Interception of Communications (Prison)
Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)
I and other Ministers at the Ministry of Justice were told of the existence of the transcripts on
In response to the allegations being made, the then Deputy Director General of HM Prison Service commissioned an investigation into the circumstances surrounding the interception, monitoring and retention of communications between Mr Roberts and his solicitor. I also asked for an internal investigation to be undertaken by the National Offender Management Service to determine the precise circumstances in which the transcripts of legally privileged conversations had come to be made and passed to the SAA. I am now in a position to inform the House of the findings of the investigations into this issue.
This statement relates to how transcripts of conversations between Mr Creighton and Mr Roberts came to be included in material prepared for Mr Roberts' previous parole hearing. In summary, the Prison Service investigation concluded that this occurred because Mr Roberts failed to identify his solicitor's telephone number to staff at Channings Wood prison, though Mr Roberts, through his solicitor, disputes this finding.
The prison rules allow for the interception of communications in prison and for intercepted information to be retained for up to three months and to be disclosed to the police and others when it is necessary and proportionate to do so, either on receipt of a lawful application to access the information or by way of lawful voluntary disclosure. Interception is the action that makes the contents of a telephone or mail communication available to a person other than the sender and intended recipient. An operational manager can authorise the interception of communications for reasons such as prison security and control, but there is also a policy that prisons will monitor all the communications of certain prisoners—for example category A prisoners—who pose the greatest risk to the public and/or security within prisons. Telephone monitoring is the action of listening to recordings of the content of intercepted telephone communications. Prison staff keep a record of which calls have been monitored. The interception described here is undertaken by the prison authorities under prison rules. It does not require authorisation by a Secretary of State under part I of the Regulation of Investigatory Powers Act (RIPA). Nor should it be confused with the directed surveillance class of authorisations under part II of RIPA, necessary for the conduct of covert eavesdropping in prison visiting rooms, which were the subject of the recent inquiry by the chief surveillance commissioner, Sir Christopher Rose, about which my right hon. Friend the Secretary of State for the Home Department made a statement on
The PIN phone system—so called because prisoners are given a personal identification number (PIN)—intercepts and records all telephone calls that prisoners make, except those identified by the prisoner as legally privileged or otherwise confidential communications (for example with the Samaritans). All intercepted telephone communications are recorded by the PIN system and initially stored on the hard drive of the system before being copied onto either a tape or CD for retention purposes. Only those prisoners who pose the greatest risk have all their communications monitored but all establishments will undertake an element of random monitoring of telephone communications of no more than 5 per cent. of calls made on a particular day. Prisoners are made aware during the induction process and by notices prominently displayed within the prison that their calls are intercepted, recorded and may be monitored.
The PIN phone system is configured in such a way that it does not intercept communications between a prisoner and their legal representative or other confidential communications provided that these numbers are declared as being confidential. This is what is termed the confidential side of the PIN system—it is not subject to interception. However, in very limited circumstances, for example where a prison governor or law enforcement agency has reasonable cause to believe that a telephone call between a prisoner and his legal adviser is of a criminal nature or would endanger prison security or the safety of others, the governor may authorise the interception, recording and monitoring of such conversations by moving the legal representative's number from the confidential side of the PIN phone system to the open side, without the prisoner's knowledge. Such communications will then be intercepted, and a member of staff will listen to them, for such period as is deemed necessary. There was no authorisation to intercept, record and monitor the legal telephone conversations between Mr Harry Roberts and his solicitor, Mr Creighton. For the future I have decided it is more appropriate, given the sensitivity and seriousness of interfering with legal professional privilege, to raise the grade for such interception of communications to the Chief Operating Officer for the National Offender Management Service. We will amend the prison rules accordingly.
The general position is that legal representatives' numbers are included on the confidential side of the PIN system to ensure that calls are not intercepted and recorded, although a log is kept of the date and time of the call. However, it is the responsibility of prisoners to notify the prison authorities of the telephone numbers of their legal representatives, so that such calls are not inadvertently intercepted.
