The interception of communications in prisons and security measures
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- THE INTERCEPTION OF COMMUNICATIONS IN PRISONS AND SECURITY MEASURES
- PSI 04/2016 Issue Date Effective Date
- Issued on the authority of NOMS Agency Management Board For action by
- *If this box is marked, then in this document the term Governor also applies to Directors of Contracted Prisons
- Provide a summary of the policy aim and the reason for its development / revision
- a summary of the policy aim and the reason for its development revision Contact
- Replaces the following documents which are hereby cancelled
- Introduces amendments to the following documents
- Section Subject Applies to
- Digby Griffith Director of National Operational Services, NOMS 2.
- 5. Voluntary Disclosure
CONTENTS
1. Executive Summary Background 1.1 The Regulation of Investigatory Powers Act (RIPA) provides the framework for named public authorities to use specific covert investigative techniques in order to lawfully interfere with the right of privacy of others where this is necessary and proportionate to do so for a purpose cited in the Act. 1.2 Section 4 (4) of RIPA makes lawful the interception of communications in a prison provided such interception is undertaken in accordance with the Prison Rules. 1.3 The Prison Rules were amended after the introduction of the Human Rights Act (1998) to more clearly define the restrictions that were necessary and proportionate to control prisoner communications with others outside of prison. The relevant rules are set out in Annex A but primarily are Rules 34, 35, 35 A-D, and 39. 1.4 The PIN phone system is a private telecommunications system and the interception of telephone calls takes place before the call connects to the public network. In order to provide adequate facilities to allow prisoners to maintain contact with others by telephone, the PIN phone system was configured to record all telephone calls that prisoners make except those to legal advisers, MPs, or other approved confidential numbers as listed in Section 2 of this PSI. It is not however necessary to monitor the majority of these calls. 1.5 Local policies or practice concerning the interception of communications must be consistent with this PSI. This PSI supersedes all references to interception and communications monitoring in other PSIs. 1.6 The Interception of Communications Commissioner’s Office (IOCCO) provides oversight of interception arrangements in prisons and conduct inspections of prisons. A copy of the IOCCO Information Pack is provided prior to a prison receiving an inspection from IOCCO. 1.7 This PSI applies to all prisons and young offender institutions (YOI). Desired outcomes 1.8 All prisons will have interception of communications arrangements that comply with the law. 1.9 All prisons will use monitoring of communications as a key part of the intelligence and evidence gathering strategy in prisons. The proactive use of monitoring can be used to identify and manage known or developing threats in an establishment or region, and can also be used to meet wider obligations to protect the public, prevent or detect crime, and other community safety issues. Security, Offender Management, and Police will adopt a joined up approach to ensure that threats are identified and managed, and that critical intelligence is shared and actioned. 1.10 Prisoners must be actively encouraged to maintain outside contacts to sustain positive relationships with family and friends. The Rules also enable the prisoner to have access to justice through legally privileged correspondence and communication with legal advisers and other support organisations with whom they may communicate confidentially. 1.11 Access to communications helps prisoners prepare for release. There are however risks and therefore communications must be managed in the interests of national security, to prevent, detect, investigate, or prosecute crime, in the interests of public safety, to secure or maintain prison security or good order and discipline in prisons; for the protection of health and morals; for the protection of the rights and freedoms of any person. These grounds are cited in Prison Rule 35A(4). Application 1.12 Governors, Authorising Officers for the interception of communications, and Security Managers must read the whole instruction and alter local policy and procedures. 1.13 PIN clerks and any staff engaged in the process for monitoring communications must read the whole instruction and understand the implications for their role. Similarly, staff in reception and induction, will also need to read the whole instruction so that they provide prisoners with accurate information and use the new Communications Compact. Mandatory actions 1.14 Governors of all establishments and Directors of privately managed establishments must ensure that:
Resource Impact 1.15 This PSI consolidates existing policy in the NSF (Section 4.4) and operational practice, allied to the IOCCO inspection regime. There is a need for local policies to be amended to take into account revised monitoring requirements, and to ensure that local policy and practice is consistent with this PSI. This includes the need to revise local instructions on other processes which refer to prisoner communications including E List, Category A, Public Protection. 1.16 It is believed that where governors have previously invested in staffing the interception function and using interception proactively, there will be no additional resource. The benchmark of public sector prisons included the requirement for prison management to ensure that interception is undertaken where it is necessary and proportionate to do so. (Signed)
Director of National Operational Services, NOMS 2. Operational Instructions
The interception of communications and the retention and dissemination of material obtained is lawful 2.1 Section 4 (4) of the Regulation of Investigatory Powers Act (RIPA) provides that the interception of communications in prisons is lawful where the conduct is allowed for by the Prison Rules. The Prison Rules allow for necessary and proportionate restrictions to be placed on a prisoner’s communications with those outside prison. The Rules go on to require interception to be necessary and proportionate to what is sought to be achieved, for material and product from the interception to be retained for no more than three months from the day of interception (unless a decision is taken to authorise beyond this point), and for disclosure of material to Police or others to be in accordance with the Rules. This PSI provides governors with the authority to delegate their responsibility to intercept communications in accordance with Prison Rule 81. Such delegation must be confirmed in writing. Local Policy Document: Informing Prisoners 2.2 All establishments must have a local policy document that confirms prisoners’ communications with others is necessarily restricted but