This practice note is the Law Society's view of good practice in this area. It is not legal advice. [Read more]
Practice notes are issued by the Law Society for the use and benefit of its members. They represent the Law Society's view of good practice in a particular area. They are not intended to be the only standard of good practice that solicitors can follow. You are not required to follow them, but doing so will make it easier to account to oversight bodies for your actions.
Practice notes are not legal advice, nor do they necessarily provide a defence to complaints of misconduct or of inadequate professional service. While care has been taken to ensure that they are accurate, up to date and useful, the Law Society will not accept any legal liability in relation to them.
For queries or comments on this practice note contact the Law Society's Practice Advice Service.
The following sections of the SRA Code of Conduct 2011 are relevant to this issue:
There are ten mandatory principles which apply to all those the SRA regulates and to all aspects of practice. The principles can be found in the SRA Handbook.
The principles apply to solicitors or managers of authorised bodies who are practising from an office outside the UK. They also apply if you are a lawyer-controlled body practising from an office outside the UK.
1.1 Who should read this practice note?
Solicitors and their staff who act for people in prison.
1.2 What is the issue?
The illicit possession and use of mobile telephones by prison inmates is becoming an increasing issue.
Prisoners are reportedly using illicitly possessed mobile telephones to make calls from prison including calls to their solicitor's mobile telephone or office landline. You may call them back using a mobile telephone number supplied to them, or to your office staff, without realising that the call may be being made to an illicitly possessed telephone.
This practice note is intended to alert you to this problem and help you avoid the risk of inadvertently committing or procuring the commission of a criminal offence.
2 Calls to and from prisoners on mobile telephones
2.1 The legislation
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.
2.2 Ensuring you do not commit an offence
There is a danger that by making a call to a prisoner's unlawfully possessed mobile telephone you may be, either deliberately or inadvertently, committing a criminal offence.
You must not make a telephone call to a client who is in prison using a mobile telephone number. You must also instruct your staff accordingly.
If you receive a call from a prisoner on a mobile phone, you must immediately terminate the call on establishing that the call is from a mobile telephone and that the person is in prison.
You should inform the caller that they are committing an offence and that you and your staff will not accept calls in such circumstances.
You may wish to warn your caller/client that continued calls from a mobile telephone while they are in prison may lead to the termination of your retainer, because the client is putting you in a position where you may be complicit in the commission of a criminal offence.
3 More information
3.1 Legal and other requirements
3.2 Further products and support
3.2.1 Practice Advice Line
The Law Society provides support for solicitors on a wide range of areas of practice. Practice Advice can be contacted on 020 7320 5675 from 09:00 to 17:00 on weekdays.
The Solicitors Regulation Authority's Professional Ethics Helpline for advice on conduct issues.
The Law Society is grateful to Steven Bird for bringing this issue to the attention of the Law Society, and for his assistance in the drafting of this practice note.
This practice note has been amended to refer to sections of the SRA Code.
Must - A specific requirement in legislation or of a principle, rule, outcome or other mandatory provision in the SRA Handbook. You must comply, unless there are specific exemptions or defences provided for in relevant legislation or the SRA Handbook.
- Outside of a regulatory context, good practice for most situations in the Law Society's view.
- In the case of the SRA Handbook, an indicative behaviour or other non-mandatory provision (such as may be set out in notes or guidance).
These may not be the only means of complying with legislative or regulatory requirements and there may be situations where the suggested route is not the best possible route to meet the needs of your client. However, if you do not follow the suggested route, you should be able to justify to oversight bodies why the alternative approach you have taken is appropriate, either for your practice, or in the particular retainer.
May - A non-exhaustive list of options for meeting your obligations or running your practice. Which option you choose is determined by the profile of the individual practice, client or retainer. You may be required to justify why this was an appropriate option to oversight bodies.
SRA Code - SRA Code of Conduct 2011
2007 Code - Solicitors? Code of Conduct 2007
OFR - Outcomes-focused regulation
SRA - Solicitors Regulation Authority
outcome - outcome
IB -indicative behaviour