| PRISONS — Prisoners’ rights — Prisoners’ property— Mobile telephone removed from possession of prisoner — Mobile telephone later destroyed — Whether destruction lawful — Whether prison governor empowered by legislation to order destruction — Whether power of prison governor as involuntary bailee extending to destruction of mobile telephone as noxious property — Prison Rules 1999, r 43(5)
R (Coleman) v Governor of Wayland Prison and another; [2009] WLR (D) 132
QBD: Dobbs J: 3 April 2009
While a mobile telephone found in the possession of a prisoner might properly be taken away from him, neither rule 43(5) of the Prison Rules 1999 nor the common law provided a prison governor with power to destroy the mobile telephone.
Dobbs J so held when allowing a claim for judicial review by the claimant prisoner, Mark Coleman, against a decision of the second defendant, the Secretary of State for Justice, to disagree with the conclusion of the Prisons and Probation Ombudsman dated 27 July 2007 that the destruction of the claimant’s mobile telephone, at the instance of the first defendant, the Governor of Wayland Prison on a date unknown, had been unlawful, and to refuse to pay compensation.
DOBBS J said that a mobile telephone had been removed by the first defendant from the possession of the claimant prisoner and, while the evidence was unclear about the circumstances, it was common ground that the mobile telephone had later been destroyed at the governor’s instance. The defendants contended that power to confiscate a prisoner’s property permanently was to be derived from r 43(5) of the Prison Rules 1999, alternatively from the common law. In Duggan v Governor of Full Sutton Prison [2004] 1 WLR 1010 the Court of Appeal had been concerned with the question whether any cash of the prisoner which had been paid into an account under the governor’s control pursuant to r 43(3) was held on trust. In the reasoning the Court of Appeal had considered r 43 as a whole. Chadwick LJ stated, at para 29, that r 43(5) did not suggest that a prisoner might be deprived of ownership of confiscated property, and he observed that deprivation of ownership was authorised only by r 43(4) (unclaimed property). Contrary to the defendants’ submission that view was binding on the court and had to be followed, so the defendants’ main contention failed. The alternative contention, relying on the decision of Staughton J in AVX Ltd v EGM Solders (unreported), 1 July 1982 was that an involuntary bailee of property was entitled to destroy it where it was of a noxious character. Irrespective of the correctness and applicability of the principle the contention failed on the facts, because a mobile telephone is not by nature noxious and the circumstances were not such that the mobile telephone in question had somehow been rendered noxious. Other issues had been raised, but they did not need to be resolved.
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