Prisons (Property) Bill

Stuart Andrew Excerpts

Friday 30th November 2012 Commons Chamber

[Philip Davies]

My hon. Friend kindly says that he has been “gently supportive” of my amendments. He could have fooled me! I have heard nothing but criticism from him so far, so I would hate to think what he would have said if he had disagreed with me. I ought to be grateful that he is gently supportive. He makes a good point; we might well want to avoid enabling the scenario that he mentions. I am sure that he would acknowledge, however, that it would be a travesty if an item that contained evidence of a serious offence could no longer be used by the authorities because it had been disposed of. The prison authorities could find themselves in an embarrassing situation if the perpetrators of a serious offence had been recorded on a device, and that device had been tossed away without giving any thought to the possibility of it containing such evidence. We could all end up looking rather silly if that were to happen.

Amendment 9 would protect the data on phones, for example. If the measure looked likely to result in a significant reduction in the number of items being disposed of, it might be sufficient to say that an expert should remove all the data from the device and assess it. The device could then be disposed of.

I do not really know what happens at the moment. This is an important issue for this particular amendment. I do not know—perhaps the Minister can explain it—whether or not all illegal phones or unauthorised phones that are confiscated in prisons or any other recording devices or whatever are scoured for evidence or intelligence whenever they are confiscated. I do not know whether that is a natural practice that happens in prisons. I absolutely hope that that is what happens when these things are confiscated. I hope that we do not have some sort of ridiculous human rights law stopping prison officers and prison governors from looking into these things to see whether what they have confiscated contains any evidence. If it does already happen as a matter of course, I would be the first to concede that the amendment might not be necessary. If that is not happening, however, and if the Government are not giving out that guidance to prisons or other laws are preventing that from happening, I would like to think that my amendment is an essential safeguard to stop any particular offence going undetected.

In a nutshell, those are my amendments. I congratulate my hon. Friend the Member for Pudsey on his Bill, which I warmly support. I hope that my amendments will not be seen as trying to ruin the Bill; I hope my hon. Friend sees that I am trying to strengthen it. His heart is absolutely in the right place with this Bill. I simply think that my amendments would improve it further.

[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.

[Philip Davies]

Before my hon. Friend moves on, I take the point he made about my amendment 2, which was a helpful clarification. I am grateful to my hon. Friend the Member for Worthing West (Sir Peter Bottomley) for pressing him on it, but the problem is that the provisions talk about articles

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

or

“found in the possession of a prisoner”,

but if something is found in the possession of the prisoner in another place such as a hospital, I wonder whether that could be a potential loophole.

[Stuart Andrew]

As I understand it, prisoners would not be able to take such an item back into prison with them—that is the whole point. If an item is found in the prisoner’s possession in the hospital and the prisoner tries to take it back to prison with them, it will be confiscated as an unauthorised item. It would therefore be subjected to disposal and destruction.

[Philip Davies]

I am sorry to press my hon. Friend, but there are two remaining loopholes. The first is that some of these things are not detected by the detection units when the prisoner goes back into prison. Some of these things like BOSS—body orifice security scanner—chairs do not always work, so we cannot always be confident that these things will be found. Furthermore, if in a hospital, a prisoner could take something out and leave it for somebody else to collect outside the prison.

[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—

--- Later in debate ---

[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.

--- Later in debate ---

[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.

[Stuart Andrew]

The Minister clearly said that there would be a Prison Service instruction that would give guidance so that “otherwise dispose of” will include recycling or donating items to charity. That will be covered in the Prison Service instruction.

[Philip Davies]

I knew that if I gave my hon. Friend enough of a chance, he would come up trumps and persuade me of the merits of his case. I will take my hon. Friend’s word that the substance of the amendment will be covered in guidance to prisons to encourage them to follow that route, despite the only reference to a definition of disposal being “selling it”. He has eventually reassured me; my hon. Friend the Member for Worthing West was reassured much earlier.

