Monday, March 12, 2012

Important information on the use of mobile phones by prisoners

Section 45 of the Crime and Security Act 2010 (offences relating to electronic
communications devices in prison) will come into force on 26th March 2012.

This important to know because it does not only affect prisoners using mobiles to
text/make calls/send images but also people calling/texting prisoners or receiving such communications - the maximum prison sentence could be 2 years if caught!

The Law -

Section 40D of the Prison Act 1952 (as inserted by section 23 of the Offender
Management Act 2007) provides:

(1) A person who, without authorisation
(b) transmits, or causes to be transmitted, any image or any sound from inside a prison by electronic communications for simultaneous reception outside the prison, is
guilty of an offence.

An amendment in the Crime and Security Act 2010, when in force, will extend this to
include 'any image, sound or information'. Section 40D will expressly apply to the
transmission of a text message, although such a message is arguably included in the
concept of 'image'.

For the purpose of section 40D 'electronic communication' has the same meaning as in
section15 of the Electronic Communications Act 2000, which defines 'electronic
communication' as:

a communications transmitted (whether from one person to another, from one device or
another or from a person to a device or visa versa) -
(a) by means of an electronic communications network; or
(b) by another means but while in an electronic form.

When new provisions in the Crime and Security Act 2010 come into force, section 40D(3A) of the Prison Act 1952 will make possession of a device capable of transmitting or receiving images, sounds or information by electronic communications (including a mobile telephone) inside a prison an offence.

These offences are either way offences and the maximum penalty on indictment is two
years imprisonment, and/or a fine.

Clearly, the section 40D offence can be committed by a person in prison who uses an
unlawfully possessed mobile telephone to make an unauthorised call.

However, it is arguably also an offence for a person outside a prison to make a call to a prisoner on a mobile telephone, if the call is answered by the prisoner and the
prisoner speaks to the person who has made the call.

Section 40D could be interpreted to include a person outside the prison intentionally
calling a mobile telephone in the possession of a person in prison, because he or she
has intentionally caused the prisoner's voice, inside the prison, to be transmitted
over the relevant telecommunications network for simultaneous reception by the person
outside the prison.

It is also possible that criminal liability as an accessory could apply to persons
outside a prison making a call to a prisoner's unlawfully possessed mobile telephone.

Section 8 of the Accessories and Abettors Act 1861 could be construed so that the
outside person would procure the section 40D offence, in that the act of dialling a
number to create a connection with the unlawfully possessed mobile telephone would be
'the endeavour', which, combined with an intention that the prisoner will answer the
call, could create accessory liability to a section 40D offence.


Please circulate!

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