Coleman, R (on the application of) v Governor of HMP Wayland & Ors

Rule 43 of the Prison Rules 1999 distinguishes deprivation of possession from deprivation of ownership. Rule 43(5) permits confiscation of an unauthorised article, but does not authorise permanent confiscation which deprives a prisoner of ownership. That power exists only in the limited circumstances expressly provided by rule 43(4), where property remains unclaimed after the prisoner leaves prison or dies.

A common-law power to destroy property as an involuntary bailee was not determined. Such a power could not assist on the facts because the mobile phone was not shown to be inherently noxious or harmful in the governor’s custody.

The claimant, a serving prisoner, possessed a mobile phone which had been confiscated after it was discovered in his cell. The phone was later destroyed by prison authorities. The Governor’s original policy stating that discovered mobile phones would be destroyed was withdrawn and replaced, but the Secretary of State maintained that the destruction had been lawful.

The claimant sought a declaration that the destruction was unlawful and compensation. The central issue was whether rule 43 of the Prison Rules 1999 authorised permanent confiscation and destruction of prisoners’ property.

1. The claim succeeded. The court declared that the destruction of the phone at issue was unlawful and granted permission to appeal. The question of damages was not determined.

2. The court treated Duggan v Governor of Full Sutton Prison [2004] 1 WLR 1010 as binding. Although Duggan concerned rule 43(3), its reasoning considered rule 43 as a whole and held that rule 43(2) concerned possession rather than ownership, while deprivation of ownership was authorised only by the limited provision in rule 43(4).

3. Applying that reasoning, rule 43(5) did not confer power permanently to confiscate prisoners’ property or deprive them of ownership. It authorised confiscation of unauthorised articles, thereby depriving the prisoner of possession, but did not extend to permanent disposal except in the circumstances expressly contemplated by rule 43(4). The court therefore did not need to determine the vires of the rule or the proper interpretation of PSO 1250.

4. The defendants’ alternative reliance on a common-law power was also unsuccessful on the evidence. The court considered AVX Ltd v EGM Solders, an unreported decision of Staughton J, but found no evidence that the phone was a health hazard or inherently injurious, harmful or unwholesome in the custody of the governor. The court therefore did not decide whether such a common-law power existed or whether the governor was an involuntary bailee.

5. The declaration was made in the form that the destruction of the phone at issue in the case was unlawful. Costs were awarded to the claimant, subject to legal aid taxation.

This was a first-instance judicial review. The court granted permission to appeal to the Court of Appeal, particularly so that the interpretation of rule 43 and PSO 1250 could receive authoritative consideration.