Prisons (Property) Bill

David Nuttall Excerpts

Friday 30th November 2012 Commons Chamber

[Philip Davies]

I am grateful to my hon. Friend. He might think it easy for me to say—now he has made the point—but I was specifically thinking of hospitals when I drew up the amendment. As he said, lots of prisoners have health problems and require medical treatment, entailing a trip either to a doctors’ surgery for an assessment or to hospital for treatment or a more detailed assessment. The last Government did an awful lot in that regard, taking forward telemedicine so that people could be seen while still in prison via video link. That was a perfectly good innovation, but it does not apply in every case. As my hon. Friend said, prisoners often have to visit hospital.

It is not just about hospitals, however; lots of prisoners go out to work on day release, if they are coming to the end of their sentence, as part of their rehabilitation. Many people in open prisons go out to work or out into other parts of society to do some rehabilitation work. As things stand, however, it seems that the Bill would not cover those people. People in custody also go to court, either to have their remand hearing considered or to have further charges put to them, and it would be bizarre if something was found while somebody was in court but was not covered by the Bill just because they happened to be in court rather than in prison.

I genuinely do not know—perhaps the Minister will tell us—how many trips are paid to hospital, how many people go out to work each day or how many court appearances are made, but I am sure there are people with better minds in this place who do know. It would help to have that information. It seems to me, however, that many people make such trips, so there might be a large loophole when prisoners are away from their prison and prisoner escort vehicle and therefore not covered by the Bill.

I am also slightly concerned about the use of the term “prisoner escort vehicle”. I wonder exactly what it covers. Again, I would not want people to get away on a technicality. We have lots of clever members of the legal profession in the House, my hon. Friend the Member for Bury North (Mr Nuttall) being one of them, and I would not want any of those clever people—much cleverer than me—to be able to find a loophole by which it could be claimed that a vehicle was not strictly speaking a “prisoner escort vehicle”. I wonder, therefore, if we have a definition of exactly what it means.

[Mr David Nuttall (Bury North) (Con)]

My hon. Friend makes a valid point about the definition of “prisoner escort vehicle”, but I am concerned that the problem would not be dealt with by his amendment 2, on the grounds that a similarly silver-tongued lawyer might say that “location” does not include a moving vehicle.

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We come to amendment 4. [Interruption.] Does my hon. Friend the Member for Bury North wish to intervene?

[Mr Nuttall]

indicated dissent.

[Philip Davies]

I was misguided in thinking that my hon. Friend momentarily wanted to intervene, but he did not. He has obviously been so persuaded by my case that he could not think of anything in amendment 4 to disagree with, as he could with amendment 3.

Proposed new section 42A of the Prison Act 1952, in clause 1, deals with

“Disposal of unauthorised or unattributable property”.

Where an article is being used for any of the purposes set out in subsection (3), it is not authorised. Those purposes include

“concealing an article which a prisoner is not authorised to have in his or her possession…causing harm to the prisoner or others…prejudicing the security or operation of the prison.”

My amendment 4 would add another category, in proposed new subsection (3)(d), which reads:

“for any unauthorised or unlawful purpose.”

Again, the amendment is designed to strengthen the reasons in the Bill for which property may be confiscated and destroyed. Perhaps it is too restricting simply to use the criteria currently set out in subsection (3). There could be circumstances where property was being used for another unlawful or unauthorised purpose, which would not be covered without my amendment. Surely we are not talking just about things that cause harm to the prisoner or prejudice the security or operation of the prison. Subsection (3)(a) refers to

“concealing an article which a prisoner is not authorised to have”,

but what if someone is caught red handed with an article that they are not concealing, but brandishing openly in front of everybody? Would we then find ourselves in the ridiculous situation where if a prisoner was hiding the article, that would be covered, but if they were brandishing it openly, that would not?

Perhaps my hon. Friend the Member for Pudsey is satisfied that everything is covered by the Bill. However, there is certainly no harm in the belt-and-braces approach adopted by my amendment. For example, what if an item was being used to facilitate the taking of drugs? That would not necessarily fall under either “concealing” an item or

“causing harm to the prisoner or others”,

nor would it be

“prejudicing the security or operation of the prison”,

yet I am sure we would all want to ensure that those things were covered. My amendment would introduce a catch-all element to ensure that any property associated with any unauthorised or unlawful use could be seized and disposed of.

