Prisons (Property) Bill

Peter Bottomley Excerpts

Friday 30th November 2012 Commons Chamber

[Philip Davies]

This is a rare situation for me. We have come to the second private Member’s Bill of the day, both of which I wholeheartedly support—an unusual occurrence for a Friday. I find myself in a slightly uncomfortable situation in that regard. I have tabled the amendments not to bury the Bill, but to try to improve it. It is already an excellent Bill, but it could be further strengthened. I hope to persuade my hon. Friend the Member for Pudsey (Stuart Andrew), whom I congratulate on getting the Bill to this stage, that my amendments would enhance his Bill, and I will give it my best shot.

I begin by congratulating you, Mr Speaker, on not selecting my first amendment. It is what is known, I believe, as a consequential amendment, and it suggested leaving out the word “or” and inserting a comma instead. The House would probably not have wanted to have had a Division on such a lead amendment, so I congratulate you on not indulging the House with it. The other amendments are well worthy of at least consideration.

On the disposal of unauthorised or unattributable property, clause 1 states:

“an article found inside the prison or in a prisoner escort vehicle”.

Amendment 2 suggests an addition to include:

“any other location that the prisoner attends while in custody,”

Obviously, the Bill covers the prison and prison escort vehicles—that is perfectly reasonable. I am concerned, however, about all the other places prisoners might find themselves while in custody. It would be bizarre if something was not covered because of a technicality—because the prisoner did not happen to be in prison or a prisoner escort vehicle at the time.

[Sir Peter Bottomley (Worthing West) (Con)]

I understand my hon. Friend’s point. When I attended a hospital out-patients department on the Isle of Wight, half the people there appeared to be prisoners under escort. That is an example of precisely what he describes

[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.

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[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?

[Sir Peter Bottomley]

No doubt the Minister will in time sort this issue out for us, but proposed new section 42A(1) of the 1952 Act says:

“The governor or director…may destroy or otherwise dispose of”,

so clearly there are ways of disposing with such property other than destruction, otherwise that phrase would not have been included. However, we are still left with the question, which my hon. Friend is raising, why selling is then specified. If something is not sold, the only other thing that can be done is to give it away—or perhaps leave it somewhere for someone else to steal, although if one does not want it back, I suppose that is not stealing. We await with interest to hear what my hon. Friend the Minister has to say.

[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.

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[Stuart Andrew (Pudsey) (Con)]

I welcome the interest of my hon. Friend and constituency neighbour the Member for Shipley (Philip Davies). I have no doubt that he wants to do all he can to make sure that the Bill achieves what we all want it to achieve.

It was said on Second Reading and in Committee that this was a simple Bill—led by a simple person, I suppose—and I hope that we are not going to over-complicate it. As I say, I want the Bill to do what we set out to achieve through it. Let me go through all the points that my hon. Friend made, as I hope to persuade him that many of the legitimate issues he raised are already covered in the Bill.

Beginning with amendment 2, the power already exists for these items to be confiscated wherever they may be. If a prisoner is in a hospital or at another venue as my hon. Friend described, they will, on return to prison, be searched, and if an item is found, it will be confiscated. Equally, if it is found on them in the hospital, it can be confiscated and taken back to the prison where it will be dealt with through the processes that we seek to introduce through the Bill.

[Sir Peter Bottomley]

On that point, proposed new subsection (1)(a) refers to

“an article found in the possession of a prisoner who is not authorised to have it in his or her possession”,

while (1)(b) refers to

“an article found inside the prison or in a prisoner escort vehicle”.

My hon. Friend may be able to assist us now, or perhaps the Minister later, to clarify why the prisoner escort vehicles provisions are sufficient to deal with the point that the amendment addresses.

[Stuart Andrew]

My hon. Friend is challenging me, so I am going to defer that one to the Minister. I thank him for his interest, but I am going to move on to amendment 3.

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[Stuart Andrew]

The issue here is that the item can be taken from prisoners, but that the confiscation process would happen back at the prison. I believe that the provisions cover this point clearly.

[Sir Peter Bottomley]

rose—

[Stuart Andrew]

My hon. Friend wants to intervene, so perhaps he can help me.

[Sir Peter Bottomley]

I think we are beginning to get closer to the issue, but the Minister will no doubt be able to sort us all out. As I pointed out before, (1)(a) talks about

“an article… in the possession of a prisoner who is not authorised to have it”.

Wherever the prisoner has such an article, it can be removed from them. On the other hand, (1)(b) refers to prison-controlled areas

“inside the prison or in a prisoner escort vehicle”,

so everything else is presumably not controlled by the prison. If the prisoner happened to be somewhere else and either leaves property there himself or it is left there for him, the escort officers may not be able to show that the item is the prisoner’s or was left for him, so they may not be able to take it. If people are trying to pass items to prisoners in a non-prison-controlled area, it should be possible for someone to say, “This item is suspicious” and something should then happen to it. My guess is that either the Minister or my hon. Friend will tell us that the item will go to the police who will judge it on its merits, and they will probably have powers of disposal.