I take the point that the Minister and my hon. Friend the Member for Pudsey made about amendments 6, 7 and 8. As I said at the start, I do not intend to do anything to cause the Bill any problems. If my hon. Friends say that those amendments would introduce too much controversy into the Bill, and that they may not be supported elsewhere, thus putting the measure at risk, I accept that they are not worth pursuing.

On amendment 9, I am greatly reassured by the Minister’s comment that things are interrogated for evidence when they are confiscated. That is very helpful. I noted that she said that she would write to my hon. Friend the Member for Bury North (Mr Nuttall) with more detail about that matter. We thank her for that.

However, we come back to amendment 2. We had an interesting and extensive debate about what was covered. The Minister tried to make it clear that everything that amendment 2 tries to do is already covered by the Bill. I am afraid that I am not persuaded that that is the case. The Bill therefore contains a loophole that should be avoided. Even if the Minister turned out to be right and I turned out to be wrong—it certainly would not be the first time and I am sure that it will not be the last—I do not understand what harm the amendment would do. It tries to ensure that everything is covered. If the Minister thinks that it is unnecessary, it nevertheless does nothing to detract from the measure. In the worst case scenario, it would be a belt-and-braces approach. I do not want some of the loopholes that my hon. Friends the Members for Bury North and for Worthing West discussed to be left in the Bill.

My hon. Friend the Member for Pudsey has done a brilliant job in getting the measure this far. Today is probably our only chance to get it right. I cannot see anybody revisiting it ever—or at least not for many years—and I am anxious that we do not leave any loopholes in it. I therefore want to press the amendment 2 to a Division.

Question put, That the amendment be made.

--- Later in debate ---

[Stuart Andrew]

I beg to move, That the Bill be now read the Third time.

The process of getting the Bill through Parliament has been a steep learning curve for me, but a most enjoyable one too. I am grateful for the cross-party support that we have had. There have been many contributions during the Bill’s passage through the House which have helped us to scrutinise the detail of it. Although it is a small and, as I said earlier, simple Bill, it is important that we get it right.

Prior to 2009 unauthorised items which may have presented a threat to prison security, such as mobile phones, were seized from prisoners and destroyed, in reliance on powers contained in the Prison Rules 1999. However, in 2009 the administrative court held that governors have no authority to do that. We are now in the bizarre situation where unauthorised property can be taken from prisoners but cannot be destroyed. Instead, it must be stored until they leave prison and can claim it. Some 40,000 mobile phones are now being stored by the Prison Service, at great cost—£20,000 is spent every year to store items that prisoners know they should never have had in the first place—which is terrible.

It really is odd that we have had to introduce this Bill, but it is absolutely necessary that we do so, because the effects that possession of a mobile phone in prison can have are quite stark, as I mentioned on Second Reading. It is important to refer to a number of cases in which mobile phones have been used either to perpetrate further crime or to intimidate victims and witnesses. On Second Reading I mentioned the case of Andrew Wanogho, who was shot dead on a London street in the early hours of April 2006. Delphon Nicholas seemed to have a cast-iron alibi because he was on remand in Belmarsh prison at the time, but that did not prevent him from co-ordinating the murder by using a smuggled mobile phone.

In 2007 Ryan Lloyd was jailed for life for the murder of Liam Smith, who was shot dead outside a prison in Liverpool in 2006. Lloyd had used a contraband mobile phone to call an accomplice. In 2009 a gang leader, Nigel Ramsey, was jailed for organising from his cell in Humberside the murder of a 17-year-old. The fact is that prisoners can use mobile phones not only for social purposes but to organise crime.

Mobile phones can be used to sell drugs. When Jordan Moore found himself behind bars, he soon realised that he had a captive market of addicts and quickly worked out a way to take control and cash in on them. He used his mobile phone to operate a business from his prison cell by arranging for drugs to be thrown over the prison walls, which we heard about a moment ago.

