The Prisons (Interference with Wireless Telegraphy) Act 2018 was one of three Acts to receive the Royal Assent on the 20th December 2018, although it will only come into force when the Home Secretary makes the relevant regulations. It began life as part of the Prisons and Courts Bill which fell at the last election. Subsequently, its provisions were carved out of that Bill and re-presented as a Private Members Bill which was supported by the government and the opposition.
Superficially, the Act appears quite innocuous. Essentially, it amends the Prisons (Interference with Wireless Telegraphy) Act 2012 to permit mobile phone service or network providers to interfere with phone signals in prisons. It consists of a mere two sections and a schedule. One of the sections inserts four new subsections in the 2012 Act, while the other is a technical section. The schedule effects consequential amendments to three sections of the 2012 Act. However, there may be more to the Act than meets the eye.
Problems caused by the use of illicit mobile phones in prison are increasing rapidly as mobile phone technology and design are advancing. Devices no larger than a finger can be easily smuggled into prisons and have the capacity to provide the full range of electronic (including internet) communications. They are being used by some prisoners to carry on criminal activities outside prison, including: terrorism and organised crime operations, contract murders, the importation of large quantities of drugs and firearms into the UK, the intimidation of witnesses and the continued harassment of victims of abusive behaviour as well as the importation of drugs and contraband into prison. They also, of course, present a potent threat to the internal safety and security of prisons, especially by facilitating the importation of drugs and contraband, and generally helping to drive the illicit economy within prison.
Attempts to combat the use of illicit mobile phones (and related devices) in prison through the conventional criminal law have proved unsuccessful. It is an offence to possess or use a mobile phone in prison without authorisation, but prosecutions are rare due largely to the inherent difficulties in finding such easily concealed devices and in identifying the user. In recent years the focus of control has switched to disconnecting phones and blocking mobile phone signals in prisons.
Regulations issued under the Serious Crime Act 2015, for example, empower a County Court in England and Wales, or Sheriff’s Court in Scotland to issue an order compelling a mobile network operator to disconnect mobile phone handsets and SIM cards that are found to be operative without authorisation in a prison. Blocking a mobile phone signal to the prison is not so straightforward, as it is generally a criminal offence to interfere deliberately with wireless telegraphy. However, the Prisons (Interference with Wireless Telegraphy) Act 2012 stipulates that such action is lawful for the purpose of detecting or preventing the use of illegal mobile phones in prison when it is carried out by someone “authorised” under that Act. Moreover, the Home Secretary is empowered to authorise the governor of a prison to interfere deliberately with wireless telegraphy in his or her prison to prevent the use of illicit phones or to detect or investigate their use. In other words, an authorised governor can deploy equipment to detect and block mobile phone signals and to investigate the use of illicit phones in the prison.
The Prisons (Interference with Wireless Telegraphy) Act 2018 amends the 2012 Act essentially to harness the “unrivalled technical knowledge, specialised expertise and ingenuity” of the phone companies and network operators to block the use of unauthorised mobile phones (including any device capable of transmitting or receiving images, sounds or information by electronic communication) in prison. Accordingly, it empowers the Home Secretary to authorise a Public Communications Provider (PCP) to interfere with wireless telegraphy to prevent the use of a mobile phone (or similar device), or to detect or investigate the use of such an item, in a prison in England and Wales. The authorisation can relate to a single prison or type of prison or to prisons/institutions generally.
A PCP so authorised will be in the same position as an authorised governor of the prison or prisons concerned. It will have the power to deploy and activate equipment to block phone signals to the prison, detect mobile phone usage within the prison and record traffic data information on such phone usage. Pursuant to directions from the Home Secretary, information obtained from the interference must be provided to the governor of the prison concerned or to the Home Secretary. These directions will also specify the frequency or occasions on which the information must be provided. Separate direction issued to the governor concerned will specify information that must be provided to the independent communications regulator OFCOM. The information supplied to a governor pursuant to these provisions must be destroyed after three months, unless the governor orders its further retention on specified grounds. The Home Secretary must also give directions to an authorised PCP on the circumstances in which the use of interference equipment must be modified or stopped. A PCP must comply with any such directions.
Although an authorised PCP will be acting independently in interfering with wireless telegraphy in a prison, it would appear that the governor of the prison concerned will retain ultimate responsibility for the interference in his or her institution. Accordingly, it is the governor in question who will be responsible for providing the information on interference activities to the independent regulatory body OFCOM.
It is easy to appreciate the importance of effective measures to prevent the use of illicit mobile phones in prison. That, however, should not divert attention from some of the less obvious implications of the deceptively innocuous provisions of the 2018 Act. One of the most striking features is the extent to which it facilitates the delegation of criminal law enforcement power and responsibility to private commercial operators. A PCP is in the business of providing phone and internet connectivity and services for profit. Policing how, and the extent to which, phones are being used in prisons is not part of its core business. Nevertheless, when authorised under the Act by the Home Secretary, a PCP acquires that broad responsibility in respect of the prison or prisons in question.