proportionate to the threat posed by the prisoner. Certain prisoners will be subject to communications monitoring on account of their offence or prison category, others will not. The approach at the establishment to random monitoring must also be set out in the local policy document. Prisoners must be informed that communications are subject to interception. The notices in Annex B, under the sub heading “Revised Telephone Notices” must be displayed adjacent to PIN Phones. Grounds to Monitor 2.3 The interception of communications must be proportionate to the threat posed by prisoners through the use of approved methods of communication. The grounds listed in the Prison Rules to justify restrictions on, and the interception of, communications are as follows: (a) the interests of national security; (b) the prevention, detection, investigation or prosecution of crime; (c) the interests of public safety; (d) securing or maintaining prison security or good order and discipline in prison; (e) the protection of health or morals; or (f) the protection of the rights and freedoms of any person. 2.4 There may be more than one ground to justify monitoring and it would be appropriate for all relevant grounds to be listed provided there is a case for each one. If only one ground applies, use that one. Prison Rule 35A(3) provides that an officer or authorised employee may terminate a telephone call where it is necessary and proportionate to do so. Prison Rule 35A(5) confirms that “the protection of the rights and freedoms of any person” cannot be used to justify interception using a telecommunications system. 2.5 Prison Rule 35C provides the lawful basis for disclosure of intercepted material and retention of intercepted material for no more than three months without a specific authority allowing retention beyond this period is covered by Prison Rule 35D. 2.6 Telephone calls to approved legal or confidential numbers must not be recorded. Illicit Enclosures in Mail 2.7 Governors may authorise the opening of all mail between prisoners and social contacts to check for illicit enclosures. This is because letters are an obvious and regularly used vehicle to supply drugs, SIM cards, or other unauthorised material into an establishment. Letters opened for these purposes will not be read unless for example an illicit enclosure is found. 2.8 Governors may also require all outgoing letters from prisoners to social contacts to be handed in to staff unsealed so that they can be checked for illicit enclosures. Again, letters received unsealed for these purposes will not be read unless for example an illicit enclosure is found. PIN Phone System 2.9 All telephone calls made by a prisoner to his/her personal contacts on the PIN phone system are recorded and may be monitored. Contacts must first be enabled on to the PIN phone system by prison staff by adding information provided by the prisoner to the PIN phone system. Information about confidential communications starts at paragraph 2.21 below. 2.10 A prisoner is not allowed to freely communicate with others outside the prison. This is in order to protect the public and prevent further criminality. Prisoners must be informed about these restrictions as soon as possible on reception and during induction and made fully aware of the communication rules and policies. 2.11 All prisoners must sign a copy of the communications compact (See Annex B) to show that this has been understood. There is an initial compact to be issued during induction and a more detailed version that must be explained to the prisoner within a month of reception. Both compacts must be signed and retained and copies provided to the prisoner. Risk Management 2.12 Many prisoners will not need all of their communications to be monitored over a long period of time. The key is to identify through initial risk assessment and ongoing development of intelligence, those who are identified as being, or potentially, being engaged in criminality or otherwise a threat to control within the establishment or a threat to the public at a particular time. Interception must be necessary and proportionate and for a ground listed in Prison Rule 35A(4). 2.13 This PSI (and the Official-Sensitive version) provide the means to achieve a dynamic, intelligence-led approach to prisoner interception. Authorising Officer (AO) for interception 2.14 Rule 35A(2) empowers the governor to intercept prisoners’ communications. Prison Rule 81 permits the governor to devolve powers and duties to another officer of that prison. It is recommended that the authority to authorise the interception of prisoner communications is undertaken by the functional Head of Security, and/or the functional Head of Offender Management (for offence related monitoring) and at least one identified deputy to cover periods of absence. In privately managed prisons, the Director has responsibility for the interception of communications and therefore may delegate powers to the functional head of security and offender management similar to public sector prisons. Any delegation must be confirmed in writing. 2.15 The AO and deputy must be at least Band 7/head of function (security or offender management/public protection). The governor must issue a written note confirming to whom intercept powers have been delegated. The role as AO for interception must be set out in their SPDR or similar annual appraisal form of relevant staff and include responsibility for managing the interception arrangements locally, providing assurance to the governor and DDC (or equivalent) that this is in accordance with the law. 2.16 The AO may authorise an application for interception in circumstances set out below from paragraph 2.75. 2.17 The AO need only consider an application to monitor communications where it is for intelligence purposes or after a period of monitoring allowed for by policy. 2.18 Where an authorisation is required, the AO must ensure that there are regular reviews and cancellations are completed as soon as monitoring can no longer be justified. All paperwork must be kept on the prisoner’s security file/Mercury file or public protection paperwork. It must be clear where records are being held so that they can be easily retrieved, updated, and used as necessary. Monitoring Staff 2.19 It is essential that all staff engaged in monitoring have a clear understanding of their role, how to submit intelligence, and the specific risks posed by each prisoner subject to communications monitoring. 2.20 There must be an auditable record of every call monitored or letter read. Confidential Communications 2.21 Confidential material is often thought of as protecting the right of a prisoner and his/her legal adviser to confer freely. That is not strictly accurate. Prisoners have a right to communicate confidentially with all of the organisations or bodies below. Therefore telephone and written communications between prisoners and these organisations must be treated as confidential and not intercepted.