Violent criminals, including murderers, have also been using Facebook to taunt victims and their families from behind bars. Other prisoners have maintained their criminal empires via social networking sites. Inmates are of course banned from accessing the internet, but they manage to get online by using mobile phones that have been smuggled into prisons. As my hon. Friend the Member for Bury North (Mr Nuttall) rightly pointed out, mobile phones are so much more that just phones these days; they are mini computers. Prisoners can access all the social networks out there and communicate to the wider world. In fact, in the past two years nearly 350 prisoners have been discovered posting messages on Facebook. It is likely that dozens of others are using the site without the authorities being aware of it. Javed Khan, the chief executive of Victim Support, has said:

“Offenders using Facebook from prison make a mockery of the idea that they are being punished. It adds insult to injury when they use it to intimidate victims and witnesses. Victim Support would like to see this more tightly controlled and monitored.”

I hope that the Bill will at least make that organisation happy.

Ministry of Justice figures released after a freedom of information request show that 143 Facebook profiles were removed between July 2009 and June 2010 and another 199 were removed between July 2010 and June last year. They were all closed by Facebook following investigations by prison officials. The bizarre thing is that these mobile phones will simply be taken off prisoners and stored, when frankly they should be destroyed. Statistics compiled by the National Offender Management Service show that between February 2009 and January 2010 the authorities found over 4,000 mobiles and 4,300 SIM cards in prison in England and Wales.

As well as using mobile phones themselves, many inmates charge others to use them at extortionate rates. It is a lucrative business.

[Graham Jones (Hyndburn) (Lab)]

The hon. Gentleman suggests that the phones should be destroyed. Does he think that they should be interrogated before they are destroyed, and is that addressed in his Bill?

[Stuart Andrew]

I am grateful to the hon. Gentleman for that intervention. Funnily enough, we have just had this discussion. The Minister has confirmed the position, and I believe that she is going to write to my hon. Friend the Member for Bury North about the processes involved. Yes, the phones are checked for any information that might lead to any criminal convictions or be of any other use.

[Graham Jones]

Will that action be retrospective on the 40,000 phones that are currently held or will it apply only to those that are confiscated once the Bill is passed?

[Stuart Andrew]

I am pretty sure that that is absolutely correct, but I am looking to my hon. Friend the Minister for clarification; perhaps she can give a more definitive answer.

Most mobile phones now have cameras, and these have been used to take photographs of prison officers so that those on the outside can target and intimidate them. That is clearly unacceptable in this day and age.

The taunting of victims from prison is also unacceptable. We all heard about the tragedy of the killing of 16-year-old Ben Kinsella. One of his killers, Jade Braithwaite, used Facebook to taunt the victim’s family from behind bars, boasting that he was “down but not out.” For his profile picture he mocked up a T-shirt emblazoned with his face and the slogan “Free Jade Braithwaite”. It is horrible for the families to be taunted in this way.

I have had a personal experience of this through a dear constituent of mine, Lorraine Fraser. Four of the people who killed her 16-year-old son are in prison, but one of them escaped to Pakistan and has been taunting her via Facebook. I know the impact that that has. It is bad enough that she knows he is on the run in Pakistan, with the torment that that causes her, so imagine what it must be like to know that the person is in prison and able to taunt the family in this way. It is simply unacceptable.

There have been ridiculous examples where people boast about the criminal activities that they are taking part in while in prison. David Wibberley was an inmate who used his mobile phone, which had been illegally smuggled in, to boast on Facebook of smoking cannabis in prison. He posted updates on the social networking site from a prison in Cumbria, where he is serving time for the possession of the class B drug. In the posts that could easily be seen online, he boasted about “chilling” in his “pad”, “skinning up” cannabis joints and being stoned or, as he called it, “whiffed out me ’ed”. Such examples are totally unacceptable. That is why it is imperative that we do everything that we can to help those who work in the prison system.

Prison officers often report that the inmates know their rights. When officers confiscate unauthorised items, there is nothing more frustrating than the prisoners demanding that they be stored for them until their release. That is why the Prison Officers Association was very keen to support the Bill. I have received a message of support from it. I have also received messages of support from support groups for victims and their families, because they find it unbelievable that this anomaly exists. That is why I believe that the Bill is crucial.

I am grateful to Members from all parts of the House for the support that they have given the Bill so far.