Prisons (Interference with Wireless Telegraphy) Act 2012

The Prisons (Interference with Wireless Telegraphy) Act 2012 was a Private Members' Bill sponsored by Sir Paul Beresford MP and supported by the Ministry of Justice. Introduced to Parliament on 20th June 2012, it authorises the blocking and capture of electronic communications data sent and received within prisons, young offenders' institutions and secure training centres located in England, Wales, and Scotland. It received Royal Assent on 2012-12-19.

Plain English Content of Bill

Full text of Bill

Accompanying explanatory notes

Clause 1 – establishes basic permissions (must be made in writing), identifies the authorised conduct, and ensures that such conduct is lawful. Authorised conduct means blocking or capturing communications data sent and received by capable devices, and must be authorised in writing.

  1. Permits the Secretary of State to authorise those in charge of prisons/young offenders’ institutes and ‘secure training centres’ (“relevant institutions”) to ‘interfere with wireless telegraphy’.
  2. ‘Interference’ means blocking and capturing traffic data sent to and from devices of the kind listed in (3) within the authorised institutions.
  3. Any device, or part of a device, capable of transmitting or receiving images, sounds, or information by electronic communications. Additionally, any storage medium ‘for use with such a device’, including disks, films or SD cards etc.
  4. Reasserts that ‘interference’ includes the collection, storage, and disclosure of communications data related to any device as identified in (3).
  5. All conduct performed under Clause 1 is lawful.
  6. Clarifies (5) – conduct must be authorised (1) carried out in accordance with (2), and any data captured must be stored etc in accordance with the Bill.
  7. Wireless Telegraphy Act 2006 does not apply to anything done for the purpose of carrying out conduct under this Bill.
  8. Any authorisation must be given in writing.

Clause 2 - establishes protocols for granting authorisation for conduct under Clause 1.

  1. Equipment must be established to be fit for purpose prior to authorisation.
  2. The Office of Communications (“OC”) must be informed when an authorisation is granted.
  3. A person in charge of a relevant institution is bound by directions given under Clause 2.
  4. Where authorisations are granted, those authorisations must be accompanied by instructions detailing what information must be given to the OC, in what intervals, and detailing the limits above which the authorised interference would be considered to be “disproportionate interference with wireless telegraphy outside the relevant institution”.
  5. Other instructions may be included in addition to (4)
  6. Any direction must be given in writing.

Clause 3 - concerns rules for the retention, disclosure, and destruction of information obtained under Clause 1, all of which must be authorised in writing.

  1. Any information collected must be retained for no more than 3 months after its collection, unless the person in charge of the relevant institution has authorised its extended retention.
  2. That person may not give an authorisation as above unless satisfied that its retention is necessary on one or more of the grounds under (8) and such retention is proportionate to what is sought to be achieved.
  3. Any such authorisation must be reviewed by that person at intervals of no more than 3 months.
  4. If the retention is no longer justified under (2), arrangements must be made for the information’s destruction.
  5. Such information may be disclosed to officers, authorised employees, the Secretary of State and, if in Scotland, Scottish Ministers.
  6. Such information may also be disclosed to other persons if authorised by the person in charge of the relevant institution. No other disclosure may be made.
  7. Disclosure may only be made if proportionate and is necessary on one or more grounds listed under (8).
  8. The specified grounds are –
    1. Interests of national security;
    2. Prevention, detection, investigation, or prosecution of crime;
    3. Interests of public safety;
    4. Securing or maintaining security or good order and discipline in the relevant institution;
    5. The protection of health or morals.
  9. Any authorisation must be made in writing.

