R (Coleman) v Governor of Wayland Prison and Another
| Jurisdiction | England & Wales |
| Judge | MRS JUSTICE DOBBS |
| Judgment Date | 03 April 2009 |
| Neutral Citation | [2009] EWHC 1005 (Admin) |
| Docket Number | CO/5876/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 03 April 2009 |
[2009] EWHC 1005 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Before: MRS JUSTICE DOBBS
CO/5876/2007
Mr S Grodzinski appeared on behalf of the Claimant
Miss C Weir appeared on behalf of the Defendants
Introduction
This is an application for judicial review, permission being granted by Mr Justice Silber on 6th June 2008.
The issue in these proceedings concerns the extent, if any, of the Defendants' powers to destroy prisoners' property. It turns on the proper construction of rule 43 of the Prison Rules 1999 and paragraph 3 of Prison Service Order 1250 concerning prisoners' property.
When these proceedings were first issued, the Claimant challenged:
i) The decision of the Governor of HMP Wayland (“the Governor”) and/or the Secretary of State (on a date unknown) to destroy the Claimant's mobile phone.
ii) The decision of the Assistant Prisons and Probation Ombudsman (“the Assistant Ombudsman”) dated 16 April 2007, in which she accepted that the destruction of the Claimant's phone had been unlawful, but in which she nonetheless declined to recommend any compensation.
iii) The subsequent policy Notice promulgated by the Governor dated 27 April 2007 (“the first Notice”), stating that in all cases where mobile phones were discovered in the prison, they would be confiscated and then destroyed.
There have been changes since proceedings were issued, namely:
i) Following representations from the Claimant's solicitors, Bhatt Murphy, the Ombudsman himself issued a further report dated 27 July 2007, in which he upheld his Assistant's conclusions —both that the destruction of the phone had been unlawful, and that no compensation was appropriate.
ii) The First Notice of 27 April 2007 (referred to above) was withdrawn and replaced by a policy Notice of 27 July 2007 (“the Second Notice”), which no longer states that mobile phones found in the prison should be destroyed.
iii) The Secretary of State has filed Summary and then Detailed Grounds of Defence asserting, contrary to the conclusions of the Assistant Ombudsman and the Ombudsman, and despite the withdrawal of the Governor's first Notice and its replacement by the Second Notice that does not purport to authorise destruction of mobile phones, that the destruction of the Claimant's mobile phone was lawful.
The Claimant now seeks to challenge the Secretary of State's conclusion that the destruction of the mobile telephone was lawful and his refusal to pay compensation for its value.
The Claimant no longer pursues his challenge of the Ombudsman's decision, on the basis that this Court's determination of the primary issue will bind the Ombudsman for future investigations in any event.
The Claimant submits that his remaining challenge raises an important issue about the lawfulness of the destruction of prisoners' property. The nub of the submission is that without specific statutory authority, the Secretary of State has no power to destroy prisoners' property; and that PSO 1250, which is simply a policy promulgated by the Secretary of State, did not provide such authority.
Background
The Claimant was at all material times to this claim, serving a determinate sentence of imprisonment at HMP Wayland, although he has now been released, having served half of his sentence.
Following a visit from his girlfriend on 20 January 2006, the Claimant was found to have a mobile phone in his cell at HMP Wayland. The phone was confiscated and passed to the police to investigate whether criminal charges should be brought against the Claimant or his girlfriend for illicitly bringing the phone into the prison during a visit.
No criminal charges were brought by the police. However, the Claimant faced disciplinary action within the prison: he was charged and found guilty of committing a breach of Rule 51(12) of the Prison Rules 1999, which provides that it is an offence against discipline for a prisoner to have in his possession “any unauthorised article”.
This was not the first time that the Claimant had been found in possession of a mobile phone in prison. Between 2005 and 2006 he had been found in possession of four mobile phones on three separate occasions. He had also been found in possession of a mobile phone at this previous prison. Even after the mobile phone which is the subject of this claim was confiscated in April 2006, he was again found in possession of a mobile phone on 4th November 2006.
The Claimant took no issue with the phone having been confiscated from him so that he could not use it in prison. He did consider however that there was no reason why it could not be kept with his stored property, to be returned to him when he was released from prison.
