Duggan v Governor of Full Sutton Prison and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Chadwick,Keene LJ,Peter Gibson L.J.
Judgment Date10 February 2004
Neutral Citation[2004] EWCA Civ 78
Date10 February 2004
Docket NumberCase No: 2003/1541

[2004] EWCA Civ 78

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

CHANCERY DIVISION

(MR JUSTICE HART)

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice Peter Gibson

Lord Justice Chadwickc and

Lord Justice Keene

Case No: 2003/1541

John William Duggan
Appellant
and
The Governor HMP Full Sutton
The Home Office
Respondent

Mr Stephen Smith QC and Mr Leigh Sagar (instructed by A.S.Law Solicitors of 24 Rodney Street, Liverpool, L1 2QT) for the appellant

Mr Jonathan Crow and Mr Steven Kovats (instructed by Treasury Solicitor, Queen Anne's Chambers, 28 Broadway, London SW1H 9JS) for the respondent

Lord Justice Chadwick
1

This is an appeal from an order made on 28 February 2003 by Mr Justice Hart in proceedings brought by the appellant, a prisoner now serving a life sentence at Her Majesty's Prison, Full Sutton, against the governor of that prison and the Secretary of State for the Home Department, as the minister responsible for the Prison Service. The question raised by the appeal is whether the effect of rule 43(3) of the Prison Rules 1999 (SI 1999/728) is to impose a trust on monies paid into an account under the control of the governor pursuant to that rule.

2

It is accepted on behalf of the appellant that, in the present case, the monies which would be subject to a trust (if any) imposed by that rule are not large. Nevertheless, given the size of the prison population, the aggregate amount of what may be described as "prisoners' monies" – including monies within rule 43(3) – is substantial. The amount of prisoners' monies shown in the audited financial accounts of the Prison Service for the year ended 31 March 2003 is £4.7 million or thereabouts (2002 —£5.1m). The proceedings have been brought on the basis that the point is of importance to prisoners generally; and it was on that basis that permission to appeal was granted by this Court (Lord Justice Carnwath) on 22 July 2003.

The regulatory framework

3

Section 47(1) of the Prisons Act 1952 empowers the Secretary of State to make rules for the regulation and management of prisons and for the treatment and control of persons required to be detained therein. The Prison Rules 1999 are made under that power. Rule 43(3) is in these terms:

"43(3) Any cash which a prisoner has at a prison shall be paid into an account under the control of the governor and the prisoner shall be credited with the amount in the books of the prison."

4

Rule 43(3) of the 1999 Rules must be read in conjunction with rules 43(2), (4) and(5), which provide for a different treatment of property other than cash:

"43(2) Anything, other than cash, which a prisoner has at a prison and which he is not allowed to retain for his own use shall be taken into the governor's custody. An inventory of a prisoner's property shall be kept, and he shall be required to sign it, after having a proper opportunity to see that it is correct.

(3) …

(4) Any article belonging to a prisoner which remains unclaimed for a period of more than 3 years after he leaves prison, or dies, may be sold or otherwise disposed of; and the net proceeds of any sale shall be paid to the National Association for the Care and Resettlement of Offenders, for its general purposes.

(5) The governor may confiscate any unauthorised article found in the possession of a prisoner after his reception into prison, or concealed or deposited anywhere within a prison."

5

It is pertinent, also, to have in mind the provisions of rule 44, which govern the treatment of money and articles sent to a prisoner through the post:

"44(1) Any money or other article (other than a letter or other communication) sent to a convicted prisoner through the post office shall be dealt with in accordance with this rule, and the prisoner shall be informed of the manner in which it is dealt with.

(2) Any cash shall, at the discretion of the governor, be –

(a) dealt with in accordance with rule 43(3);

(b) returned to the sender; or

(c) in a case where the sender's name and address are not known, paid to the National Association for the Care and Resettlement of Offenders, for its general purposes:

Provided that in relation to a prisoner committed to prison in default of payment of any sum of money, the prisoner shall be informed of the receipt of the cash and, unless he objects to its being so applied, it shall be applied in or towards the satisfaction of the amount due from him.