Amendment 5 would insert

“recycling it or donating it to any charity”

at the end of proposed new section 42A(5)(c) of the 1952 Act, as set out in clause 1. Again, I guess—[Interruption.] I am pleased to see the return of my hon. Friend the Member for Bury North, because this might be another area where he can help out, with his undoubted expertise on legal matters. As the Bill stands, proposed new subsection (5) says:

“In this section…references to disposing of an article include selling it”,

but I do not know whether the Bill is trying to say, “You can do that if you want to,” or whether that is the preferred way of dealing with such articles. In any case, if references to the disposal of an item are to include selling it, it seems perfectly worth while to include other options, including recycling things or donating them to any charity. If items could only be either destroyed or sold, that would leave out some of the things that most people would consider to be the most appropriate ways of disposing of them. If we were talking about things of particular use to a charity or things that could be recycled, why would we not want to do that?

[Philip Davies]

I am grateful to my hon. Friend. As ever, he is eagle-eyed on these matters. The point he makes about proposed new section 42A(1) is a good one, but like him, I would have thought that if “otherwise dispose of” included any other method, there would be no need for the words “selling it” in proposed new subsection 42A(5). Perhaps the Minister may like to explain that. My concern is that the Bill might encourage prisons to go down that line—it is as though that kind of behaviour is being encouraged. Personally, the behaviour I would most like to encourage is recycling or donating to charity. The things that are most likely to be caught include mobile phones, for instance, which mobile phone companies are trying to encourage us to recycle. It would be bizarre if we ended up destroying things that could otherwise be recycled.

[Mr Nuttall]

In drafting amendment 4, my hon. Friend has not referred specifically to a “registered charity”, but simply to a “charity”. I wonder whether he could clarify whether, in not using the word “registered”, he had in mind general good causes, which might not necessarily have formally registered as charities.

[Philip Davies]

My hon. Friend makes a good point. It just goes to show the value I would have gained from speaking to him before I drew up my amendments. There is certainly a lesson in there for me. Indeed, given his nature and the fact that he is so expert at looking at such details, I am rather surprised that I did not discuss my amendments with him before tabling them. He makes a good point, although he seemed to imply that I went through a certain thought process—that I considered putting down “any registered charity”, but made a conscious decision not to and instead just put down “any charity”. He is doing me far too much credit by suggesting that I went through that thought process. The fact of the matter is—as I am sure you would have well known, Madam Deputy Speaker, knowing me as you do—that I did not go through any such thought process. I merely put down the sentiment, I guess, that such items should be given to any charity. I will certainly consult my hon. Friend in future, because as ever he spots things that I always miss. If he will bear with me, I will leave that detail to one side for the moment.

We should trust the prison officers, governors and directors to decide how best to deal with the items in question. I would not want us to push them down a particular route if there was a better one available. They might wish to support a local charity, for example, and the amendment would encourage them to use their discretion as widely as possible. My suggestion on Second Reading regarding the use of eBay was mentioned in Committee. Prisons might be able to make some money from the sale of the items. Times are tough, and I would not have a problem with a prison setting up its own eBay personality to sell those items in order to make money that could be reinvested in the prison. I want to give prisons the greatest possible flexibility.

Amendment 6 would remove the words after “force” and insert the words

“and which is held by the prison on that date”

into clause 1(6)(a). As the clause stands, the power to dispose of property

“may be exercised in relation to the relevant article found before the day on which this section comes into force if the article remains unclaimed at the end of six months beginning with that day.”

I think that that is too prescriptive. I would like to give the prisons the widest possible scope, and they should not have to wait six months to dispose of an item. If they think that the prisoner should not have an item, and that it ought to be disposed of, why should we insist that they wait six months to see whether it is claimed?

I want to speed through these matters a bit more now, and I will briefly mention amendments 7 and 8. Amendment 7 would remove clause 1(6)(b), which states that the power to dispose of items

“may not otherwise be exercised in relation to an article found before that day.”

Amendment 8 would remove parts of clause 1(7) and insert the words

“covered by this Act if it had been in force at the time the items were seized.”

All three amendments are trying to make the same point. As the Bill stands, it would cover only items seized after its introduction, or a limited type of item that had not been claimed six months after its introduction. That is very weak. It should be dealing with all confiscated items, not just those that have not been claimed. Whether or not they have been claimed is wholly irrelevant. It is beyond me to understand why on earth an unauthorised or illegal item should be given back to someone just because they claim it is theirs.

