy within Act essentially to harness the “unrivalled prison. technical knowledge, specialised expertise and ingenuity” of the phone companies and Attempts to combat the use of illicit mobile network operators to block the use of phones (and related devices) in prison unauthorised mobile phones (including any through the conventional criminal law have device capable of transmitting or receiving proved unsuccessful. It is an offence to images, sounds or information by electronic possess or use a mobile phone in prison communication) in prison. Accordingly, it without authorisation, but prosecutions are empowers the Home Secretary to authorise rare due largely to the inherent difficulties a Public Communications Provider (PCP) to in finding such easily concealed devices interfere with wireless telegraphy to and in identifying the user. In recent years prevent the use of a mobile phone (or the focus of control has switched to similar device), or to detect or investigate disconnecting phones and blocking mobile the use of such an item, in a prison in phone signals in prisons. England and Wales. The authorisation can relate to a single prison or type of prison Regulations issued under the Serious Crime or to prisons/institutions generally. Act 2015, for example, empower a County Court in England and Wales, or Sheriff’s A PCP so authorised will be in the same Court in Scotland to issue an order position as an authorised governor of the compelling a mobile network operator to prison or prisons concerned. It will have the disconnect mobile phone handsets and SIM power to deploy and activate equipment cards that are found to be operative to block phone signals to the prison, detect without authorisation in a prison. Blocking a mobile phone usage within the prison and mobile phone signal to the prison is not so record traffic data information on such straightforward, as it is generally a phone usage. Pursuant to directions from criminal offence to interfere deliberately the Home Secretary, information obtained with wireless telegraphy. However, the from the interference must be provided to Prisons (Interference with Wireless the governor of the prison concerned or to Telegraphy) Act 2012 stipulates that such the Home Secretary. These directions will action is lawful for the purpose of also specify the frequency or occasions on detecting or preventing the use of illegal which the information must be provided. mobile phones in prison when it is carried Separate direction issued to the governor out by someone “authorised” under that concerned will specify information that must Act. Moreover, the Home Secretary is be provided to the independent empowered to authorise the governor of a communications regulator OFCOM. The prison to interfere deliberately with information supplied to a governor wireless telegraphy in his or her prison to pursuant to these provisions must be prevent the use of illicit phones or to detect destroyed after three months, unless the or investigate their use. In other words, an governor orders its further retention on 2 KLS Criminal Justice Notes January 1, 2019 specified grounds. The Home Secretary blocking phone signals and in detecting must also give directions to an authorised and collecting data on the use of illicit PCP on the circumstances in which the use of phones. In other words, it will be functioning interference equipment must be modified effectively as a police or criminal law or stopped. A PCP must comply with any enforcement authority in combating the use such directions. of illicit phones in prison. Authorising and depending on a private commercial Although an authorised PCP will be acting operator to discharge such functions, which independently in interfering with wireless are not its core business, raise serious telegraphy in a prison, it would appear questions about oversight, accountability that the governor of the prison concerned and transparency in respect of these public will retain ultimate responsibility for the law enforcement powers and interference in his or her institution. responsibilities. Accordingly, it is the governor in question who will be responsible for providing the The Act is strangely silent on key matters information on interference activities to the such as when the Home Secretary can independent regulatory body OFCOM. authorise a PCP to conduct interference in respect of a prison. Equally, it is not clear It is easy to appreciate the importance of what, if any, criteria will inform a decision effective measures to prevent the use of by an authorised PCP to initiate (and illicit mobile phones in prison. That, cease) an interference. It is stated that the however, should not divert attention from Home Secretary must specify descriptions some of the less obvious implications of the of information that should be provided deceptively innocuous provisions of the from an interference, as well as the 2018 Act. One of the most striking features frequency and occasions on which the is the extent to which it facilitates the information is to be provided. However, delegation of criminal law enforcement those directions relate to the gathering of power and responsibility to private traffic data in the course of an commercial operators. A PCP is in the interference, rather than to the act of business of providing phone and internet interference itself. It is possible, of course, connectivity and services for profit. Policing that further guidance will be provided in how, and the extent to which, phones are communications between the Home being used in prisons is not part of its core Secretary and PCPs. Nevertheless, the fact business. Nevertheless, when authorised that they are not addressed more fully in under the Act by the Home Secretary, a the Act leaves much scope for the exercise PCP acquires that broad responsibility in of these sensitive powers to be shaped respect of the prison or prisons in question. behind the scenes by the executive and the Significantly, this responsibility is different private commercial operators. in kind from recording and retaining the Also notable is the silence on the financial traffic data of mainstream customers’ costs associated with the conduct of an phone usage; data which the operator may interference and how they will be be required to make available to the defrayed. It would be surprising if the police etc on request on a case by case PCPs are left to pick up the tab, which basis for the investigation of crime.