[Stuart Andrew]

I think that is probably correct, but we need absolute clarification from the Minister. I see the point, but as I understand it, the processes involved are clearly dealt with in the Bill and in the guidance notes for governors that will follow implementation. Let us wait for the Minister to clarify.

[Sir Peter Bottomley]

On that point, we may be able to help the Minister. Amendment 9 refers to items that

“might contain or constitute evidence of a criminal offence.”

With a criminal offence carried out outside the prison or outside the prison vehicle, the article may need to be taken back by the prison, and the police may need to liaise with it. There is therefore going to be an issue about what happens in practice. It may not be essential to the Bill or to the amendment, but if we are trying to deter crime, knowing how often people in prison or under prison control obtain illegal or unauthorised substances—mobile phones or street drugs—we need to ensure that any potential evidence is taken and linked to the prisoner. I add a last statistical point. On how many occasions when a prison has illegal drugs is it recorded as a crime? If it is detected by the prison warders, it probably is not, or if it is detected by the police, it probably is. There is a degree of uncertainty regarding liaison between the two services.

[Stuart Andrew]

We are talking about unauthorised items here. Illegal items would be referred to the police, and there would then need to be a criminal investigation. I am grateful for my hon. Friend’s points, and I feel sure that the Minister has taken note of them and will answer them in due course.

On amendment 3, I support what my hon. Friend the Member for Shipley said. The people at the front line are often those who know the circumstances best. It is not true to say that we do not trust them. Prison officers currently have the ability and the right to confiscate items under powers given to them by the prison governor. They have the delegated authority of the governor to confiscate the item in the first place, and it is then up to the governor to decide what to do with it.

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[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.

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[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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[Philip Davies]

I am grateful to everybody who has contributed to the debate on the amendments, and to the Minister and my hon. Friend the Member for Pudsey (Stuart Andrew) for addressing the points that I raised.

Let me take the amendments in a rather jumbled-up order. Amendment 3 refers to “prison officer” as well as “prison”. The Minister’s explanation that the definition of “prison officer” would not include prison custody officer did not entirely convince me, because that suggests that my amendment needs to be expanded rather than left out. However, I took the point made by my hon. Friend the Member for Pudsey—my hon. Friend the Member for Worthing West (Sir Peter Bottomley) made the same point—that nothing stops a prison officer confiscating an item, and that it may be in everybody’s best interests, not least the prison officer’s, if the authority to dispose of property was taken by a senior manager or the prison governor. Like my hon. Friend the Member for Worthing West, I was much persuaded by the point made by my hon. Friend the Member for Pudsey. I am grateful to him for that.

I was reassured to a certain extent by the explanation that amendment 4 is already covered. I hope that the Minister is right that

“prejudicing the security or operation of the prison”

has exactly the same effect as,

“any unauthorised or unlawful purpose.”

I am not entirely convinced that the amendment is covered by the Bill, but I am happy to leave it and see who turns out to be right.

I am not convinced by the Minister’s explanation about amendment 5 and “otherwise dispose of”. My hon. Friend the Member for Pudsey said that he thought that the amendment might be too prescriptive, but that does not explain why the Bill includes “selling it” in the “references to disposing of”. The Minister claims that the phrase “otherwise dispose of” covers

“recycling… or donating it to any charity”,

in the amendment. Again, that does not explain the paragraph,

“references to disposing of an article include selling it”,

if the Minister claims that everything is covered by “otherwise dispose of”.

[Sir Peter Bottomley]

We have picked up that if the Prison Service was going to make a profit or a gain, that would need a separate provision. The item could be sold in other ways—for example, the money could be given to a charity, so that the Prison Service did not gain, but that is not being proposed. Therefore, at the risk of sounding like someone who is after a job, I would say that the Minister explained the matter quite well.

[Philip Davies]

My hon. Friend is obviously more easily persuaded than me, but I know that, like me, he does not do anything to try to get a job. Nobody could ever accuse him of that, and I hope that he would never accuse me of it. However, I was not persuaded because I am not sure what “otherwise dispose of” means. I am concerned that “dispose of” implies getting rid of something, perhaps by throwing it in a bin.

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[Sir Peter Bottomley]

It is a pleasure to follow my hon. Friend the Member for Shipley (Philip Davies). I have gone into the private Members’ Bills ballot on 36 occasions and I have not come up once. I suppose that that is roughly right, given that there are some 650 MPs. That might be wrong, but my maths has deserted me this afternoon.

I join in the congratulations to my hon. Friend the Member for Pudsey (Stuart Andrew). It seems a bit odd that we have had to wait this long to put right the consequences of a decision by an administrative judge, but that is life. It might be worth it if the judiciary got to understand the consequences of some of the decisions that they make. Obviously, they have to judge the issues on their merits, but the consequences of their decisions ought to be one of the merits. We are trying to put right a situation that has caused a great deal of confusion.

The way in which the Bill has been prepared and presented has been admirable. If it has the blessing of my hon. Friend the Member for Shipley, it must be very good indeed.