There are many examples of the appropriateness and correct application of this approach. A pertinent one relates to sentencing. Someone might commit a crime before a change to the sentencing guidelines, but if they fall to be sentenced after the change, they will be sentenced as per the new guideline. I am suggesting a similar approach in the Bill. It would be ironic if someone had an item confiscated after committing a crime and it was handed back because it had been confiscated before the change took place, and if that same person could go to court and be sentenced on the basis of the sentencing guidelines that pertained on the day of sentence, rather than on the day of the offence. That would be a topsy-turvy situation.

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I want to ensure that any property that could contain vital evidence in the form of recordings or images could not inadvertently be disposed of too rapidly, without having been checked to ensure that it did not contain anything that could implicate someone in a crime. Such articles should be available for use in any internal disciplinary hearings or as evidence in a court case.

[Mr Nuttall]

I have been gently supportive of my hon. Friend’s amendments so far, but I have my reservations about this one. I fear that it might be used to ensure that items of property were never disposed of. There is always a chance that a device could contain evidence, even if it was not known about at the time of confiscation, and that, in six months or a year’s time, that evidence could turn out to be relevant to a crime.

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I am, however, grateful to my hon. Friend the Member for Shipley for his keen interest in the Bill. As he says, we have a shared goal. It is unacceptable that, at present, prison officers and governors are powerless to destroy items that prisoners are not supposed to have anyway.

[Mr Nuttall]

I should say at the outset that I know that the amendments presented so ably by my hon. Friend the Member for Shipley (Philip Davies) are not in any sense wrecking amendments designed to destroy the central thrust of the Bill. Indeed, they are very much in the spirit of the Bill, and are intended to strengthen it so that it achieves the purpose that we all want it to achieve.

Let me begin with amendment 2. As we have heard, there are many reasons why a prisoner may be away from the confines of the prison. He may, for example, be visiting a hospital, or he may have been released to attend a funeral. The question has been raised of how many times a prisoner will leave the prison in the course of a year. Given that there are 85,000 people in prison, and given all the reasons why a prisoner might want to leave the prison, the number of such occasions must amount to many hundreds of thousands.

[Philip Davies]

As my hon. Friend knows, it is not just a question of 85,000 prisoners. Far more than 85,000 people go to prison over the course of a year. There are about 80,000 people in prison at any one time, but obviously many more thousands go to prison during the year, and all of them may at some point leave the prison for the day.

[Mr Nuttall]

My hon. Friend is right. There are probably 85,000 prisoners at any given moment in time, but over the course of a calendar year the number will be vastly greater. When, back in 2007, my hon. Friend the Member for Christchurch (Mr Chope) asked how drugs had got into Dorchester prison, the right hon. Member for Delyn (Mr Hanson), who was a Minister at the time, replied that in a single year there had been

“Under the current system, 405,259 releases on temporary licence”.—[Official Report, 19 June 2007; Vol. 461, c. 1253.]

There is, therefore, some evidence to support my estimate that there are some hundreds of thousands of such releases each year.

It now seems to me that the point about the definition of “prisoner escort vehicle”—I wondered whether my hon. Friend the Member for Pudsey (Stuart Andrew) would mention this—is covered by clause 1(5), which defines it as

“a vehicle used for taking a prisoner to or from a prison or other place while in custody”.

I think, on reflection, that I am satisfied that the provision is drawn widely enough to defeat any silver-tongued lawyer who might suggest that a vehicle was not, in fact, a prisoner escort vehicle. I therefore intend to support amendment 2.

I think that there is some merit in amendment 3. Those who are closest to the prisoners and to what is going on in the prison environment should be allowed to determine whether something is used or may be used for unauthorised purposes, within the terms of the Bill, instead of having to refer the matter to the governor or director of the prison. I appreciate that some may not share that view, however.

[Sir Peter Bottomley]

I used to feel the same way as my hon. Friend, but I think that if a prison officer decides that an unauthorised item should be destroyed or disposed of, a senior manager of the prison ought to agree with that. The issue is not about whether an article is unauthorised or being used in a way that is unauthorised; it is about the disposal of the article afterwards. I am now convinced that the right approach is for a prison officer to be able to confiscate an article and for the governor or director of the prison to decide about disposal.

[Mr Nuttall]

My hon. Friend makes a valuable point, and he has persuaded me on it. I would be interested to know, however, whether the Minister has had any feedback on amendment 3, perhaps from the Prison Officers Association.

Amendment 4 is a sensible proposal, and I have nothing further to say on it this morning.