The Claimant was subsequently informed that the phone had been destroyed. Mr I'Anson, the Head of Security at HMP Wayland, initially informed the Prisons Ombudsman that the police had destroyed the phone although in his witness statement he now believes the phone was destroyed at the prison during a training exercise.
The Claimant made a number of complaints to the prison authorities in May and June 2006. In short, the position of the Defendants was that the confiscation of the phone had been lawful.
The Claimant sought legal advice. As a result he made a complaint to the Ombudsman. The Assistant Ombudsman gave her decision in a letter of 16 April 2007. In summary, the Assistant Ombudsman:
i) Accepted that the phone had been destroyed by the prison authorities.
ii) Accepted that security considerations did not provide justification for destruction of the phone.
iii) Accepted that the phone should have been returned to its owner and that “there was no reason why it should be destroyed”.
iv) Nonetheless concluded that no compensation should be offered on the basis that “the Ombudsman does not consider it would be a good use of tax-payers' money to recommend that the prison reimburses you (or your girlfriend) for an item that was deliberately and illegally smuggled into the prison”.
The closing paragraph of the Ombudsman's letter stated:
“In light of my observations on the destruction of the phone, I am copying this to the Governor for him to consider whether he should issue instructions to staff on this matter.”
A few days later, and in response to the Assistant Ombudsman's report, the Governor promulgated the First Notice on mobile phone possession. The essence of the policy was that whenever a mobile phone was discovered, it would be destroyed.
Following representations by Bhatt Murphy, the Claimant's solicitor, the Ombudsman subsequently issued a further report dated 27 July 2007, upholding the conclusions of the Assistant Ombudsman, but expressing his concern that the Governor had issued the policy just referred to and his “fear that this action may be based on a misunderstanding of the Assistant Ombudsman's letter”.
The Ombudsman recommended that the Governor issue a new policy under which no confiscated property should be destroyed except in accordance with the instructions in PSO 1250.
As it turned out, shortly before that report was finalised, the Governor had issued the Second Notice, under which confiscated property would (assuming its ownership was established) either be stored as part of the prisoner's stored property (to be returned on his release), or posted out to its legitimate owner.
Following the withdrawal of the First Notice by the Governor, and its replacement by the Second Notice, the Claimant's solicitor sought to ascertain whether the Secretary of State intended to issue any central guidance so as to ensure that other prison governors did not promulgate policies along the lines of the First Notice. By a letter from the Treasury Solicitor of 24 October 2007, the Secretary of State confirmed that no such guidance was to be issued.
The statutory provisions
The Prison Act 1952
Section 8A of the Prison Act 1952 (“the 1952 Act”) as in force on the relevant dates, provided:
“8A Powers of search by authorised employees
(1) An authorised employee at a prison shall have the power to search any prisoner for the purpose of ascertaining whether he has any unauthorised property on his person.
(2) An authorised employee searching a prisoner by virtue of this section —
(a) shall not be entitled to require a prisoner to remove any of his clothing other than an outer coat, jacket, headgear, gloves and footwear;
(b) may use reasonable force where necessary; and
(c) may seize and detain any unauthorised property found on the prisoner in the course of the search.
(3) In this section “authorised employee” means an employee working at the prison, of a description for the time being authorised by the governor to exercise the powers conferred by this section.
(4) The governor of a prison shall take such steps as he considers appropriate to notify to prisoners the descriptions of persons who are for the time being authorised to exercise the powers conferred by this section.
(5) In this section “unauthorised property”, in relation to a prisoner, means property which the prisoner is not authorised by prison rules or by the governor to have in his possession or, as the case may be, in his possession in a particular part of the prison.”
Section 35(1) of the Prison Act 1952 (“the Act”) provides, inter alia, that every prison, and all real and personal property belonging to a prison, shall be vested in the...
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R (Coleman) v Governor, HMP Wayland and Others [Administrative Court]
...EWHC 1005 (Admin)" class="content__heading content__heading--depth1"> Neutral Citation: [2009] EWHC 1005 (Admin) Court and Reference: Administrative Court, CO/5876/2007 Judge: Dobbs J R (Coleman) and Governor, HMP Wayland and Others Appearances: S Grodzinski (instructed by Bhatt Murphy) for......