(3) Any security for money shall, at the discretion of the governor, be –

(a) delivered to the prisoner or placed with his property at the prison;

(b) returned to the sender; or

(c) encashed and the cash dealt with in accordance with paragraph (2).

(4) Any other article to which this rule applies shall, at the discretion of the governor, be –

(a) delivered to the prisoner or placed with his property at the prison;

(b) returned to the sender; or

(c) in a case where the sender's name and address are not known or the article is of such a nature that it would be unreasonable to return it, sold or otherwise disposed of, and the net proceeds of any sale applied in accordance with paragraph (2)."

6

The Prison Rules 1999 revoked and re-enacted the Prison Rules 1964 ( SI 1964/388) as amended over the years from 1968 to 1998. Rules 43(3) and 44(2), (3) and (4) of the 1999 Rules were formerly enacted as the corresponding paragraphs of rules 41 and 42 in the 1964 Rules.

Restriction of access to cash

7

It is common ground that the power conferred by the 1952 Act enabled the Secretary of State to make rules in relation to the property which prisoners may have with them in prison; and, in particular, in relation to the retention of, and the restriction of access to, cash. The need for control in relation to the use of cash and the means to make payments is explained by Mrs Irena Scaife, the finance manager employed at HMP Full Sutton, in a witness statement dated 29 January 2003:

"11. Inmates are not allowed to have cash or the means to make payments to other inmates. There is a concern that if inmates could make payments to each [other] these payments might be used for illicit purposes, bullying or other behaviour not in accord with the good order and discipline of the prison."

8

Subject to that restriction, however, a prisoner retains control over monies which are not brought into the prison. In particular, a prisoner can open, maintain and operate a bank or building society account; although there are checks in place which are intended to ensure that payments are not being made from that account for purposes which, in the context of the good order and discipline of the prison, are judged unacceptable. The position is described by Mrs Scaife in the following paragraphs of her witness statement:

"3. There is no requirement for approval by a Governor 1 or any staff at HMP Full Sutton for an inmate to open a bank or building society account.

7. Further, inmates who have a bank or building society account when they arrive at HMP Full Sutton, or who open one while at HMP Full Sutton, are allowed to manage their accounts.

10. An inmate is not allowed to keep a cheque book or savings account passbook in his own possession in his cell. Such documents are kept in the cashier's office….

12. An inmate may send a cheque from the prison drawn on a bank or building society account…."

9

Although a prisoner is not allowed to have cash in his possession while in prison there are arrangements which enable him to earn money from work and to spend that money (and, within limits, other money) within the prison itself. Arrangements which enable prisoners to spend the money which they earn are required by rule 8(1) of the 1999 Rules:

"There shall be established at every prison systems of privileges approved by the Secretary of State and appropriate to the classes of prisoners there, which shall include arrangements under which money earned by prisoners in prison may be spent by them within the prison".

The position at HMP Full Sutton is described by Mrs Scaife at paragraph 8 of her witness statement:

"8. Limits are imposed on how much money an inmate should have at his disposal for his own private daily use and enjoyment at any one time. An inmate is allowed to have for such use only the money he receives for work carried out at the prison each week – his earnings – and also an additional sum from monies he has in his private cash account …"

The private cash account

10

The "private cash account" to which Mrs Scaife refers in that paragraph is an account maintained in the prisoner's name in the books of the prison. The purpose of the private cash account is to hold to his credit cash which has been brought into the prison but which is not freely available for the prisoner's own use. Again, the position is described by Mrs Scaife in her witness statement:

"9. Money not available for an inmate's private use and enjoyment are held … in his private cash account and cannot be used for his own private daily use and enjoyment. There is no limit to the amount which an inmate can have to his credit in a private cash account."

11

Subject to checks intended to ensure that such payments are not made for purposes which, in the context of the good order and discipline of the prison, are unacceptable, a prisoner may use the amount standing to the credit of his private cash account to make payments outside the prison – including the transfer of that amount to a bank or building society account in his name. As Mrs Scaife explains:

"12. … An inmate may also ask for a cheque to be sent by the prison drawn on his credit …, exceptionally, in his private cash account. Monies paid from an...

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