2.23 Communications between a prisoner and any of the organisations listed above can only be monitored where the communications are believed to being used to further criminality. Before any monitoring can take place, there must be prior authorisation by the CEO of NOMS or another Director of NOMS in accordance with Prison Rule 35A 2A. This authorisation must be in place before any calls are intercepted. Such a request will be extremely rare and would be justifiable only in the most exceptional circumstances. An application form can be requested from the Central Intelligence and Authorities Bureau (CIAB). 2.24 The interception and monitoring of legal or confidential communications must not be confused with governor powers to open Rule 39/confidential mail set out in PSI 49/2011 in order to check the bona fides of what has been marked as Rule 39 legal correspondence or in which it is believed that the letter may contain an illicit enclosure. Those powers under PSI 49/2011 are specifically relevant to particular pieces of correspondence rather than the obtaining of intelligence or evidence over a longer period. Annex D of PSI 49/2011 provides more detailed guidance. Application Process for Legal or Confidential Communications 2.25 It is good practice for advice to be taken from the CIAB in NOMS HQ before an application is made. If the applicant decides to proceed, the application must be supported by the governing governor before being BRENT faxed to CIAB. The CIAB will assess the application and present it to the appropriate AO for consideration. 2.26 If the application is authorised, a copy of the authorisation will be BRENT faxed to the applicant. He/She will then be authorised to move the telephone number from the confidential side to the open side of the PIN phone system. If the application is rejected, this will also be confirmed by telephone and in writing. The central record in the CIAB will also be updated. Communications Compact 2.27 There are now two communications compacts and prisoners must be issued with both. The first one – for use on induction – reflects that for newly received prisoners, it is enough to be given key messages set out simply. Prisoners must sign the compact and provide an initial list of contacts using the form at Annex B. A member of staff must discuss the more detailed compact with the prisoner within one month of reception. Again, this must be signed and stored on the prisoner’s file and the process does not have to be repeated on transfer to another prison establishment. Prisoners have the right to update and amend their contact lists and changes must be reflected promptly on a prisoners PIN phone account. Prisoners are allowed up to 20 personal contact numbers and 15 legal and confidential contacts at any one time but governors may consider applications for additional contact numbers where exceptional circumstances apply. Governors may wish to advise prisoners by way of a local information notice of the usual time frame for dealing with amendments to contact lists and the process for informing prisoners when PIN phone accounts have been set up or amended. Checking Legal Numbers 2.28 All numbers must be checked. The type of check undertaken will depend on the type of number provided but the requirement is that staff must check all telephone numbers provided by prisoners as legal or confidential numbers. If the number provided is a switchboard number, staff may either phone the number or check it on the Law Society Database (www.lawsociety.org), which also names all solicitors within a firm of solicitors. Where prisoners give the mobile telephone number of a solicitor, a member of staff must call the number but only during office hours and ask the recipient of the call for the number of their office. Similarly, if a Barrister and or Barristers’ chambers is listed, checks can be made through the Bar Council website (www.barcouncil.org) or by telephoning numbers provided, again during office hours only. As above, if only a mobile telephone is provided, ask the recipient of the call for the landline number of his/her chambers. 2.29 Establishments may wish to retain a simple Excel spreadsheet listing local firms of solicitors to reduce some of the administrative burden for staff and to share this across other establishments in the same region or geographical area, including contracted out prisons and check against the database of bogus solicitors held in Security Group. At the very least this spreadsheet must have the name of the firm, address, switchboard number, solicitor’s name, mobile phone number, and landline extension. 2.30 Where any suspicion emerges from these verification checks, an IR must be submitted and the Governor may direct further action. The IR must be flagged for the attention of the CIAB. Checking MP and other confidential Numbers 2.31 Staff involved in the management of the PIN phone system must check the global list on the PIN phone system regularly to know what organisations are on the global list. Staff in Security Group are responsible for maintaining the list and notifying prisons of updates. Where a prisoner makes an application for a new confidential number to be added, staff must submit the request to the CIAB for further consideration. 2.32 Prisoners must provide the office and/or constituency telephone number of their MP using the form at Annex B. On receipt of this, staff must check the Parliament website (www.parliament.uk) or carry out some other internet search to verify the numbers provided. Where there are no issues, the number must be enabled on the prisoner’s PIN phone account as a confidential number. For checks on Assembly Member of Wales, staff can use www.assembly.wales and for MEPs use www.europarl.europa.eu. Checking Personal Contact Numbers 2.33 Although prisoners are required to submit their personal contact numbers on the Request form at Annex B, in many cases, there is no need to check the number before it is added to the system. Staff must however check the personal contact numbers of the following:
2.34 The contact numbers of other prisoners need only be checked where intelligence or other information suggests that such checks are necessary on a case by case basis or more generally. This may be with regard to a specific prisoner, group of prisoners, or class of prisoners. Victims 2.35 Where details of current victims are known - and in some cases details of past victims are known and up to date - staff must take proactive steps to block telephone and written communications from the prisoner to that victim. The measures put in place are however only as good as the information we receive and therefore staff will need to work with probation colleagues to verify information. 2.36 Before prisoners who have been subject to monitoring are removed from it, an important part of the risk assessment is to set out in the risk assessment whether further measures need to be put in place to prevent contact with victims or those for whom a non-molestation or restraining order applies. Dealing with Unwanted Contact 2.37 If a member of the public requests to receive no contact from a prisoner, the prisoner must be prevented from making contact. Further, where current or past offending indicates non-contact with individuals, the prisoner must be barred from making contact, whether by telephone or written correspondence. If the person or authority with primary responsibility for the care of a child (i.e. a person under 18 years of age) requests that calls/letters from a prisoner to that child be stopped, the prisoner must not be allowed to contact the child. 2.38 Prisoners must not be allowed to contact victims unless there is prior agreement to do so and it has been concluded that it is in the interests of the victim to have such contact. The Governor will make this decision based on information provided by probation service providers and police. Particular care must also be taken in cases where a victim does not want contact but others at the same address/telephone number (e.g. parents) do. 2.39 The Governor may also order a young person in his or her custody not to communicate with a particular person if the Governor considers that such calls are not in the young person’s best interests; in exercising this discretion the Governor must take account of any views expressed by the young person’s parent or guardian and Youth Offending Team (YOT) worker. 2.40 Persons not wishing to be contacted by a prisoner can make a request in writing, by email or verbally. If a request is made verbally, a record must be maintained of this request. In all cases, an audit trail must be kept and this must form part of the risk assessment on whether monitoring is required. The number of the person who does not want to be contacted must be barred from the list of numbers available to the prisoner. Similarly, post room staff must be informed of the person’s address to stop contact by letters. A full list of such non contact addresses must be maintained in the post room to assist in identifying attempts to breach communications restrictions. 2.41 Consideration is to be made to bar the telephone number from all accounts in an establishment in case other prisoners are pressured into adding a number to their PIN account on behalf of another prisoner. Similarly any letters going to the address may be read if there are concerns that the prisoner is using others to send threatening, inappropriate, or unauthorised messages 2.42 Where unwanted contact is somehow made prison management must refer the matter to the police. Unintentional interception and acquisition of legal communications 2.43 Where there has been unintentional interception and acquisition of legal or other confidential communications, prison management must investigate. The Official-Sensitve PSI on interception sets out the detail. Monitoring Communications 2.44 For interception of communications to have any real value as intelligence or evidence, staff engaged in monitoring telephone and/or written communications must be briefed regularly about security threats and intelligence objectives/gaps. 2.45 Any information that may be of interest to prison management or other Agencies must be submitted to the security department on an Intelligence Report (IR). The content of Telephone Calls 2.46 Managers must appreciate that staff who are monitoring communications may hear conversations which are uncomfortable or embarrassing such as sex talk or the use of swear words. Monitoring staff therefore need to be prepared for this and must be provided with advice on how to handle such conversations. 2.47 Prisoners must be informed that conversations must not contain any of the following subjects:
Prisoner access to Telephones 2.48 Governors must ensure that systems are in place to control prisoners’ access times to telephones, the duration of calls, and that measures are in place to manage those subject to simultaneous monitoring. Subject to the prison’s regime, prisoners must have free access to telephones during association and at such other times as are reasonably practicable and appropriate. Such measures must also be in place where in cell telephony has been installed in an establishment. Guidance on allowing non-UK national prisoners access to telephones outside normal hours is given in PSI 49/2011. 2.49 Prisoners must not be allowed to telephone a person or organisation if intelligence indicates that the person or organisation represents a genuine threat to the security or good order of any prison. Similarly, security restrictions must be in place to prevent prisoners from making contact with those they are banned from contact. In some cases, such contact would be unlawful. Particular attention must be given to written correspondence and ensuring that prisoners are not able to use prisoner associates to write letters to those they are banned from contacting. The Public Protection Manual gives additional guidance in particular with respect to prisoners identified as presenting a risk, or potential risk, to children or subject to harassment measures. Retention Periods 2.50 The AO must authorise the retention of intercepted communications beyond the three month permitted period where it is necessary and proportionate to do so in line with Prison Rule 35C. He/she must ensure that any conversations recorded from the telephone system and retained for intelligence/evidential purposes are retained securely and handled as at least Official – Sensitive material under the Government Security Classification (GSC). 2.51 Applications and authorisations to monitor communications must be attached to the prisoner’s Mercury file. In all cases where any security information is heard or read, and IR must be submitted.. Random monitoring Logs 2.52 These can be destroyed three years from the date of the last entry on a sheet. Contact Lists 2.53 The information is retained on the PIN phone database. Paper records must be kept for six years from the date on the form and then destroyed. Managing Foreign Languages 2.54 Aside from exceptional and high risk category A prisoners and those on the E List, prisoners do not have to communicate in English. Where monitoring has commenced for a prisoner communicating in a language other than English, the establishment must have a strategy in place to manage the risk.
Other telephony Issues 2.55 Arrangements for prisoners to contact the media are set out in PSI 37/2010. 2.56 Prisoners must not be allowed to use official telephones other than in the circumstances set out in PSI 49/2011. 2.57 Prisoners must not be allowed to add 0800 numbers (and other platform numbers) to their list of social contacts. 0800 numbers are only permitted if the call is to a legal representative or other approved confidential number. Call Diversion, 0800 and Platform numbers on the Telephone System 2.58 There are risks associated with the use of call diversion services which can impact on the ability to prevent and detect crime, to protect the public, and to stop the harassment of witnesses and victims. There are several companies that offer a service to reduce the cost that a prisoner pays, in particular to mobile telephones – the prisoner still pays a set amount but the remainder of the call is paid by the recipient of the call – but such diversion or re-routing services are not permitted. 2.59 The communications compact is clear at point 10 that telephone calls to numbers which are known to divert or route to another number are not permitted. It is of course appreciated that without a technological solution, this will be difficult to police but it may be appropriate to ask the prisoner why a number on his/her contact list is being changed; alternatively, if a number is changing from a mobile to a landline number, this may suggest that a call diversion service is being used; alternatively, amendments to telephone contact lists may lead to the initiation of monitoring within the Immediate Response provisions. 2.60 Where prisoners request a telephone number which is not permitted or knowingly make a call to a number which they know is to be diverted, this may be dealt with by way of Prison Rule 51 (23) “Disobeys or fails to comply with any rule or regulation applying to him.” Written Communications 2.61 In order to ensure that all mail that needs to be monitored is identified, all incoming and outgoing mail must be delivered to the mail room or another central point for sorting. Legal and confidential correspondence must be identified and dealt with separately. 2.62 It is a matter for the governor to decide whether monitoring is actually undertaken by mail room staff or is dealt with by other staff. Local instructions and processes must ensure that systems are joined up so that all mail is sorted effectively, that record keeping and audit trails are complete, and that information is shared so that risks and threats are identified and managed effectively. 2.63 The restrictions set out in paragraph 2.47 apply to written correspondence. See also section 11 of PSI 49/2011. Identification of prisoners’ correspondence 2.64 Prisoners must include their name, number, and establishment address on any outgoing correspondence. See paragraph 11.1 of PSI 49/2011. Local notices must inform prisoners of this requirement. Copying Mail 2.65 Written correspondence must not be copied unless necessary in line with Prison Rule 35A(4) for one of the following reasons:
2.66 Copies of letter must not be retained for protracted periods and certainly not beyond three months of the date of the letter or the date the copy was taken (if different) unless this can be justified and this is authorised by the Authorising Officer for interception. Stopped Letters 2.67 If a Manager decides to stop a letter from reaching the intended recipient, there are several options open:
2.68 Whatever action taken, it must be necessary and proportionate in line with Prison Rule 35A(4) to the threat posed in the correspondence and justifiable. Subject Access Requests 2.69 A prisoner may make a subject access request under the Data Protection Act (DPA) as set out in PSI 44/2014 – AI 28/2014 – PI 61/2014. Data Access Compliance Unit (DACU) can provide advice on a case by case basis. Access to the Internet and social networking sites 2.70 Prisoners are not permitted to access or contribute via a third party to any social networking site while in custody. The restrictions on correspondence equally apply to communication while on temporary release from custody and, where appropriate, licences must reflect this. 2.71 Prisoners do not have access to the Internet other than for educational or resettlement purposes (and only then under strict supervision). What this means is for the most part prisoners are not authorised personally to use the Internet but can, where appropriate, receive information downloaded from Internet. This is a necessary and proportionate restriction under Prison Rule 34. 2.72 Some prisoners have however managed to gain unauthorised access to social networking sites to update their profiles. This has been done by using illicit mobile phones, via a third party – e.g. a letter to a friend is posted on their Facebook profile, or accessing the Internet while on release on temporary licence. There are instances when prisoners have legitimate reasons to access the Internet when on temporary licence (this may be in cases where a prisoner is undertaking a period of work experience with an employer who may use the Internet as a legitimate part of their business) but this must never involve contact with people to whom they present a risk of harm or with victims of their offence. 2.73 A variety of offences may be committed if a prisoner uses a mobile phone to update social media. These include:
2.74 Concerns about a prisoner accessing or up-dating an active profile on Facebook or another Social Networking Site (SNS) must be reported to the prison security manager to consider what action to take, including referral to the Police. Staff in the CIAB must also be contacted to discuss options, including removing the profile from the SNS. Monitoring of prisoner telephone calls for security intelligence purposes is authorised and proportionate to the threat posed Targeted interception of prisoner mail for security intelligence purposes is authorised and proportionate to the threat posed 2.75 Local instructions on the interception of communications must include the following:
2.80 The E-List prisoner must be informed that his/her communications will be monitored for one or more of the reasons allowed for by rule 35A(4) of the Prison Rules using the Notification to Prisoner form (See PSI 10/2015 – AI 07/2015 Annex B). 2.81 All correspondence to and from personal contacts must be subject to monitoring and any risks identified must be managed in accordance with PSI 49/2011, paragraph 2.27 and section 11. All mail monitored must be recorded on an IML. Local instructions must set out the arrangements for monitoring incoming and outgoing mail of E-List prisoners including:
2.82 A prisoner placed on the E-List must be informed in writing using Notification to Prisoner form (Annex B) that all of their mail (with the exceptions above) will be monitored. 2.83 When a prisoner is removed from the E-List, the AO must advise whether any further periods of intelligence led monitoring are appropriate. Immediate Response Monitoring (IRM) 2.84 This allows staff to test intelligence on an intelligence report or from another source. In these cases, the IR provides the audit trail and the manager signing off the IR can authorise the IRM. Any monitoring under IRM must be justifiable for one of the grounds cited in Prison Rule 35A(4). In line with rules set out in paragraphs 2.21 - 24 above, IRM cannot be used to monitor legal or confidential communications. 2.85 This monitoring must usually be undertaken for a period of no more than five days from the date of an original intelligence report or the date of the incident and where appropriate five days going forward. Research under IRM can include past telephone calls retained on the telephone system and future calls/letters. 2.86 There must be an audit trail of all IRM.. Intelligence Led Monitoring (ILM) 2.87 In order for ILM to have benefit, there must be staff available to undertake the monitoring authorised and those carrying out the monitoring must be made aware of intelligence requirements and must be kept updated on relevant information on subjects by way of written intelligence profiles and other briefings. 2.88 ILM requires a written authorisation by the Authorising Officer (AO) to authorise telephone communications, or mail interception, or both. 2.89 In the first instance the authorisation will be for three months when a review must be conducted. It is essential that staff develop an intelligence profile of the subject(s) to assist the review process. 2.90 In line with the rules set out earlier at 2.21 – 24 confidential communications must not be monitored. Random Monitoring 2.91 Random monitoring is afforded the lowest priority within the interception arrangements in a prison. That said, it is recognised that prisoners do continue to communicate information of interest to security by telephone and in writing and random monitoring allows prisons to uncover new risks or threats or prisoners of interest. 2.92 Random monitoring must usually be no more than 5% of mail and telephone calls each day. 2.93 All monitoring undertaken must be recorded on the random monitoring log (RML). 