Amendment 5 is of considerable interest. I asked in an intervention whether my hon. Friend the Member for Shipley had deliberately not put “registered” before “charity”. Whether or not that is the case, it is the right decision, as it overcomes any bureaucratic problems that might arise over whether a local charitable organisation had gone through the registration process. Such an organisation may be in the process of registration—indeed, that is often the case. The amendment would serve to avoid long-winded discussions as to whether individuals who are doing good work should be prevented from benefiting from confiscated property. Most of this property is mobile phones and there is a considerable market in recycling them, so they have a great value, especially as nowadays most of them are, in fact, small mobile computers.

Amendment 9 addresses the question of the data on these phones. The right solution is for the data to be routinely taken off the phones and stored on a central hard disc, logged with the prisoner’s name and number. Therefore, if at any point in the future it turns out that some of that information is pertinent to an alleged offence, it can be used in evidence.

[Philip Davies]

I agree with my hon. Friend, but does he agree that there would be a different perspective on this question if the Minister were unable to give the assurance that these data will be routinely checked and stored? Does my hon. Friend agree that that would give some merit to my amendment that the Minister currently does not see?

[Mr Nuttall]

That is right. Our concern is that property that was disposed of might later turn out to have contained evidence that was central to securing a conviction. I am sure my hon. Friend the Member for Pudsey, the promoter of the Bill, would not want that information to be unavailable. There is a great deal of merit in having routine cleansing of phones, but only after having saved all the data contained on them on a central hard disc for possible future use.

We know from the Minister’s comments on Second Reading that 41,000 phones are currently stored, so I accept that storing these data would be a major task. We were told on Second Reading that the cost of storing the phones is £20,000 a year, and they are seized at the rate of 800 a month. This is a major problem, therefore, and there would be a great deal of merit in the Minister’s exploring the possibility of a standardised system whereby information is taken off phones and stored for future reference.

[Sir Peter Bottomley]

About 13 years ago I became rather conscious of what was going on in prisons. I had taken part in a campaign to help overturn the convictions and to free Ruth Wyner and John Brock, who had been working at the Wintercomfort project in Cambridge, helping the homeless. I remember helping to lead a procession across London that had the slogan, “Help the homeless: jail the social workers?” An account of these events is given in Alexander Masters’ book, “Stuart: a life lived backwards”. With the knowledge of the police, these two people were running a project for homeless people, some of whom were addicted to illegal street drugs. Another police officer found that some people were exchanging drugs on or outside the premises, and for some ludicrous reason the people running the project were prosecuted and jailed.

In jail, Ruth Wyner was asked to sign a confidentiality agreement so as to give counselling to other prisoners who were getting illegal street drugs in prison. I asked how many times each year someone in prison was detected as having used illegal street drugs. The answer was about 20,000, which is really quite high. I then asked somebody who had worked for me but who went on to work in the Prison Service how the drugs got into prison. The answer was, “Sometimes they’re thrown over the wall.”

I also refer Members to the first book Lord Archer wrote about his prison experience. It described how new prisoners, most of whom were inexperienced at crime—and at life—were sent to a high-security prison for a period, and if they were not on drugs before they went, they were often on drugs by the time they had finished their three weeks there, because the senior, experienced prisoners would arrange for the new prisoner to get their family to pay the experienced person’s family or associates outside the prison. That demonstrates why the mobile phones issue is important and why detecting unauthorised possession of mobile phones matters.

We ought to support the Bill. The question of how to deal with the amendments will be determined by the Minister’s responses to the points made by my hon. Friends the Members for Shipley (Philip Davies) and for Bury North (Mr Nuttall). I am grateful to the Bill’s promoter, my hon. Friend the Member for Pudsey (Stuart Andrew), and I wish him success with it.

We must address the underlying issue, which is that 800 mobile phones are detected a month, and many more surely go undetected. A technical fix ought to be possible, so that any use of a mobile phone in a prison is linked to the identification number of a phone, and if any phone is used that is not part of the approved list, investigations should take place and people should find out where it is. The technology cannot be that difficult. Perhaps that is how it is done anyway, and that is why the detection rate is as high as it is.

I am a great believer in helping prisoners to be rehabilitated, but if there is a currency in mobile phones in a prison, let alone in controlled or illegal drugs, we need to stop it. The Bill is about the particular issue of how one can dispose of or destroy items that are not illegal to possess but that are unauthorised in prisons. Its limited purpose is one that this House should support, and I do support it.

