From: Hunter, Patrick [NOMS]
1 May 2012
Dear Ms McNeill
Thank you for your email of 17 March asking for information about prison
conditions for litigants. As your request does not fall within the terms
of the Freedom of Information Act it has been dealt with it as a Treat
Official enquiry and as such I have responded accordingly. I have
answered each of your questions below in he order they appear:
1. With regard the position/recognition of McKenzie friends and the
Prison Service, there is no individual or specific Prison Service Order
(PSO) or Prison Service Instruction (PSI) which covers this particular
subject but if in connection to an adjudication guidance can be found in
the Prison Discipline Procedures PSI – PSI 47/2011 at paragraphs 2.10 t o
2.15 under Tarrant Principles.
If the matter does relate to an adjudication, the guidance states that at
the start of every hearing, the adjudicator must ask the prisoner whether
s/he wishes to have additional assistance and, if the prisoner expresses
interest, must explain about the possibilities of legal representation,
legal advice, or of assistance from a friend or adviser, also known as a
McKenzie friend.
Requests for legal representation, legal advice or a
McKenzie friend may also be made during the adjudication.
McKenzie friends may ask for arrangements to be made before the hearing
for access to various facilities in order to help the accused prepare the
case.
However, and as may be apparent from the above, a McKenzie friend cannot
act as a legal representative in the same way as an appointed solicitor or
barrister and therefore they do not attract the special privileges of
things such as Rule 39 or legal visits.
This means that in terms of
visiting arrangements the format would be a matter for local discretion
and in relation to documentation passed between the prisoner and their
McKenzie friend these would not attract the confidential privilege
attached to Rule 39 unless they had originated from a solicitor or
barrister or the Courts.
2. The decision to use the services of Emailaprisoner.com is at the sole
discretion of individual Governors/Directors and there is no central
directive from NOMS Headquarters that it should be made available across
the prison estate.
3. While it is perceived that the cost of prisoners’ calls is relatively
high this must be reflected in the fact that the telephone system
(PINphone system) available to prisoners is viewed as a “private network”
and the cost of calls are not currently linked to public call rates. This
is because the public payphone service does not require the same level of
investment as the prison PINphone system which must operate safely and
securely within the prison setting. Furthermore, to reduce costs under
the current contract would require a large subsidy at public expense. The
PINphone system is a unique service designed to ensure safe and secure
access to telephones for prisoners.
4. Postal orders are not the only way in which monies can be sent into
prisoners. NOMS policy is set out in Paragraph 15.10.2 of Prison Service
Instruction 26/2011, NOMS Finance Manual, this recommends that monies sent
in by post should be by cheque or postal order to safeguard the sender and
the recipient, but establishments cannot refuse to accept cash.
5. Litigant in Persons who are on remand are not afforded any different
provisions with regard the PINphone system as convicted prisoners.
However, where there are any urgent legal or compassionate circumstances,
such as imminent court proceedings or a domestic crisis,
Governors/Directors have the discretion to allow such calls to take place
at public expense. Before agreeing to such, it must be confirmed that
this need could not be met by means of a visit or letter and that the
individual had insufficient credit within their PINphone account to make
the call.
As stated these calls will be made at public expense and such
calls can be made either via an official telephone or a generic PINphone
account with pre-funded credit paid for by public funds.
Furthermore, while the PINphone system does not accept incoming calls,
arrangements can be made to allow prisoners to exceptionally receive calls
on official telephones from official bodies or the Courts. However, this
would again be at the Governors discretion.
Unconvicted prisoners are statutorily entitled to send two free letters
every week and the cost of postage will be paid for by the local prison
(normally sent at the 2nd Class rate of postage). They are also entitled
to a Special Letter on top of their statutory entitlement if in
exceptional circumstances and this would include in connection with their
defence. They can send as many privilege letters (ones which are paid for
by the prisoner) as they wish and are allowed to send over and above their
statutory entitlement of letters. The policy which covers the above
guidance can be found in PSI 49/2011 Prisoner Communications Services.
6. Prisoners who demonstrate that without IT there is a real risk of
prejudice to their legal proceedings are issued with IT. The
Governor/Director must be convinced that the prisoner's access to justice
will genuinely be hampered without appropriate IT. The overriding purpose
is not to provide equipment simply to make the manipulation of material
easier or to facilitate swifter communications, but to prevent the
impediment of access to legal documentation that might otherwise result if
the equipment is not made available. For example, a piece of prosecution
evidence might only be available in digital format or be so unwieldy in
paper format as to be impractical and it might therefore disadvantage the
prisoner if the necessary facilities were not provided.
Ideally, the
prisoner's solicitor would make arrangements to bring such a piece of
evidence to a legal visit to enable the client to view it and then take it
away again, although if the prisoner is conducting their own defence it
does not follow that IT must be provided for the duration of the case - it
might only be needed to view that one piece of evidence and so should be
withdrawn as soon as is practicable afterwards.
Governors/Directors must balance the prisoner's need against the serious
threat that IT presents to security in prisons and where access is
permitted must ensure that there are procedures and technical fixes in
place to prevent misuse such as illicit access to the internet and the
downloading/sharing of material that might endanger or cause distress to
the public, staff and other prisoners, or otherwise undermine confidence
in National Offender Management Service/Ministry of Justice.
Regards
Patrick Hunter
Offender Safety, Rights and Responsibilities Group
National Offender Management Service
Post Point 4.16,
4th Floor,
Clive House
70 Petty France
London
SW1H 9EX
Tele: 0300 047 5718