2.94 If a prison governor is satisfied that all other aspects on interception is working effectively, a decision may be taken to opt out of random monitoring. This decision will need to be justified to the Deputy Director of Custody (DDC) and IOCCO at the time of an inspection. The decision to opt out of random monitoring must also be subject to regular review (at least annually). TACT Prisoners 2.95 All TACT prisoners (those remanded for or convicted of offences under terrorism legislation as listed in PSI 14/2013) or TACT related prisoners (someone whose offence has been determined by a court to have a terrorist connection) must be subject to 100% monitoring of mail and telephone calls on reception into prisoners. TACT prisoners must be informed of this requirement and monitoring must continue for as long as is necessary and proportionate for one or more reason listed in Prison Rule 35A(4). 2.96 There must be an audit trail of all monitoring. Young Persons 2.97 Rules on interception of communications apply equally to young people in custody (YOI Rules 9 – 15 mirror prison rules 34, 35, and 35 A-D). Therefore all establishments holding young people must have in place local instructions in line with this PSI and that take full account of the requirements of PSI 08/2012 to undertake monitoring where it is necessary and proportionate to do so. 2.98 The Governor may also order a young person in his or her custody not to telephone or write to a particular person if he or she considers that such communication is not in the young person’s best interests; in exercising this discretion the Governor must take account of any views expressed by the young person’s parent or guardian. 2.99 YOIR 11 (4) (e) and (f) allow routine listening to protect the young person from adults who may pose a threat to his/her health and morals or rights and freedoms: calls may be routinely listened to only where there is reasonable cause to suspect the existence of such a threat to a young person, and only for as long as is necessary to determine the existence of such a threat. 3. Offence Related Monitoring 3.1 The oversight of prisoners subject to the provisions of the public protection manual will, in the main, fall to an establishment’s Offender Management Unit (OMU) or similar. 3.2 It must be a priority that the OMU and Security work closely together to ensure there is appropriate information sharing and in particular to establish a process to properly risk assess threats posed by these prisoners. Existing meeting structures may already exist for this and involving the PIO in the process is recommended. 3.3 There must be an up to date list of all prisoners subject to monitoring for public protection/offence related purposes. This list must be available to all staff engaged in monitoring the PIN phone system and staff in the Post Room. This list must also contain the details of persons the prisoner must not contact whether victims, witnesses, or non contact for other reasons. . 3.4 As set out in paragraphs 2.25 – 2.26, there must be no monitoring of legal or confidential communications without authority of the CEO of NOMS or another Director. Identification 3.5 Often a prisoner’s Person Escort Record (PER) or antecedents will indicate a specific risk and that the prisoner is subject to public protection measures. As soon as a prisoner has been identified as being subject to public protection measures, the Authorising Officer (AO) must complete part 1 of the Public Protection Interception Risk Assessment (PPIRA) so that communications monitoring can commence. Checking Personal Contacts 3.6 It is mandatory that all personal contacts are checked before the prisoners is allowed to speak with or write to their contact. A record must be maintained both on the application form and the PIN phone system itself that checks have been made. Staff must be satisfied that the prisoner and the proposed contact are known to each other and remind the contact that calls must not be diverted. It is also essential that staff check whether relevant risks need to be explored (e.g. if the prisoner must not speak with any child; is a child likely to answer the telephone?) Any number that cannot be verified must not be enabled. Any concerns about the contact must be submitted on an IR. 3.7 If there are no concerns, the telephone number must be enabled on the PIN phone system. Governors may consider initiating a period of monitoring for each new contact enabled on the PIN phone system to help assess whether the prisoner’s risk has or seems likely to alter. 3.8 Confidential telephone numbers must be checked and verified. 3.9 If a prisoner has been transferred from another establishment, the receiving prison must check that a risk assessment (PPIRA 1 and 2) has been completed in the past. 3.10 If the prisoner has contacts overseas who do not speak English, the obligation to carry out checks does not diminish. Consequently, prison management can use a translator or a member of staff who speaks the relevant language. A list of written correspondents must be maintained to form part of the intelligence profile. Risk Management Process 3.11 Local instructions must set out the arrangements for recording and monitoring the telephone conversations of prisoners remanded or convicted of particular offences. The instructions must include the following: 3.12 Monitoring must be initiated in all of the following cases:
MAPPA 3.13 Intelligence gathered as a result of intercepting communications for MAPPA eligible offenders must be shared at inter departmental risk management meetings (or equivalent) throughout the prisoner’s sentence. This allows risk to be managed effectively and for appropriate plans to be put in place as necessary. 3.14 Where a MAPPA panel is convened, the MAPPA Chair may believe it is necessary and proportionate to monitor or restrict a prisoner’s communications in order to manage risk. 3.15 There must be an audit trail of all monitoring undertaken. . 4. Prisons Holding Category A Prisoners 4.1 Section 2 of PSI 09/2015 (NSF 12.1) defines category A, including potential category A, provisional category A, and restricted status. Potential category A prisoners and restricted status prisoners in particular may be located outside the High Security estate and the arrangements set out below apply to prisons in which those prisoners are held. 4.2 A Restricted Status prisoner is any female, young person or young adult prisoner, convicted or on remand, whose escape would present a serious risk to the public and who is required to be held in designated secure accommodation. 4.3 All category A prisoners (including potential, provisional, and restricted status) must be informed that communications will be intercepted. 4.4 Arrangements must be in place to ensure that prisoners who are subject to simultaneous monitoring cannot make telephone calls when monitoring staff and/or a translator is not available. Confidential communications must not be monitored except where authorised in line with paragraph 2.25 – 2.26 above. 4.5 There must be an audit trail of all monitoring undertaken Potential category A/Restricted Status 4.6 These are prisoners who have been “reported in” to the category A team in HQ for consideration as category A. Decisions are to be taken within 72 hours of notification. 4.7 The risks of escape or witness intimidation or other criminality at this time are considerable and as a result, all communications to personal contacts must be monitored until a decision is taken. 4.8 The Authorising Officer for interception must advise staff whether telephone calls are to be subject to simultaneous monitoring or if not, the call must be monitored within 24 hours of the call, being made. 4.9 All communications must have been monitored before a prisoner is transferred. Provisional category A/Restricted Status 4.10 In line with PSI 09/2015, some Potential category A prisoners will be confirmed as provisional category A. 4.11 On being confirmed as provisional category A, all written and telephone communications must be monitored. Standard Risk Category A/Restricted Status 4.12 Communications by Standard Risk category A prisoners or other prisoners in high security prisons do not automatically fall to be monitored, except as outlined elsewhere in this document. Each Standard Risk prisoner must be considered for ongoing monitoring on a case by case basis. 4.13 Prisoners may write their letters and speak on the PIN phone system in the language of their choice, but letters not written in English and which are subject to reading must be dealt with in line with the establishment local translation policy. 4.14 If a communications authority is in place, the AO for interception must set out the time frames by which communications must be monitored. High Risk Category A 4.15 It is necessary and proportionate that all written and telephone communications of High Risk category A prisoners are monitored throughout the period in which they are high risk. Communications must be made in English unless the prisoner or social contact does not speak English. In such cases, the governor must first approve the use of a different language and have arrangements in place to ensure that all communications are translated within 48 hours of the call being made or the letter being received. 4.16 Communications made in English may be monitored simultaneously but certainly within 24 hours of the call being made or letter received. Exceptional Risk Category A 4.17 It is necessary and proportionate that all the mail of Exceptional Risk category A prisoners and must be monitored and their communications written in English. If another language is used – this decision is a matter for the governor - the letter must be translated and read before the letter can be posted/passed to the prisoner. 4.18 It is also necessary and proportionate that all telephone calls of Exceptional Risk category A prisoners will be monitored. These calls will be subject to simultaneous monitoring throughout the time the prisoner has this classification. All telephone communications must be conducted in English unless English is not spoken by either the prisoner or personal contact, and the governor has approved conversations taking place in another language. If so, there must be an approved Interpreter in place to simultaneously monitor the call in its entirety and contingencies in place to terminate the call where necessary and proportionate to do so. 4.19 Calls must be booked in advance and Exceptional Risk category A prisoners must not be able to make calls outside of these arrangements. Approved Personal Contacts 4.20 Category A prisoners must submit the list of telephone numbers to be enabled on the telephone system, including confidential numbers. All contact details – personal and confidential must be carefully checked and approved. 4.21 If the prisoner has contacts overseas who do not speak English, the obligation to carry out checks does not diminish. Consequently, prison management can use a translator or a member of staff who speaks the relevant language. A list of written correspondents must be maintained to form part of the intelligence profile. 5. Voluntary Disclosure Intelligence developed as a result of communication interception is shared legally and appropriately 5.1 Prison Rule 35C allows for disclosure of intercepted material to persons outside of the Prison where necessary (for example in the interests of national security, to prevent or detect crime, or to protect the public) and proportionate to what is sought to be achieved. Voluntary disclosure must be authorised by a Manager (band 7 or higher) authorised by the governor for this role – possibly one or more Managers who act as Authorising Officer for the Interception of Communications.
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