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[The Parliamentary Under-Secretary of State for Justice (Mrs Helen Grant)]

Amendment 2 proposes an addition to proposed new section 42A(1) of the Prison Act 1952, as inserted by clause 1 of the Bill, which would extend the power of a governor or director to places outside a prison or prison escort vehicle, such as a hospital, court cells or a police station where a prisoner might be detained in custody. In some circumstances, the prisoner, although they are in custody, will not be in the custody of the governor. It would therefore not be appropriate to extend the powers in such a way. I think that deals with the question raised by my hon. Friend the Member for Worthing West (Sir Peter Bottomley) about extending the power beyond the prisoner escort vehicle.

It is already possible to remove any unauthorised items found on a prisoner while they are in custody outside the prison. Such items would be returned to the prison with the prisoner and dealt with as the prisoner re-entered the prison. The prison governor or directors could authorise the prisoner to keep the item with him or her in prison or disposal could be required. If appropriate, the governor could confiscate it and use the general power of destruction already provided in the Bill. I hope that my hon. Friend the Member for Shipley (Philip Davies) will therefore withdraw his amendment.

Amendment 3 is not necessary. Prison officers will have the power to act in the way envisaged by the amendment through the delegated authority of the prison governor. It is therefore not necessary specifically to include them in that power. In addition, “prison officer” is the term used to describe officers in a public sector prison and would not cover prison custody officers, who carry out the same function in private sector prisons. I therefore hope that my hon. Friend will not press that amendment.

The purpose of amendment 4 would appear to be to create a catch-all power to cover all property used for any unauthorised or unlawful purpose. Although I can understand my hon. Friend’s reasons for tabling the amendment, I do not believe that it is necessary. Any unauthorised item could be confiscated and destroyed under the power created in subsection (1)(a) or (b) of proposed new section 42A. Furthermore, an item used for unlawful or unauthorised purposes that would clearly prejudice the security or operation of the prison or cause harm to prisoners or others would be dealt with by proposed new subsection 3(c) or (b). I therefore hope that my hon. Friend will agree with me that the amendment is not necessary.

On amendment 5, I applaud my hon. Friend’s desire to see that confiscated property is put to good use and to ensure that charities might benefit wherever possible. The Bill already enables that. Proposed new section 42A enables a governor or director to

“destroy or otherwise dispose of”

confiscated property. My hon. Friend’s amendment is not necessary, because the phrase “otherwise dispose of” would allow the item to be recycled or donated to charity. I can assure him that the guidance given to governors and directors in the relevant Prison Service instruction will make it clear that those options are available.

The sale of property, mentioned by my hon. Friend the Member for Worthing West, would involve a financial gain for the Prison Service and has therefore been specified in the Bill. Other methods of disposal, such as recycling, do not need express provision as they are covered, as I have explained, by the expression “otherwise dispose of”.

Amendments 6,7 and 8 are the most significant and have the potential to undermine the progress of the Bill. The Bill as drafted contains a limited retrospective power and although retrospective legislation is generally not a good idea, that limited power has a specific purpose with which I am sure the House will agree. It is intended to enable the Prison Service to deal with the large number of mobile telephones held in storage. The House will be aware from previous debates on the Bill that more than 40,000 telephones are held at a cost of £20,000 a year and it is appropriate that we should take a power to deal with them. It is, after all, a criminal offence both to possess a mobile telephone in prison and to bring one into a prison. Governors and directors have options for other property that is not illegal per se. They can authorise the item, place it in central storage, require a prisoner to send it out of the prison or otherwise dispose of it. There is therefore no need for a general retrospective power to deal with such property and I hope that my hon. Friend will not press those amendments.

Amendment 9 is intended to address the ability of the Prison Service to destroy or dispose of mobile phones found in prisons. It is unlawful to possess or use a mobile phone in prison. The amendment would therefore prevent the Prison Service from disposing of them, as it is likely that every unauthorised mobile phone found in prison would contain or constitute evidence of a criminal offence. My hon. Friend asked about the checking of mobile phones and I understand that they are interrogated for evidence of criminality on confiscation. I hope that in the circumstances he will therefore agree not to press the amendment.

[Mr Nuttall]

The Minister has told the House that the mobile phones are interrogated. Will she briefly expand on what happens to any information that is found after they have been interrogated?

[Mrs Grant]

I will have to write to my hon. Friend with the precise detail on that.

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[Mr Nuttall]

I rise merely to thank my hon. Friend the Member for Pudsey (Stuart Andrew) for steering the Bill to Third Reading. The Bill is sponsored by Conservative Members only and does not have cross-party sponsorship, but it has nevertheless received cross-party support. On behalf of my constituents, I thank my hon. Friend for his work, and wish the Bill a speedy passage in the other place.