106.This section replaces section 40 of the Prison Act 1952 with new sections 40A, 40B and 40C. These new sections clarify the existing law, make changes to the penalties and mode of trial for certain offences and create new offences of taking mobile phones, sound recording devices and cameras into a prison.
107.New section 40A defines the categories of article which are referred to in sections 40B and 40C. There are 3 groups (described as List A, List B and List C) of prohibited items. Subsection (2) provides for List A (dangerous articles and controlled drugs). Subsection (3) provides for List B articles (alcohol, mobile telephones, cameras and sound-recording devices). Subsection (4) defines “camera” and “sound-recording device”. Subsection (5) provides that the reference in list B to a mobile telephone, a camera or a sound-recording device includes component parts and articles designed or adapted for use with those articles as well as the articles themselves. Subsection (6) provides that a list C item is an article or substance that has been prescribed as such by the prison rules.
108.Subsection (7) enables the Secretary of State to amend new section 40A by adding, repealing or modifying an entry to List A or B or any provision for the interpretation of the section. An Order relating to List A articles is exercisable by statutory instrument and is subject to the affirmative procedure. Where an amendment is made to the list of List B articles then the order is subject to the negative resolution procedure. Section 22(2) makes the necessary consequential amendments to section 52 of the Prison Act 1952 which deals with the Secretary of State’s power to make orders under that Act.
109.New section 40B makes it an offence to convey List A articles into or out of prison without authorisation. Subsection (1) details the type of conduct which is covered by the new offence. Subsections (2) to (5) define “authorisation” and detail how the authorisation may be given and by whom. Subsection (6) sets out the maximum penalty and mode of trial for the new offence.
110.New section 40C makes it an offence to convey List B or C articles into or out of prison. Subsections (1) (List B) and (2) (List C) detail the type of conduct which is prohibited by the new offences. A person commits an offence if he carries out a listed activity without authorisation. Subsection (4) provides for defences where the accused individual reasonably believed he had authorisation or where there was an overriding public interest which justified the doing of the prohibited act. Subsections (5) (List B) and (6) (List C) set out the maximum penalty and mode of trial for the new offences.