In the case of Mr Roberts, in the view of the Prison Service, the recording of his telephone conversations with his solicitor occurred because Mr Roberts failed to identify to staff at HMP Channings Wood the telephone number of Mr Creighton of Bhatt Murphy. This was established during the investigation commissioned by the then Deputy Director General of HM Prison Service. When the PIN phone system was introduced at HMP Channings Wood in 2002, all prisoners were told that they needed to identify the telephone numbers of their legal representatives by completing a form, so that those numbers could be entered on to the confidential part of the PIN system with calls to those numbers not intercepted. Mr Roberts states that he did identify the relevant number, but there is no evidence that he did so. There is no documentary evidence that he underwent the training to familiarise prisoners with the PIN system on its introduction. However, the Prison Service has confirmed that Mr Roberts would not have received a PIN number or have been able to transfer funds to his PIN phone account had he not undergone the training. In June 2006, a notice was issued to prisoners at Channings Wood reminding them of their obligations under Prison Service Order 4400 to list their legal telephone numbers, to which Mr Roberts did not respond. Consequently, whilst he was imprisoned at HMP Channings Wood, all of his calls to his solicitor were intercepted, recorded and could have been monitored. There is, however, no evidence that Prison Service staff at Channings Wood carried out any monitoring of these communications.
The lifer section in the National Offender Management Service obtained the recordings without themselves listening to, transcribing or reviewing them in any way and sent them to the Treasury solicitor, who was acting for the Secretary of State. Secretarial staff at the Treasury solicitor then made transcripts of the recordings. Due to the pressure of time in preparing for the parole hearing and the concern of the SAA to have the material as soon as possible, Treasury counsel and the Treasury solicitor agreed with the SAA that the transcripts and tapes of the recordings should be provided to the SAA as they became available and before they were reviewed.
In January 2006, when counsel for the Secretary of State discovered one transcript of a telephone conversation between Mr Roberts and Mr Creighton, she alerted the Treasury solicitor and the lifer section to the existence of the transcript, and advised that the transcript should not be reviewed. On further examination of the transcripts, two other transcripts of telephone conversations between Mr Roberts and Mr Creighton were discovered. All three transcripts were then deleted from the transcripts that the Secretary of State provided to the Parole Board. However, as a result of an oversight some copies of the transcripts were kept. The prison governor at Channings Wood was not made aware of the existence of this material.
At that time, the SAA was representing Mr Roberts in all matters relating to the closed proceedings and consequently there were no communications between the Treasury solicitor and Mr Creighton about matters relating to the closed hearing. As a result, a decision was taken by the Treasury solicitor not to tell Mr Creighton of the existence of the transcripts and tapes. However, the SAA was made aware of the existence of the transcripts and the SAA had the transcripts and tapes and would have been able to raise any concerns on Mr Roberts' behalf, although he did not in fact do so.
The Treasury solicitor and Mr Creighton have exchanged correspondence about this matter. Mr Creighton wrote to the Treasury solicitor on
I would like to add for completeness that I learned on
The investigation also found that it was only officers at detective constable level in Derbyshire constabulary that knew of the existence of the legally privileged material. Those officers then failed to inform or seek advice from their senior officers or the force solicitor. The officers involved have since received advice on legal professional privilege, and systems within the constabulary have been tightened more generally.
The chief constable of Derbyshire has provided assurance that the transcripts held by his constabulary were never used as evidence or intelligence, nor were they disseminated to any senior officer or partner agency. Derbyshire constabulary reacted promptly, comprehensively and openly once this issue was brought to its attention. Derbyshire constabulary has given an undertaking not to destroy any material relating to Mr Roberts, but in particular the transcripts of his telephone conversations, including legal conversations without the prior agreement of Mr Creighton and NOMS.
The report of the interception of communications commissioner for 2006 (HC 252) was laid before Parliament by my right hon. Friend the Prime Minister on