Significantly, this responsibility is different in kind from recording and retaining the traffic data of mainstream customers’ phone usage; data which the operator may be required to make available to the police etc on request on a case by case basis for the investigation of crime. A PCP authorised under the 2018 Act will be expected to act on its own initiative in blocking phone signals and in detecting and collecting data on the use of illicit phones. In other words, it will be functioning effectively as a police or criminal law enforcement authority in combating the use of illicit phones in prison. Authorising and depending on a private commercial operator to discharge such functions, which are not its core business, raise serious questions about oversight, accountability and transparency in respect of these public law enforcement powers and responsibilities.
The Act is strangely silent on key matters such as when the Home Secretary can authorise a PCP to conduct interference in respect of a prison. Equally, it is not clear what, if any, criteria will inform a decision by an authorised PCP to initiate (and cease) an interference. It is stated that the Home Secretary must specify descriptions of information that should be provided from an interference, as well as the frequency and occasions on which the information is to be provided. However, those directions relate to the gathering of traffic data in the course of an interference, rather than to the act of interference itself. It is possible, of course, that further guidance will be provided in communications between the Home Secretary and PCPs. Nevertheless, the fact that they are not addressed more fully in the Act leaves much scope for the exercise of these sensitive powers to be shaped behind the scenes by the executive and the private commercial operators.
Also notable is the silence on the financial costs associated with the conduct of an interference and how they will be defrayed. It would be surprising if the PCPs are left to pick up the tab, which could be substantial. Nevertheless, the Act does not address this matter.
Although the Act presents the appearance of prison governors remaining central to the interference regime, there can be little doubt that the centre of gravity will move decisively to the PCPs as it is they who will have the expertise and technology to block signals and detect illicit usage. Indeed, in one respect, the attempt to retain the centrality of prison governors may prove counterproductive to effective oversight and accountability. Although a PCP conducts interference on its own initiative and independently of the prison governor concerned, it must provide information about the interference to the prison governor rather than directly to OFCOM. This weakens the efficacy of the independent check as OFCOM will be dealing with a third party, rather than the body conducting the interference and gathering the information.
Another key issue concerns management of the threat to phone and internet users outside the prison walls. Some prisons are adjacent to occupied residential, retail etc premises. Cardiff prison, for example, is adjacent to university student accommodation. Where the phone/internet signal in a prison is blocked pursuant to telegraphy interference by the PCP concerned, there is a risk of collateral interference for customers in the vicinity of the prison. This can also entail the phone/internet traffic data of people outside the prison being recorded and retained, with a consequent risk of disclosure to third parties.
Once again, the Act is not very forthcoming on how this issue will be addressed. It merely states that the Home Secretary must give directions to the PCP specifying the circumstances in which the use of the interference equipment must be modified or discontinued. In particular, these must include directions aimed at ensuring that a disproportionate interference outside a prison is avoided. Clearly, this accepts a degree of outside interference so long as it is not disproportionate; a concept that is not further defined. Other potential, but indirect, protections are a requirement to satisfy the Home Secretary that any equipment to be used is fit for purpose, and the limited oversight and monitoring role provided by OFCOM.
An issue that should not be forgotten is that illicit mobile phones in prison will not necessarily be used for criminal or disruptive purposes. Many studies have shown that retaining strong ties with family and loved ones on the outside can have a major beneficial effect on a prisoner’s mental health and recidivism risk. For some prisoners, illicit mobile phones are the only practicable means of maintaining that vital contact. Typically, the landline phones notionally available to them for this purpose in the prison are prohibitively expensive and frequently inaccessible due to prison conditions. It is critically important, therefore, that interference with mobile phone signals in a prison are complemented with measures to ensure that prisoners have effective means to maintain phone contact with family on the outside. Commendably, the government is currently investing in the installation of phones in prisoners’ cells. If implemented fully and quickly, that should prove a valuable safeguard, especially for vulnerable prisoners.
Quite separately, it is worth noting that while the Act extends to England, Wales and Scotland, it does not actually apply in Scotland even though the 2012 Act applies in Scotland. It is not entirely clear why this is so. In the course of the parliamentary debates, it was indicated that the matter had been discussed with the Scottish government which declined to expand the 2012 Act along the lines of the 2018 Act. Unfortunately, the debates do not shed any further light on the reasons why the Scottish government was not in favour of the measures.
Finally, it remains to be seen whether the Home Secretary will deploy the 2018 Act as the primary means for combating illicit mobile phone usage in prisons. An argument can be made for confining it to local situations in which resort to the expertise of PCPs is unavoidable to deal with a temporary and severe threat where action by the prison governor has proved inadequate. The reality is that the latter is producing dividends. In 2016, for example, almost 20,000 mobile phone and SIM cards were confiscated in prisons in England and Wales (an average of 54 per day). In the course of the parliamentary debates on the 2018 Bill (as it then was), these figures were presented as a crisis which necessitated resort to the unusual use of PCPs in frontline law enforcement activity. They could just as readily have been presented as proof that the established measures were already working effectively.