Photo of Jack Straw

Jack Straw (Lord Chancellor, Ministry of Justice; Blackburn, Labour)

On 29 January 2008, Simon Creighton of Bhatt Murphy wrote to Treasury solicitors. In his letter, he stated that he had come across a written transcript of a telephone conversation between himself and his client, Mr Harry Roberts, in late 2005 while Mr Roberts was detained in HMP Channings Wood. The transcript was amongst material supplied to him by the specially appointed advocate (SAA) who had been involved in Mr Roberts' previous parole hearing. Mr Creighton also stated that there appeared to be at least one other telephone call between himself and Mr Roberts which had been recorded.

On 30 January 2008, the Treasury solicitor forwarded Mr Creighton's letter to officials at the Ministry of Justice. On receipt of the letter, officials began enquiries of HMP Channings Wood as to how the telephone conversations had come to be recorded and transcribed.

I and other Ministers at the Ministry of Justice were told of the existence of the transcripts on 4 February.

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 21 February 2008 (Hansard, col. 536). There is no suggestion that any legal visits to Mr Roberts were monitored.

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.

On 8 November 2005, for the purposes of a closed hearing of the Parole Board, my right hon. Friend Mr. Clarke, the then Secretary of State for the Home Department, was directed by the board to obtain recordings of telephone calls for the period 1 October to 8 November 2005 made by Mr Roberts whilst he was at HMP Channings Wood, to enable further detailed consideration of his level of risk to specific individuals. This request was for recordings in general. It did not refer to calls with his solicitor, nor was it intended to cover such calls. Mr Roberts was represented at the closed hearing by a specially appointed advocate (SAA).

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.

On 8 January 2008, the Parole Board directed that the SAA send the papers to Mr Creighton for the purposes of a new parole hearing for Mr Roberts. As far as counsel and Treasury solicitor for the Secretary of State were concerned, the transcripts had been deleted from the Parole Board dossier and so were not part of the evidence for the closed hearing of the Parole Board and there was no reliance on the transcripts of legally privileged conversations for the purposes of the parole hearing. However, the SAA had both the tapes of the recordings and the undeleted transcripts and these were included in the papers sent to Mr Creighton.

The Treasury solicitor and Mr Creighton have exchanged correspondence about this matter. Mr Creighton wrote to the Treasury solicitor on 29 January. The Treasury solicitor replied on 28 February. Mr Creighton wrote a further letter on 4 March, and the Treasury solicitor replied on 25 March. Mr Creighton wrote a further letter on 1 April, and the Treasury solicitor replied on 14 May. Mr Creighton, on his client's behalf, disputes part of the account above. I am, therefore, with his agreement, placing the full correspondence in the Libraries of both Houses.

I would like to add for completeness that I learned on 25 February that Derbyshire constabulary also had in its possession a number of transcripts of legally privileged conversations between Mr Roberts and his legal advisers and that the chief constable had instigated an internal investigation. That investigation has now concluded. The recordings of telephone conversations obtained by Derbyshire constabulary were as a result of four applications under the prison rules to HMP Channings Wood for recordings of Mr Roberts' conversations, which altogether covered the period 19 August 2005 to 8 October 2006. The investigation revealed that Derbyshire constabulary's remit in this matter extended only to consideration of a possible risk that had arisen to sources of certain information which had been provided to the Parole Board and taking such action as was necessary and proportionate to mitigate that risk. The constabulary was not involved in any decision regarding Mr Roberts' continued imprisonment. Derbyshire police were properly authorised to access Mr Roberts' communications under the formal process agreed between HMPS and ACPO. Derbyshire police's requirements were managed by the police intelligence officer at Channings Wood.

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 28 January 2008. NOMS continues to work closely with the interception of communications commissioner, who has non-statutory oversight of the interception of communications in prisons. NOMS will undertake a wide-ranging review of interception policy and procedures and an operational pilot of revised procedures. This review will consider the training needs of staff engaged in interceptions and whether further awareness is needed about the handling of legal professional privilege and other confidential material. I will make a further statement, should this be necessary.

Annotations

carlton bradbury
Posted on 16 May 2008 10:31 am (Report this annotation)

To suggest that a team as vastly as experienced as Harry Roberts and Simon Creighton would fail to inform prison authorities of a solicitor's telephone number, whilst knowing that all calls are being monitored, is frankly laughable. Why go through the trouble of typing up transcripts and distributing them if it is plain to see that these are privileged conversations between an inmate and his legal representative? How many other prisoners have been monitored in this way, or are we expected to believe that it is only the one? Please Mr Straw, a better explanation would be that rules were being broken, and through incompetence, the breech came to light. Please credit us members of the public with at least a little bit of intelligence.

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