Prisons erroneously open Rule 39 legal letters – inside information and inside information


Prisons often break the law by reading prisoners’ private legal letters, the Ombudsman for Prisons and Probation has found.

Last year the Ombudsman upheld 26 complaints from prisoners in England and Wales that staff had breached Rule 39 of the Prison Rules, which guarantees the privacy of correspondence between solicitors and their imprisoned clients. A similar number of Rule 39 complaints were investigated but rejected – meaning around 50 prisoners felt their rights had been violated.

Rule 39 states that letters sent by lawyers, courts, or certain counseling organizations to their clients in prison, which are clearly marked as privileged correspondence, should be forwarded directly to the prisoner, rather than being opened by staff like normal letters. Prisoners writing to their lawyers can seal the letter before taking it to the post office so staff cannot read it.

Most of the confirmed complaints concerned incoming legal mail which was opened by staff before being handed to the prisoner. Others were reading or failing to send outbound legal mail; incoming confidential letters are forwarded to the wrong prisoner; and legal correspondence is placed in stored property rather than being handed over to the prisoner.

The number of confirmed complaints became known when the Ombudsman published a list of all complaints from prisoners from July 2021 to June 2022 and their findings in response to a freedom of information request. The list did not indicate which prison each complaint came from.

The Ombudsman receives about 4,000 complaints from detainees each year, about half of which can be investigated. For the complaint to be admissible, the prisoner must already have gone through the full process within the prison, which includes filing an initial written complaint and the subsequent appeals procedure if he disagrees. About a third of the complaints received by the Ombudsman relate to lost or damaged property. Others cover a wide range of topics – from employee behavior to jobs and pay to the quality of food.

Summaries of last year’s complaints included on the Ombudsman’s list include ‘Rule 39 mail will be opened – confirmed, mediated’ and ‘Opening his Rule 39 mail and only copies allowed – confirmed with recommendations’. One of the letters unlawfully opened by staff was from the Ombudsman herself.

Regular incoming mail for prisoners is usually read by staff to ensure the content does not violate security regulations and is often tested for drugs such as Spice. However, Rule 39 of the Prison Rules 1999 – enshrined in law and adopted by Parliament as a Statutory Instrument – states that correspondence between a prisoner and his counsel may not be opened, read or stopped unless the Governor has “reasonable reason to believe that it contains an illegal confinement” or “has reasonable grounds to believe that its contents endanger the security of the prison or the safety of others, or are otherwise criminal in nature”. In such cases the prisoner shall be given an opportunity to be present when the letter is opened and told whether it will be read or stopped.

In response to the figures for confirmed complaints, a prison service spokesman said: “Staff are regularly reminded of the rules for legal letters and we have implemented a new barcode system to ensure this type of correspondence is secure.”

The barcode system, described in an updated Prison Service Instruction released this month, means attorneys and courts have the option to use a new service called Send Legal Mail, which allows them to attach a barcode to the envelope of confidential mail sent to Prisoners sent is easier for staff to spot.

In recent court cases leading to the conviction of people involved in smuggling drugs into prisons, it has emerged that some sent out legal letters laced with Spice-like drugs to avoid detection.

The Ombudsman has not yet published any figures on the number of Rule 39 complaints that it has received or acknowledged. However, in its 2020/21 annual report, it gave an example of a case from an unnamed prison where a prisoner, known as Mr M., had been instructed to hand over outgoing Rule 39 legal letters in unsealed envelopes so that staff “ Browsing” the content – ​​which is against the law. The prisoner complained to the prison and eventually to the Ombudsman, but following his complaint the prison issued new instructions to the staff, who still told them to check Rule 39 items before sealing them.

The Ombudsman concluded: “We upheld Mr M’s complaint on the grounds that the prison is still in breach of relevant guidelines and recommended that they provide us with evidence that staff now have the proper guidance on how to deal with posts received under Rule 39. We also noted that in response to Mr M’s complaint, the prison had said it would write an apology letter, which had not happened. We have recommended that they do so and demonstrate this to the PPO.”


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