Clause 4 - interpretation of terms

  1. In this Act—
“the appropriate national authority” means—
a. in relation to a relevant institution in England or Wales, the Secretary of State;
b. in relation to a relevant institution in Scotland, the Scottish Ministers;
“relevant institution” means—
a. a prison in England, Wales or Scotland;
b. a young offender institution in England or Wales;
c. a young offenders institution in Scotland;
d. a secure training centre in England or Wales;
“wireless telegraphy” has the same meaning as in the Wireless Telegraphy Act 2006 and, in relation to wireless telegraphy, “interfere” has the same meaning as in that Act.
2. In this Act reference to the person in charge of a relevant institution is—
a. in relation to a prison, its governor or, in the case of a contracted-out institution in England, Wales or Scotland, its director;
b. in the case of a young offender institution or a secure training centre in England or Wales, its governor or, in the case of a contracted-out institution, its director;
c.in the case of a young offenders institution in Scotland, its governor or, in the case of a contracted-out institution, its director.
3. For the purposes of subsection (2) an institution is “contracted-out” if—
a. in England or Wales, it is a contracted out prison within the meaning of Part 4 of the Criminal Justice Act 1991 (see section 84(4) of that Act);
b. in Scotland, it is a contracted out prison within the meaning of Chapter 2 of Part 8 of the Criminal Justice and Public Order Act 1994 (see section 106(4) of that Act);
c. in the case of a secure training centre in England or Wales, it is provided or run in accordance with a contract made under section 7 of the Criminal Justice and Public Order Act 1994.
4. In this Act “traffic data” means data—
a. which is comprised in, attached to or logically associated with a communication (whether by the sender or otherwise) for the purposes of a telecommunications system by means of which the communication is being or may be transmitted, and
b. which—
i. identifies, or purports to identify, any person, apparatus or location to or from which the communication is or may be transmitted,
ii. identifies or selects, or purports to identify or select, apparatus through which, or by means of which, the communication is or may be transmitted,
iii. comprises signals for the actuation of apparatus used for the purposes of a telecommunications system for effecting (in whole or in part) the transmission of the communication,
iv. identifies, or purports to identify, the time at which an event relating to the communication occurs, or
v. identifies data as comprised in, attached to or logically associated with the communication.
The references in this subsection to a telecommunications system by means of which a communication is being or may be transmitted include, in relation to data comprising signals for the actuation of apparatus, any telecommunications system in which that apparatus is comprised.
5. Data identifying a computer file or computer program access to which is obtained, or which is run, by means of the communication is not “traffic data” except to the extent that the file or program is identified by reference to the apparatus in which it is stored.
6. In this section “telecommunications system” has the same meaning as it has for the purposes of the Regulation of Investigatory Powers Act 2000.

Clause 5 - final provisions

  1. The Bill extends to England, Wales, and Scotland.
  2. Paragraphs (1)-(4) come into force on a day as appointed by the “appropriate authority”
  3. “Appropriate authority” means Secretary of State (England and Wales) and Scottish Ministers (Scotland).
  4. Any order under (2) must be made by statutory instrument.
  5. Citation given as the Prisons (Interference with Wireless Telegraphy) Act 2012.

Criticisms

  1. Explanatory note 6 states that "in England and Wales the criminal law already prohibits the taking into or use of electronic communications devices, including mobile phones". This implies that all electronic communications devices are prohibited, under 40A Prison Act 1952. Whilst this is correct, the offences are not strict liability[1] - they require a degree of knowledge from the accused. The provisions under the Bill will thus allow the collection of data even where the owner of the device would not be liable for an offence under the Prison Act 1952.
  2. There is no requirement under the Bill for notice to be given to visitors that their communications data may be captured. Under the existing law, conspicuous notification of prohibited items must be given to visitors prior to entry under 42 Prison Act 1952.
  3. Although the language concerning data collection is similar to that of the Communications Data Bill, the destruction requirements under 3(4) are not as stringent. Data must be "destroyed", but not "destroyed in such a way that it can never be retrieved".
  4. The Bill makes reference, under 2(4)(c), to the need to ensure that authorised conduct "will not result in disproportionate interference with wireless telegraphy outside the relevant institution". No mention is made as to what would be considered "disproportionate". Any measures deployed to block/collect communications data will necessitate a degree of 'bleed' into areas outside of the relevant institution. This may lead to the capture of communications data from, for example, passers by. There is no requirement to consult with communications providers within the affected area prior to authorisation of conduct under the Bill.
  5. The justifications listed under 3(8) are in some ways more broad than those in the Communications Data Bill. For example, captured data may be disclosed in order to protect "health or morals", and to any person authorised by the person in charge of the relevant organisation.
  6. The Bill does not require data held to be held in a secure manner.

References

  1. R v M and Another [2010] 4 All ER 51

This page was last edited on 13 February 2013, at 15:33.

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